J-S12026-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

FRANK PICCOLO,

Appellant No. 1060 EDA 2014

Appeal from the Judgment of Sentence November 15, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0002621-2013, CP-51-CR-0002622-

2013, CP-51-CR-0002645-2013

BEFORE: BOWES, SHOGAN, and FITZGERALD,*JJ.

DISSENTING MEMORANDUM BY SHOGAN, J.: FILED JUNE 04, 2015

Because I believe our rules of appellate procedure require quashal of 

this appeal, I respectfully dissent.

After reviewing Appellant’s pre-sentence investigation report and 

mental health evaluation, the trial court sentenced Appellant on 

November 15, 2013, to incarceration for an aggregate term of one to two 

years, followed by six and one-half years of probation. Appellant did not 

immediately advise his attorney that he wanted to file a post-sentence 

motion. Rather, Appellant allegedly sent a letter dated November 18, 2013, 

requesting counsel to file a post-sentence motion. Counsel claims he did not 

____________________________________________

*

 Former Justice specially assigned to the Superior Court.
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receive the letter until November 27, 2013, due to a problem with the mail. 

Upon receipt of the letter, counsel filed a post-sentence motion the same 

day, requesting the trial court to accept the filing nunc pro tunc. Post 

Sentence Motion, 11/27/13, at ¶ 6. Almost three months later, the trial 

court accepted the post-sentence motion nunc pro tunc, but denied it. 

Order, 3/31/14.

“Jurisdiction is vested in the Superior Court upon the filing of a timely 

notice of appeal.” Commonwealth v. Green, 862 A.2d 613, 615 (Pa. 

Super. 2004) (en banc) (citation omitted). “A direct appeal in a criminal 

proceeding lies from the judgment of sentence.” Commonwealth v. 

Preacher, 827 A.2d 1235, 1236 n.1 (Pa. Super. 2003). Sitting en banc, 

this Court has interpreted the language “imposition of sentence” as the date 

the trial court pronounced the sentence in open court. Green, 862 A.2d at 

618–619. “The time for filing an appeal can be extended beyond [thirty] 

days after the imposition of sentence only if the defendant files a timely 

post-sentence motion.” Id. at 618; Pa.R.A.P. 720(A)(2). Pursuant to 

Pa.R.Crim.P. 720(A)(1), a post-sentence motion must be filed no later than 

ten days after the imposition of sentence. An untimely post-sentence 

motion does not toll the thirty-day appeal period. Green, 862 A.2d at 618. 

In the case at hand, Appellant’s sentence was imposed on 

November 15, 2013; he had until November 25, 2013, to file a timely postsentence motion. Pa.R.Crim.P. 720(A)(1). However, Appellant filed his 
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post-sentence motion on November 27, 2013, twelve days after entry of the 

judgment of sentence. As Appellant filed an untimely post sentence motion, 

the appeal period could be tolled “only if the trial court accepted it under its 

limited authority to allow the filing of a post-sentence motion nunc pro 

tunc.” Commonwealth v. Capaldi, ___ A.3d ___, 2015 PA Super 51 (Pa. 

Super. 2015) (filed March 17, 2015).

“[A] post-sentence motion nunc pro tunc may toll the appeal period, 

but only if two conditions are met.” Capaldi, ___ A.3d at ___, 2015 PA 

Super 51 at *3 (citing Commonwealth v. Dreves, 839 A.2d 1122 (Pa. 

Super. 2003) (en banc)) (emphasis supplied).

First, within 30 days of imposition of sentence, a defendant 

must request the trial court to consider the post-sentence 

motion nunc pro tunc. The request for nunc pro tunc relief is 

separate and distinct from the merits of the underlying postsentence motion. Second, the trial court must expressly 

permit the filing of a post-sentence motion nunc pro tunc, also 

within 30 days of imposition of sentence. If the trial court does 

not expressly grant nunc pro tunc relief, the time for filing an 

appeal is neither tolled nor extended. Moreover, the trial court’s 

resolution of the merits of the late post-sentence motion is no 

substitute for an order expressly granting nunc pro tunc relief.

Id. at 3–4 (quoting Dreves, 839 A.2d at 1128–1129, n.6) (internal 

quotation marks and citations omitted) (emphasis supplied).

Applying the above standard, I submit that Appellant’s untimely postsentence motion did not toll the appeal period. Pa.R.Crim.P. 720(A)(2) does 

not operate to toll the appeal period because Appellant failed to file a timely 

post-sentence motion. Capaldi, slip op. at 4 (citing Green, 862 A.2d at 
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618). Additionally, Dreves does not apply because Appellant did not satisfy 

both of the prerequisites for nunc pro tunc relief. Regarding the first 

prerequisite, Appellant did include in his untimely post-sentence motion a 

request that the trial court receive it as filed nunc pro tunc because the 

untimeliness was “due to issues with the mail.” Post Sentence Motion, 

11/27/13, at ¶ 6. Giving Appellant the benefit of the doubt that this 

qualified as a request for nunc pro tunc relief with reasons to warrant it, the 

second prerequisite remains unfulfilled. The trial court did not expressly 

grant permission to file the post-sentence motion nunc pro tunc inside the 

original thirty-day appeal period. Even the Majority acknowledges that “the 

trial court purported to expressly grant Appellant’s request to consider his 

post-sentence motion nunc pro tunc.” Majority at 6 (emphasis supplied). 

