J-S74019-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

*Retired Senior Judge assigned to the Superior Court.

IN THE INTEREST OF: B.D., A MINOR : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

:

:

APPEAL OF: B.D. : No. 193 EDA 2014

Appeal from the Dispositional Order February 26, 2013,

Court of Common Pleas, Philadelphia County,

Criminal Division at No(s): CP-51-JV-10000240-2012

and CP-51-JV-10000254-2012

BEFORE: BENDER, P.J.E, DONOHUE and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.: FILED JANUARY 05, 2015

B.D. appeals from the February 26, 2013 order entered by the 

Philadelphia County Court of Common Pleas following his adjudication of 

delinquency for criminal conspiracy, criminal mischief, criminal trespass, and 

theft by unlawful taking before the Delaware County Court of Common 

Pleas.1 Finding the appeal untimely, we quash.

The history of the case, as summarized by the Philadelphia County 

juvenile court, is as follows:

On February 4, 2012, [B.D.] was arrested in 

Delaware County and charged with Criminal Mischief 

(M2) and Criminal Conspiracy to Criminal Mischief 

(M2) in violation of 18 Pa.C.S.A. § 3304 on Delaware 

County Petition # 2012-000349, Philadelphia Docket 

Number CP-51-JV-1000240-2012.

On March 30, 2012, [B.D.] was arrested in 

Delaware County and charged with Defiant Trespass 

(M3) and Theft by Unlawful Taking (M3) in violation 

 

1

 18 Pa.C.S.A §§ 903, 3304, 3503, 3921.
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of 18 Pa.C.S.A. § 3503(b)(1)(iii) and 18 Pa.C.S.A. 

§ 3921 on Delaware County Petition # 2012-000517, 

Philadelphia Docket Number CP-51-JV-1000254-

2012.

On September 13, 2012, [B.D.] and his 

counsel, Howard Cohen, Esquire, appeared before 

the Honorable Barry Dozor of the Delaware County

Court of Common Pleas — Juvenile Division. [B.D.] 

entered admissions on both petitions at that time. 

[B.D.] was ordered to complete 72 hours of 

community service with an additional 32 hours in lieu 

of Court Costs. Stay Away Orders were entered on 

both petitions. In addition, Judge Dozor ordered 

restitution in the amount of $3,706.12 on Delaware 

County Petition # 2012-000349, Philadelphia Petition 

# CP-51-JV-1000240-2012. Judge Dozor did not 

order restitution [on] Delaware County Petition 

# 2012-000517, Philadelphia County Petition # CP51-JV-1000254-2012.

On September 17, 2012, [B.D.] was 

adjudicated delinquent on both petitions before 

Judge Dozor. On October 1, 2012, both [p]etitions 

were transferred to Philadelphia County for 

supervision. 

The matter was listed before the Honorable 

Robert J. Rebstock on November 27, 2012, but 

continued until January 22, 2013. On January 22, 

2013, the [c]ourt was not sitting and the matter was 

again continued until February 26, 2013.

On February 26, 2013, the [c]ourt placed 

[B.D.] on probation and directed that restitution be 

paid as ordered by Judge Dozor. In addition, this 

[c]ourt ordered random drug screens, mandatory 

school, no unexcused absences/latenesses and the 

completion [of] community service.

On June 3, 2013, the [c]ourt appointed the 

Defender Association of Philadelphia, and the matter 

was continued until September 5, 2013.
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On September 5, 2013, the [c]ourt ordered 

that [B.D.] remain on [p]robation with the same 

conditions as previously ordered. 

On September 16, 2013, [B.D.]’s [a]ttorney 

filed a Motion to Rescind Restitution Order Nunc Pro 

Tunc [before the Philadelphia County juvenile court]. 

The [c]ourt denied the motion on October 3, 2013.

On October 25, 2013, [B.D.]’s [a]ttorney filed 

a Motion for Allowance of Appeal Nunc Pro Tunc. By 

operation of law, the Motion for Allowance of Appeal 

Nunc Pro Tunc was denied.

Juvenile Court Opinion, 6/4/14, at 1-3 (record citation omitted).

On December 26, 2013, B.D. filed a notice of appeal and thereafter 

complied with the juvenile court’s order requiring the filing of a concise 

statement of errors complained of on appeal. B.D. presents one issue on 

appeal for our review: “Was restitution improperly ordered without 

determining [B.D.]’s ability to pay?” B.D.’s Brief at 2.

