J-S37006-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JERMAINE HENDERSON,

Appellant No. 2432 EDA 2013

Appeal from the Judgment of Sentence June 18, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0012686-2011, 

CP-51-CR-0012688-2011

BEFORE: GANTMAN, P.J., SHOGAN, and LAZARUS, JJ.

DISSENTING MEMORANDUM BY SHOGAN, J.: FILED JULY 24, 2015

Although procedural irregularities attend his case, I do not believe 

Appellant’s appeal was untimely. Accordingly, I would consider the merits of 

this appeal.

“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). “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.” Green, 

862 A.2d at 618. Pursuant to Pa.R.Crim.P. 720(A)(1), a post-sentence 
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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. 

The trial court sentenced Appellant on June 18, 2013. Appellant did 

not raise any challenges at sentencing. N.T., 6/18/13, at 51–60. After 

sentence was imposed, Appellant was informed of his post-sentence rights 

and appellate rights. N.T., 6/18/13, at 59–60. Appellant had until June 28, 

2013, to file a timely post-sentence motion and until July 18, 2013, to file an 

appeal. Pa.R.Crim.P. 720(A)(1); Pa.R.A.P. 903(a).

On July 8, 2013, twenty days after entry of the judgment of sentence, 

Appellant filed a petition for leave to file a post-sentence motion out of time. 

In his petition, Appellant asserted that counsel was filing a post-sentence 

motion concurrently with the petition. Petition, 7/8/13, at ¶ 4. However, 

the certified record does not contain a post-sentence motion, a fact noted by 

the Majority. Majority Memorandum at n.2. Nonetheless, on July 17, 2013, 

which was still within the thirty-day appeal period, the trial court stated that 

it considered a post-sentence motion and entered an order denying relief. 

See ORDER-Post Sentence Motion, 7/17/13. Appellant filed a timely appeal 

on July 18, 2013. 

Although the trial court did not expressly issue an order permitting the 

filing of a post-sentence motion nunc pro tunc, it did state that it considered 

a motion and then denied relief within the original thirty-day appeal period. 
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In my opinion, the trial court’s action of denying relief within the original 

thirty-day period distinguishes this case from Commonwealth v. Capaldi, 

112 A.3d 1242 (Pa. Super. 2015), wherein the hearing and subsequent 

denial of the post-sentence motion occurred after the thirty-day appeal 

period. Accordingly, I would consider the merits of this appeal.