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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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, J., and LAZARUS, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JULY 24, 2015

Appellant, Jermaine Henderson, appeals from the judgment of 

sentence entered in the Philadelphia County Court of Common Pleas, 

following his jury trial convictions for two (2) counts of robbery and one (1) 

count each of first degree murder, criminal attempt, aggravated assault, and 

carrying firearms on public streets in Philadelphia.1 We dismiss the appeal 

as untimely filed. 

The relevant facts and procedural history of this appeal are as follows. 

On December 19, 2010, Appellant shot Mr. Isaacs and Mr. Brant during a 

gunpoint robbery. Mr. Brant died as a result of the shooting, and Mr. Isaacs 

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1 18 Pa.C.S.A. §§ 3701, 2502(a), 901, 2702, 6108, respectively. 
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suffered serious bodily injuries. The Commonwealth charged Appellant with 

offenses related to each victim at separate docket numbers. Following trial, 

a jury convicted Appellant of two counts of robbery and one count each of 

first degree murder, attempted murder, aggravated assault, and carrying 

firearms on public streets in Philadelphia. On June 18, 2013, the court 

sentenced Appellant to life imprisonment for the murder conviction. The 

court imposed an aggregate, consecutive term of twenty (20) to forty (40) 

years’ imprisonment for the remaining convictions. Following the imposition 

of sentence, trial counsel informed Appellant of his right to file a postsentence motion within ten days or a notice of appeal within thirty days. 

On July 8, 2013, Appellant filed a “petition for leave to file motion out 

of time.” In it, Appellant claimed he requested that trial counsel file postsentence motions, but counsel failed to do so. Appellant asked the court to 

“grant this petition for leave to file out of time and accept [Appellant’s] postsentence motions as timely filed.”2

 (Petition for Leave to File Motion Out of 

Time, filed 7/8/13, at 2). The court conducted a hearing on July 17, 2013.3 

That same day, the court entered the following order: “AND NOW, this 17th

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2 Appellant also asserted, “[C]ounsel is filing the post-sentence motions 

concurrently along with this petition....” (See Petition for Leave to File 

Motion Out of Time at 1.) We note the certified record does not include 

separate post-sentence motions, and the docket entries do not memorialize 

such a filing. 

3 The certified record does not include a transcript for the July 17, 2013 

hearing. 
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day of July, 2013, after consideration of the Post-Sentence Motion by 

[Appellant] it is ORDERED that the Post-Sentence Motion is DENIED.” 

(Order, entered 7/17/13, at 1). 

Appellant filed a notice of appeal on August 16, 2013. On October 17, 

2013, the court ordered Appellant to file a concise statement of errors 

complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant timely 

filed a Rule 1925(b) statement on November 7, 2013. 

On April 25, 2014, Appellant filed a request to proceed pro se. This 

Court remanded the matter on May 22, 2014.4 On June 30, 2014, the trial 

court conducted a hearing, pursuant to Commonwealth v. Grazier, 552 

Pa. 9, 713 A.2d 81 (1998). Immediately after the hearing, the court 

determined Appellant’s waiver of counsel was knowing, voluntary, and 

intelligent, and it permitted trial counsel to withdraw. 

As a prefatory matter, we observe the time limitations for taking 

appeals are strictly construed and cannot be extended as a matter of grace. 

Commonwealth v. Valentine, 928 A.2d 346, 349 (Pa.Super. 2007). This 

Court can raise the matter sua sponte, as the issue is one of jurisdiction to 

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4 On May 29, 2014, this Court issued a rule to show cause order, directing 

Appellant to explain why his appeal should not be deemed untimely. 

Appellant filed a response on June 11, 2014. In it, Appellant claimed the 

trial court expressly granted the petition for leave to file post-sentence 

motions out of time, the court denied the post-sentence motions nunc pro 

tunc on July 17, 2013, and Appellant timely filed a notice of appeal on 

August 16, 2013. On October 21, 2014, this Court issued a per curiam order 

referring the timeliness issue to this merits panel. 
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entertain the appeal. Id. As a general rule, this Court has no jurisdiction to 

entertain an untimely appeal. Commonwealth v. Patterson, 940 A.2d 

493, 497 (Pa.Super. 2007), appeal denied, 599 Pa. 691, 960 A.2d 838 

(2008). “Nonetheless, this general rule does not affect the power of the 

courts to grant relief in the case of fraud or breakdown in the processes of 

the court.” Id. at 498. 

“[T]he notice of appeal...shall be filed within 30 days after the entry of 

the order from which the appeal is taken.” Pa.R.A.P. 903(a). “A direct 

appeal in a criminal proceeding lies from the judgment of sentence.” 

Patterson, supra at 497 (quoting Commonwealth v. Preacher, 827 A.2d 

1235, 1236 n.1. (Pa.Super. 2003)). If a defendant files a timely postsentence motion, the notice of appeal shall be filed within 30 days of the 

entry of the order deciding the motion. Pa.R.Crim.P. 720(A)(2)(a). To be 

timely, a post-sentence motion must be filed no later than 10 days after 

imposition of sentence. Pa.R.Crim.P. 720(A)(1). Absent a timely postsentence motion, the notice of appeal shall be filed within 30 days of 

imposition of sentence. Pa.R.Crim.P. 720(A)(3); Commonwealth v. 

Dreves, 839 A.2d 1122, 1127 (Pa.Super. 2003) (en banc). 

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

but only if two conditions are met.” Commonwealth v. Capaldi, 112 A.3d 

1242, 1244 (Pa.Super. 2015) (citing Dreves, supra at 1128). 

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

must request the trial court to consider a post-sentence 
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motion nunc pro tunc. The request for nunc pro tunc relief 

is separate and distinct from the merits of the underlying 

post-sentence 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, [t]he 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. 

Capaldi, supra at 1244 (internal citations and quotation marks omitted) 

(emphasis in original). 

Instantly, the court imposed sentence on June 18, 2013. At the 

conclusion of the proceedings, trial counsel instructed Appellant regarding 

his rights and the time limitations for filing post-sentence motions and a 

direct appeal. Therefore, Appellant’s post-sentence motions were due on or 

before June 28, 2013. Appellant did not file post-sentence motions on or 

before June 28, 2013. Thus, Appellant’s notice of appeal was due within 

thirty days of his sentencing, on or before July 18, 2013. See Dreves, 

supra. 

On July 8, 2013, Appellant filed a “petition for leave to file motion out 

of time.” Appellant’s filing, however, did not satisfy the prerequisites for 

nunc pro tunc relief. See Capaldi, supra. Significantly, the trial court did 

not expressly grant the filing of post-sentence motions nunc pro tunc. 

Although the certified record includes an order denying Appellant’s postsentence motions on the merits, that order is no substitute for an order 
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expressly granting nunc pro tunc relief. See id. at 1245 (stating: “With 

respect to the necessity of a timely order expressly granting reconsideration, 

the establishment of a briefing schedule, hearing date, or issuance of a rule 

to show cause does not suffice”); Dreves, supra at 1128-29 (explaining if 

trial court does not expressly grant nunc pro tunc relief, time for filing 

appeal is neither tolled nor extended; court’s resolution of merits of untimely 

post-sentence motion is no substitute for order expressly granting nunc pro 

tunc relief). Under the circumstances of this case, Appellant’s “petition for 

leave to file motion out of time” did not toll the appeal period, and we must 

deem Appellant’s appeal from the judgment of sentence untimely filed. 

Accordingly, we dismiss this appeal as untimely. 

Appeal dismissed. 

Judge Lazarus joins this memorandum.

Judge Shogan files a dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/24/2015