J-S60014-18

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DANIEL GILBERT 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 708 MDA 2018

Appeal from the Judgment of Sentence February 6, 2018

In the Court of Common Pleas of Sullivan County Criminal Division at 

No(s): CP-57-CR-0000061-2017

BEFORE: SHOGAN, J., NICHOLS, J., and STRASSBURGER*, J.

MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 13, 2018

Appellant, Daniel Gilbert, appeals from the judgment of sentence 

entered on February 6, 2018, in the Court of Common Pleas of Sullivan 

County. After careful consideration, we quash the appeal and remand for 

further proceedings.

This appeal stems from charges filed against Appellant for crimes related 

to his theft of a pickup truck in Cherry Township, Sullivan County, and his 

eventual disposition of that truck in a Demolition Derby in New York state. 

Appellant entered a guilty plea to one count of theft by unlawful taking or 

disposition,1 a felony of the third degree,2 on January 17, 2018. On 

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1 18 Pa.C.S. § 3921(a).

2 18 Pa.C.S. § 3903(a.1).
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February 6, 2018, Appellant was sentenced to confinement in a state 

correctional institution for forty to eighty months, was directed to pay the 

costs of prosecution and a $500.00 fine, and was ordered to make restitution 

to Progressive Insurance in the amount of $10,648.68. Sentencing Order, 

2/12/18, at 1. Appellant was not eligible for a Recidivism Risk Reduction 

Incentive program minimum sentence due to his prior criminal record.

On February 16, 2018, Appellant filed a timely motion for 

reconsideration of his sentence. Prior to a ruling on the motion by the trial 

court, Appellant filed a notice of appeal on March 6, 2018. Both Appellant and 

the trial court complied with Pa.R.A.P. 1925. 

On August 2, 2018, this Court issued a rule to show cause why this 

appeal should not be quashed as interlocutory. Counsel failed to file a 

response. On August 20, 2018, this Court entered an order referring the issue 

to the merits panel for consideration.

Appellant presents the following issue for our review: “Did the Trial 

Court commit an abuse of discretion in sentencing [Appellant] to a sentence 

at the top of the standard range, despite the fact that [Appellant] waived his 

preliminary hearing and entered a guilty plea in the above-captioned matter?” 

Appellant’s Brief at 4. 

“As a preliminary matter, we must first ascertain whether the judgment 

of sentence is properly appealable, because the question of appealability 
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implicates the jurisdiction of this court.”

3

 Commonwealth v. Borrero, 692 

A.2d 158, 159 (Pa. Super. 1997). This Court lacks jurisdiction over nonappealable orders. Commonwealth v. Claffey, 80 A.3d 780, 782 (Pa. Super. 

2013); see also Commonwealth v. Kennedy, 876 A.2d 939, 943 (Pa. 2005) 

(indicating appellate court lacks jurisdiction over non-appealable orders).

The Judicial Code provides that the Superior Court shall have exclusive 

appellate jurisdiction of all appeals from final orders of the courts of common 

pleas, except such classes of appeals as are within the exclusive jurisdiction 

of the Supreme Court or the Commonwealth Court. 42 Pa.C.S. § 742. In the 

context of a criminal proceeding where, as here, the case has proceeded 

through the sentencing phase, the appeal lies from the entry of the final 

judgment of sentence. Borrero, 692 A.2d at 159. Pursuant to the 

Pennsylvania Rules of Criminal Procedure, the question of whether the 

judgment of sentence is final and appealable depends upon whether a 

defendant files post-sentencing motions.

When post-sentencing motions are not filed, the judgment of sentence 

constitutes a final and appealable order for purposes of appellate review, and 

any appeal therefrom must be filed within thirty days of the imposition of 

sentence. Pa.R.Crim.P. 720(A)(3). If post-sentencing motions are timely 

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3 We note that the Commonwealth asserts that this Court does not have 

jurisdiction over this appeal, as it was not final at the time the appeal was 

filed. Commonwealth’s Brief at 1. 
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filed, however, the judgment of sentence does not become final for purposes 

of appeal until the trial court disposes of the motion, or the motion is denied 

by operation of law. Pa.R.Crim.P. 720(A)(2)(a) and (b). If the motion is 

denied by operation of law, the clerk of courts shall enter an order reflecting 

that denial. Pa.R.Crim.P. 720(B)(3)(c). Moreover, the comments to Rule 720

explicitly provide that “[n]o direct appeal may be taken by a defendant while 

his or her post-sentence motion is pending.” Pa.R.Crim.P. 720 cmt. 

