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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 post-
sentence 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 post-
sentence 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] post-
sentence 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 17 th
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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 post-
sentence 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 post-
sentence 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 post-
sentence 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
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