Prior to addressing the merits of this issue, we must first consider the 

Commonwealth’s contention that the appeal is untimely. See

Commonwealth’s Brief at 8-9. The Rules of Juvenile Court Procedure state 

that in the absence of a timely filed post-dispositional motion, a juvenile 

must file a notice of appeal from a dispositional order within thirty days of 

that order. Pa.R.J.C.P. 620(B)(3). For a post-dispositional motion to be 

timely, the juvenile must file it within ten days of the imposition of the 
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dispositional order. Pa.R.J.C.P. 620(B)(1). Following the timely filing of a 

post-dispositional motion, the juvenile must file a notice of appeal 

(a) within thirty days of the entry of the order 

deciding the motion; 

(b) within thirty days of the entry of the order 

denying the motion by operation of law in cases in 

which the judge fails to decide the motion; or 

(c) within thirty days of the entry of the order

memorializing the withdrawal in cases in which a 

party withdraws the motion.

Pa.R.J.C.P. 620(B)(2).

The record in this case reflects a procedural morass. The order 

complained of on appeal is the February 26, 2013 order entered by the 

Philadelphia County juvenile court. See Notice of Appeal, 12/26/13. At that 

hearing, the Philadelphia County juvenile court accepted supervision over 

B.D. and entered the following order: “The juvenile shall be placed on 

[p]robation under the supervision of the Philadelphia Juvenile Probation 

Department. Restitution to be paid as ordered in Delaware County, 

[r]andom drug screens, [m]ust attend school, no unexcused absences, 

lateness, cutting or suspensions, complete community service hours.” 

Juvenile Court Order, 2/26/13. The record reflects that B.D. did not have 

counsel at this hearing; it was not until June 3, 2013 that the juvenile court 

appointed counsel to represent B.D. in the Philadelphia proceedings, at 
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which time it appointed current counsel, Defender Association of 

Philadelphia. See N.T., 2/26/13, at 7; Juvenile Court Order, 6/3/13.

At the September 5, 2013 review hearing, counsel for B.D. attempted 

to question the juvenile court regarding the restitution order. The juvenile 

court informed counsel that any question regarding the restitution order 

must be addressed to the Delaware County juvenile court. Nonetheless, on 

September 16, 2013, counsel for B.D. filed a post-dispositional motion nunc 

pro tunc before the Philadelphia County juvenile court requesting that the 

court rescind the order requiring B.D. to pay restitution, alleging:

(1) [B.D.] was unrepresented by counsel at the 

disposition hearing at which restitution was ordered, 

and (2) it failed to inquire into [B.D.]’s ability to pay 

before ordering restitution, and (3) the facts alleged 

in the petitions and supporting documents generated 

in Delaware County fail to sufficiently assert the 

basis for the restitution amount ordered.

See Motion to Rescind Restitution Order Nunc Pro Tunc, 9/16/13. On 

October 3, 2013, the juvenile court denied that motion. Juvenile Court 

Order, 10/3/13.

On October 25, 2013, counsel for B.D. filed a motion for permission to 

appeal the February 26, 2013 order nunc pro tunc in the Philadelphia County 

juvenile court. Motion for Allowance of Appeal Nunc Pro Tunc, 10/25/13. 

The court took no action on that motion for more than thirty days, resulting 

in its denial by operation of law. Juvenile Court Order, 12/19/13; see also

Pa.R.J.C.P. 625(E)(1) (stating that if the juvenile court fails to decide a 
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motion for nunc pro tunc relief within thirty days, the motion is deemed 

denied by operation of law).

Counsel for B.D. subsequently filed a notice of appeal to this Court on 

December 26, 2014. As stated hereinabove, however, he appeals from the 

February 26, 2013 order, the notice of appeal for which was filed ten months 

after the order. Counsel makes no argument regarding the juvenile court’s 

denial of his request to appeal the February 26, 2013 order nunc pro tunc or 

the denial of his motion for post-dispositional relief nunc pro tunc, both of 

which, as explained below, are final, appealable orders.

Although not developed in the argument section of his appellate brief, 

in a footnote in the statement of facts, counsel for B.D. appears to suggest 

that a direct appeal nunc pro tunc is a matter of right in a juvenile 

proceeding. See B.D.’s Brief at 5 & n.1 (citing In Interest of A.P., 617 

A.2d 764 (Pa. Super. 1992) (en banc), aff’d, 639 A.2d 1181 (Pa. 1994)). In 

A.P., the court adjudicated the juvenile delinquent and placed him on 

probation. In Interest of A.P., 617 A.2d at 766. Approximately two 

months later, new counsel from the same public defender’s office that 

employed trial counsel filed a motion for permission to file an appeal nunc 

pro tunc, which the juvenile court denied. Id. Counsel filed a notice of 

appeal on A.P.’s behalf, asserting, inter alia, that the juvenile court erred by 

denying the motion to appeal nunc pro tunc “where the failure to timely file 

a notice of appeal was due to ineffective assistance of counsel that was 
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apparent on this record[.]” Id.2 Finding that a juvenile has the right to 

appeal from a dispositional order and that a juvenile also has the right to 

effective assistance of counsel, this Court concluded that counsel’s failure to 

file a direct appeal from the dispositional order, in the absence of A.P.’s 

express waiver, constituted per se ineffective assistance of counsel. Id. at 

767. Because A.P., as a juvenile adjudicated delinquent, had no recourse to 

challenge trial counsel’s ineffectiveness pursuant to the Post Conviction 

Relief Act, the only remedy available to A.P. at that time for the denial of his 

constitutional right to appeal the dispositional order because of counsel’s 

ineffectiveness was to permit the filing of a direct appeal nunc pro tunc. Id.

at 768. We therefore reversed the juvenile court’s denial of A.P.’s motion to 

appeal nunc pro tunc and proceeded to decide the substantive issues raised 

on appeal. Id.