In this case, the certified record reflects that Appellant was sentenced 

on February 6, 2018. He thereafter exercised his right to file post-sentence

motions on February 16, 2018, within the ten-day period prescribed by 

Pa.R.Crim.P. 720(A)(1). Once the post-sentence motion was timely filed, the 

trial court had 120 days in which to decide the motion unless, for good cause 

shown, a thirty-day extension of time in which to decide the motion was 

granted. Pa.R.Crim.P. 720(B)(3)(a).4If the motion was not decided within 

120 days or within the thirty-day extension period, it would have been deemed 

denied by operation of law. Id.

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4 Pa.R.Crim.P. 720(B)(3)(a) provides as follows:

(a) Except as provided in paragraph (B)(3)(b) [regarding a 30-

day extension of time], the judge shall decide the post-sentence 

motion, including any supplemental motion, within 120 days of 

the filing of the motion. If the judge fails to decide the motion 

within 120 days, or to grant an extension as provided in paragraph 

(B)(3)(b), the motion shall be deemed denied by operation of law.
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Appellant, however, prematurely filed his notice of appeal on March 6, 

2018, well before the 120-day period expired and before the trial court ruled 

on the motion.

5 Although the 120-day period obviously has now expired, thus 

resulting in the denial of Appellant’s post-sentence motions by operation of 

law, the judgment of sentence has not yet been finalized because an 

appropriate order has not been duly entered upon the docket. The entry of 

an appropriate order is a prerequisite to this Court’s exercise of jurisdiction. 

See Borrero, 692 A.2d at 159-160 (appeal was premature when filed while 

post-sentence motion was still pending in trial court); Pa.R.Crim.P. 

720(B)(3)(c). We thus cannot regard this appeal as having been filed within 

thirty days of the date on which the post-sentence motion was denied. In 

view of these circumstances, we conclude that the instant appeal is from an 

interlocutory judgment of sentence. Because we are precluded from 

exercising jurisdiction over appeals from non-final orders or judgments, we 

are compelled to quash this appeal.6

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5 Because the 120th day, June 16, 2018, fell on a Saturday, the 120-day 

period expired on Monday, June 18, 2018. See 1 Pa.C.S. § 1908 (stating 

that, for computations of time, whenever the last day of any such period shall 

fall on Saturday or Sunday, or a legal holiday, such day shall be omitted from 

the computation.); Commonwealth v. Green, 862 A.2d 613, 618 (Pa. Super. 

2004).

6 Although this Court does have jurisdiction to consider appeals from collateral 

orders or certain classes of interlocutory orders which are appealable as of 

right, see Pa.R.A.P. 311 and 313, the judgment entered in this case is not 

appealable pursuant to either of these rules. Moreover, Appellant has not 
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Furthermore, the fundamental purpose underlying the filing of postsentence motions is to provide the trial court with the first chance to correct 

any errors. In this case, the trial court may have been deprived of this 

opportunity, albeit mistakenly, by virtue of Appellant’s premature appeal. As 

the Court in Borrero explained:

While the reasons underlying the trial court’s failure to act 

on appellant’s post-sentencing motions do not appear of record, 

the trial judge may have been reluctant to proceed based on a 

mistaken assumption that jurisdiction over this matter was 

divested by appellant’s appeal. However, the appeal did not 

divest the trial court of jurisdiction in this instance. As previously 

indicated, the comment to Rule [720] explicitly prohibits the filing 

of an appeal while post-sentencing motions are pending. The 

comment further provides that a judgment of sentence does not 

become final until post-sentencing motions are ruled upon by the 

trial court or are denied by operation of law. Moreover, a trial 

court may proceed further in any matter in which a nonappealable 

order has been entered, notwithstanding the filing of a notice of 

appeal. Consequently, appellant’s improper appeal did not divest 

the trial court of jurisdiction to decide appellant’s post-sentencing 

motion or deny it by operation of law.

Borrero, 692 A.2d at 161 n.4 (internal citations omitted). Thus, we remand 

for purposes of the trial court’s entry of an order addressing Appellant’s postsentence motion.7

 

Appeal quashed as interlocutory. Case remanded for further 

proceedings consistent with this memorandum. Jurisdiction relinquished.

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sought permission to pursue an interlocutory appeal in accordance with 

Pa.R.A.P. 312. Nor is the judgment here appealable under any other rule or 

statute of which we are aware.

7

If the trial court intended to allow the motion to be denied by operation of 

law, the clerk of courts is directed to enter an order reflecting that denial. 

Pa.R.Crim.P. 720(B)(3)(c).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/13/2018