I respectfully dissent. The instant appeal is properly before this court, and I would decide it on its merits.
The appeal has been filed from an order modifying a sentence entered in a criminal case. Appellate jurisdiction in such cases has been vested in the Superior Court. See: Commonwealth v. Bender, 251 Pa.Super. 454, 380 A.2d 868 (1977); Goldsborough v. Burk, 4 Pa.Commonwealth Ct. 513, 288 A.2d 555 (1972); 42 Pa.C.S. §§ 742, 762. Cf. Commonwealth v. Sensi, 287 Pa.Super. 452, 430 A.2d 691 (1981).
Moreover, even if there were a jurisdictional defect, neither party has raised the issue; and, therefore, our right to decide the merits of the appeal is clear. See: 42 Pa.C.S. § 704; Pa.R.App.P. 741. See also: Commonwealth v. Guinther, 290 Pa.Super. 441, 443 n.2, 434 A.2d 834, 835 n.2 (1981); Schrecengost v. Armstrong School District, 289 Pa.Super. 292, 295 n.1, 433 A.2d 72, 73 n.1 (1981); Jost v. Phoenixville Area School District, 267 Pa.Super. 461, 465-466 n.1, 406 A.2d 1133, 1135 n.1 (1979).
Whether a trial judge, in the form of an order modifying a criminal sentence and placing a prisoner on probation (or parole), can direct the Commonwealth to pay for rehabilitative therapy for such prisoner is a difficult and complex issue which has been extensively briefed and argued by the parties. I would not send them away without a decision.