In the years since we decided A.P., our Supreme Court amended the 

Rules of Juvenile Court Procedure, inter alia, setting forth procedures for the 

filing and review of motions for nunc pro tunc relief in a delinquency matter. 

 

2

 As the Court in A.P. observed, generally, “a public defender may not 

argue the ineffectiveness of another member of that public defender’s office 

who represented the client at a previous stage in the proceedings.” 

Commonwealth v. Fetzner, 539 A.2d 890, 892 (Pa. Super. 1988). 

However, “an exception to the general rule was expanded to allow one 

member of a public defender’s office to raise the ineffectiveness of another 

member of the same office provided that reversible error was apparent on 

the record.” Id. (citing Commonwealth v. McNeal, 396 A.2d 424, 426 

(Pa. Super. 1978) (en banc)).
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See Pa.R.J.C.P. 622, 625.3 Pursuant to Rule 622(A), “[a] motion for nunc 

pro tunc relief shall be filed by the juvenile with the clerk of courts in the 

court in which the alleged error occurred as soon as possible but no later 

than sixty days after the date that the error was made known.” Pa.R.J.C.P. 

622(A). Rule 622(C) sets forth a list of what must be included in a motion 

for nunc pro tunc relief. Rule 622(D) provides the Commonwealth the 

opportunity to file an answer. Finally, Rule 625 governs the disposition of a 

motion for relief nunc pro tunc. See generally Pa.R.J.C.P. 625. It is 

therefore clear that reinstatement of direct appeal rights nunc pro tunc are 

not automatic, but such a request may be granted in appropriate cases.4 

Moreover, Rule 625(F) indicates that the denial of a motion for relief nunc

pro tunc is itself a final, appealable order. See Pa.R.J.C.P. 625(F).

There is no question that B.D. was entitled to counsel at the February 

26, 2013 hearing.5 Although the record reflects that counsel for B.D. raised 

 

3

 Rule 622 anticipates the raising of claims of counsel’s ineffectiveness in a 

motion for relief nunc pro tunc, rendering the continued viability of the 

analysis in A.P. doubtful. See Pa.R.J.C.P. 622(B) (“If alleged ineffective 

assistance of counsel is the basis for the motion, counsel is to withdraw 

pursuant to Rule 150(C) and the judge shall assign new counsel.”).

4

 Curiously, although Rule 622 became effective on April 1, 2012, and 

counsel’s motions for nunc pro tunc relief were filed on September 16, 2013 

and October 25, 2013, respectively, neither motion references Rule 622 or 

its requirements.

5

 The law is clear that a juvenile is entitled to representation “at all stages 

of any proceedings” held under the Juvenile Act. 42 Pa.C.S.A. § 6337. A 

child in a delinquency matter is “presumed indigent,” and “[i]f child appears 
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this issue in the September 16, 2013 post-dispositional motion nunc pro 

tunc, counsel did not appeal from the denial of that motion and makes no 

argument on appeal regarding the juvenile court’s decision to proceed in the 

absence of counsel representing B.D. at the February 26, 2013 hearing. 

Rather, B.D. filed an untimely appeal from the February 26, 2013 order, 

raising only the propriety of the adoption of the Delaware County juvenile 

court’s restitution order without first holding a hearing on B.D.’s ability to 

pay. See B.D.’s Brief at 8-10. We therefore have no jurisdiction to decide 

this appeal and powerless to address the substantive issue raised or the 

clear error committed by the juvenile court in failing to provide B.D. with 

counsel at that hearing. See Commonwealth v. Williams, __ A.3d __, 

2014 WL 3672870, *3 (Pa. July 21, 2014) (stating that “an appellant’s 

failure to appeal timely an order generally divests the appellate court of its 

jurisdiction to hear the appeal”). 

In support of its conclusion that we are permitted to decide the issue 

raised on appeal, the Dissent relies upon In re J.M.P., 863 A.2d 17 (Pa. 

 

at any hearing without counsel, the court shall appoint counsel for the child 

prior to the commencement of the hearing.” 42 Pa.C.S.A. § 6337.1(b)(1). 