The trial court’s action of accepting Appellant’s untimely post-sentence 

motion as filed nunc pro tunc and denying it on the merits “is not a proper 

substitute for an order expressly granting the right to file a post-sentence 

motion nunc pro tunc.” Capaldi, slip op. at 5 (citation omitted).

Because Appellant’s post-sentence motion nunc pro tunc did not toll 

the appeal period, he was required to file his appeal within thirty days of 

imposition of sentence. Pa.R.Crim.P. 720(A)(3); Pa.R.A.P. 903(c)(3). 

Appellant was sentenced on November 15, 2013. He filed his appeal on April

4, 2014—140 days later. Thus, this appeal is untimely. Moreover, unlike 

the Majority, I discern no extraordinary circumstances—a breakdown in the 
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court’s operations, for example—that would excuse Appellant’s late filings. 

Indeed, the record indicates that Appellant was properly advised of the time 

for filing post-sentence motions and an appeal at sentencing. N.T., 

11/15/13, at 18.

I acknowledge that, after implicitly granting Appellant’s motion for 

nunc pro tunc relief, the trial court misinformed Appellant that he had thirty 

days to appeal from its order denying his post-sentence motion. However, 

the trial court’s mistake occurred after the appeal period had already 

expired, a fact the Majority acknowledges. Majority at 4.1 Hence, as of the 

date of any breakdown in the court system, Appellant was already out of 

time. 

In addition, because the trial court’s initial failure to act and 

subsequent misinformation arose beyond the appeal period, any breakdown 

in the judicial system was of no consequence.2 Capaldi illustrates this 

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1

 Indeed, the Majority opines, “Cautious counsel should have filed an appeal 

within thirty days.” Majority at 4.

2

 The Majority cites to numerous cases in support of its position that a 

breakdown in the judicial system occurred herein. However, I note that the 

post-sentence motions filed in Braykovich and Perry were timely. 

Similarly, none of the defendants in Patterson, Bogden, Hurst, and Katz

filed a motion within thirty days of sentencing requesting the trial court to 

consider the untimely post-sentence motion nunc pro tunc. Additionally, in 

Coolbaugh, the trial court erred in advising the defendant of his postsentence rights after it imposed sentence, not after the appeal period had 

expired. Given such relevant procedural dissimilarities, the Majority’s 

reliance on these cases appears untenable.
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point.3 Therein, we distinguished Commonwealth v. Patterson, 940 A.2d 

493 (Pa. Super. 2007), in which “we held a breakdown in the court’s 

operations occurred where [the trial court] denied the defendant’s untimely 

post-sentence motion within the appeal period, but failed to apprise him he 

still had fifteen days to file an appeal.” Capaldi, ___ A.3d at ___, 2015 PA 

Super 51 at *6 n.3 (citing Patterson, 940 A.2d at 499–500). Contrarily, 

the Capaldi Court indicated that no breakdown in the court’s operations 

existed where “the trial court denied Appellant’s untimely post-sentence 

motion . . . after the appeal period expired.” Id. The case sub judice 

warrants the same conclusion.

Because Appellant’s post-sentence motion and appeal were untimely, I 

conclude we lack jurisdiction to hear this appeal. Burks, 102 A.3d at 500. 

Lacking jurisdiction, quashal is appropriate. Accord Capaldi, ___ A.3d at 

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3

 The instant trial court’s purported grant of nunc pro tunc relief strikes me 

as implicit a grant of relief as the trial court in Capaldi scheduling a hearing 

on the defendant’s untimely “Post-Sentence Motion for Nunc Pro Tunc

Relief,” neither of which was a proper substitute for an order expressly 

granting the right to file a post-sentence motion nunc pro tunc pursuant to 

the second prong of Dreves. Furthermore, the fact that the defendant in 

Capaldi was not precluded from seeking reinstatement of his direct appeal 

rights nunc pro tunc through the PCRA should not determine whether this 

Court has jurisdiction to entertain an untimely appeal. Accord

Commonwealth v. Brown, 943 A.2d 264 (Pa. 2008) (quashing appeal as 

untimely based on underlying PCRA petition being filed outside one-year 

time bar). In the case at hand, no breakdown in the court’s operations 

existed where “the trial court denied Appellant’s untimely post-sentence 

motion . . . after the appeal period expired.” Capaldi, 2015 PA Super 51 at 

*6 n.3
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___, 2015 PA Super 51 at *6 (quashing untimely appeal for lack of 

jurisdiction). Therefore, I would quash.