J-S64039-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSHUA J. STOKES
Appellant No. 33 EDA 2016
Appeal from the Judgment of Sentence December 11, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000720-2011
BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 07, 2016
Appellant appeals from the judgment of sentence entered in the Court
of Common Pleas of Philadelphia County following his conviction by a jury on
the crimes of first-degree murder and possession of an instrument of crime.1
After a careful review, we quash this appeal and remand for further
proceedings.
Appellant, who was represented by court-appointed counsel,
proceeded to a jury trial on various charges, including homicide, in
connection with the stabbing death of the victim. On December 11, 2015,
the jury convicted Appellant of the offenses indicated supra, and on that
same day, the trial court sentenced Appellant to life in prison.
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1
18 Pa.C.S.A. §§ 2502(a) and 907(a), respectively.
*Former Justice specially assigned to the Superior Court.
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On or about December 17, 2015, Appellant filed a timely pro se post-
sentence motion,2 see Pa.R.Crim.P. 720(A)(1) (indicating a post-sentence
motion must be filed within ten days of the judgment of sentence), and on
December 28, 2015, newly court-appointed counsel filed a notice of appeal.3
As a general rule, this Court has jurisdiction only over final orders.
Commonwealth v. Rojas, 874 A.2d 638 (Pa.Super. 2005). In criminal
cases, a direct appeal lies from the judgment of sentence. Commonwealth
v. Patterson, 940 A.2d 493, 497 (Pa.Super. 2007). Generally, where a
defendant timely files a post-sentence motion, the court shall decide the
motion within 120 days of the filing; otherwise, the motion shall be deemed
denied by operation of law. See Pa.R.Crim.P. 720(B)(3)(a). When an
appellant files a notice of appeal before the court has ruled on his post-
sentence motion, the judgment of sentence has not become “final,” and any
purported appeal will be interlocutory and unreviewable. Commonwealth
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2
There is no indication that Appellant served his pro se post-sentence
motion upon his court-appointed attorney. Moreover, there is no indication
that the clerk of courts complied with Pa.R.Crim.P. 576(A)(4), which requires
a copy of a pro se filing, made by a counseled defendant, to be forwarded to
the counsel of record.
3
On or about December 28, 2015, Appellant filed a separate pro se
document, which purported to be a notice of appeal; however, the clerk of
courts did not identify the filing as a pro se notice of appeal. Rather, the
clerk of courts listed Appellant’s pro se appeal on the certified docket sheet
as a “Receipt of Filing from Represented Defendant Not signed by
Attorney[.]” In any event, to the extent Appellant’s pro se document
constitutes a pro se notice of appeal, for the reasons discussed infra, it is
premature.
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v. Borrero, 692 A.2d 158, 160 (Pa.Super. 1997). In those circumstances,
the proper remedy is to quash the appeal, relinquish jurisdiction, and
remand for the trial court to consider the post-sentence motion nunc pro
tunc.4 Id. at 161.
Instantly, Appellant’s notice of appeal was filed well before the
expiration of the 120-day period and while Appellant’s timely post-sentence
motion was still pending. Further, the trial court has not issued an order
disposing of the post-sentence motion nor has the clerk of courts entered an
order denying the post-sentence motion by operation of law. Thus, absent
an order disposing of the post-sentence motion, or any indication the post-
sentence motion has been withdrawn, we conclude the instant notice of
appeal is premature. Id. (explaining that the judgment of sentence does not
become final until the entry of an order disposing of timely post-sentence
motions, even if the 120–day period for deciding post-sentence motions has
expired). Accordingly, we quash this appeal and remand for the trial court
to forward the pro se post-sentence motion to counsel, allow counsel the
opportunity to amend the post-sentence motion, and rule on the post-
sentence motion.
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4
In such circumstances, the post-sentence motion is deemed filed nunc pro
tunc on the date on which the certified record is remanded to the trial court,
and thus, the 120-day period for disposing of the post-sentence motion
begins to run anew as of that date.
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Appeal Quashed; Case remanded for further proceedings; Jurisdiction
is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/7/2016
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