The record reflects that the Commonwealth alerted the juvenile court in the 

middle of the proceeding, prior to the court entering its dispositional order, 

that B.D. was unrepresented. N.T., 2/26/13, at 7. The juvenile court 

responded by saying: “That’s because he had an attorney out in Delaware 

County,” but then failed to appoint counsel to represent B.D. at that hearing 

or continue the hearing for counsel from Delaware County to be present. 

Id. 
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Super. 2004), wherein this Court stated that appellate counsel’s failure to 

preserve the appellate rights of a juvenile adjudicated delinquent constitutes 

per se ineffective assistance of counsel. Dis. at 2 (citing In re J.M.P., 863 

A.2d at 20). The Dissent thus concludes, “Because counsel was per se

ineffective in failing to preserve B.D.’s appellate rights, in combination with 

the breakdown of the system by failure to appoint counsel, I conclude that 

this Court should not quash this appeal and should consider the merits.” Id.

at 3. 

Like the Dissent, it would be our preference to reach the merits of the 

issue raised on appeal. The Dissent, however, omits from its discussion that 

in J.M.P., we found that we could not review the merits of the issues raised 

in the untimely appeal nunc pro tunc6 pursuant to a finding that counsel was 

ineffective per se, as J.M.P. did not include an ineffectiveness claim on 

appeal. In re J.M.P., 863 A.2d at 20. Because “an appellate court is not to 

raise sua sponte issues which it perceives in the record where those issues 

 

6

 In J.M.P., counsel originally filed a timely notice of appeal, but 

erroneously filed a praecipe to withdraw the appeal while it was pending 

before this Court. In re J.M.P., 863 A.2d at 18. Counsel then petitioned 

the juvenile court to reinstate J.M.P.’s appeal rights nunc pro tunc, which the

juvenile court granted. Id. Counsel filed the notice of appeal two days after 

the end of the appeal period. Id. Counsel for J.M.P. advised this Court that 

she was never informed that she had to file a notice of appeal following the 

juvenile court’s reinstatement of J.M.P.’s appeal rights nunc pro tunc; she 

was under the mistaken belief that once the juvenile court granted the 

request that the appeal would proceed without any additional filings or 

action. Id. When the juvenile court informed her, two days after the 

appeals period ended that she in fact had to file a notice of appeal, counsel 

did so immediately. Id.
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are not presented at the appeal level,” we found that J.M.P. was not entitled 

to relief on that basis. Id. (citing Commonwealth v. McKenna, 383 A.2d 

174, 179 (Pa. 1978)).

Rather, we found we could decide the merits of the appeal because 

counsel for J.M.P. failed to timely file the notice of appeal as a result of the 

juvenile court’s failure to inform counsel that she must file a notice of appeal 

within thirty days of the order reinstating J.M.P.’s appeal rights nunc pro 

tunc. Id. at 21. We found that this constituted “a breakdown in the court’s 

operation such that we are justified in declining to quash the appeal.” Id. 

In the case at bar, counsel for B.D. did not raise an ineffectiveness 

claim on appeal. Thus, pursuant to J.M.P., we are precluded from sua 

sponte finding that counsel was ineffective per se and deciding the merits of 

the issue raised on that basis. See id. at 20. Nor does counsel allege that 

the failure to inform B.D. of his appellate rights at the February 26, 2013 

hearing caused the untimely filing of the instant appeal. To the contrary, 

the record reflects that counsel clearly recognized that any appeal from the 

February 26, 2013 order was untimely, as she expressly requested to file an 

appeal nunc pro tunc from that order. Therefore, unlike in J.M.P., the 

juvenile court’s failure to inform B.D. of the time for filing an appeal from 

that order does not provide justification for deciding the issue raised. See 

id. at 21.
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This does not leave the B.D. without an avenue for relief. As stated 

above, Rule 622 of the Rules of Juvenile Court Procedure permit a juvenile to 

file for nunc pro tunc relief within “sixty days after the date that the error 

was made known.” Pa.R.J.C.P. 622(A). The Rule specifically permits the 

basis for this motion to be a claim of counsel’s ineffectiveness for failing to 

preserve his right to appellate review or to properly effectuate his appeal. 

Pa.R.J.C.P. 622(B).7

Based upon the untimeliness of the appeal and the arguments raised 

on appeal, we are without jurisdiction to decide the appeal or to excuse the 

untimeliness. See Williams, 2014 WL 3672870 at *3; In re J.M.P., 863 

A.2d at 20-21. As such, we are constrained to quash the appeal.

Appeal quashed.

Bender, P.J.E. joins the Memorandum.

Strassburger, J. files a Dissenting Memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/5/2015

 

7

 Rule 622(B) states: “If alleged ineffective assistance of counsel is the 

basis for the motion, counsel is to withdraw pursuant to Rule 150(C) and the 

judge shall assign new counsel.” Pa.R.J.C.P. 622(B).