Com. v. Aly, I. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
IBRAHIM ALY
Appellant No. 1505 EDA 2015
Appeal from the Judgment of Sentence April 21, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006077-2013
BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J.
JUDGMENT ORDER BY PANELLA, J. FILED APRIL 06, 2017
Appellant, Ibrahim Aly, appeals from the judgment of sentence
entered by the Honorable Diana Anhalt of the Philadelphia Court of Common
Pleas following a probation violation hearing. We quash.
The relevant factual and procedural history is as follows. On
September 12, 2013, Appellant was convicted of theft1 and receiving stolen
property.2 Following his conviction, the trial court sentenced Appellant to a
period of time served to twenty-three months’ incarceration, with a
concurrent two year probationary period. Appellant was immediately
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
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. § 3921(a).
2
18 Pa.C.S.A. § 3925(a).
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paroled, and as a condition of his probation, was required to comply with
mental health treatment and drug testing.
After refusing to comply with mental health treatment and testing
positive for marijuana, Appellant absconded from supervision on October 12,
2014. On January 28, 2015, Appellant was notified of alleged violations of
the conditions of his probation and an absconder warrant was subsequently
issued for his arrest. Appellant was eventually arrested on March 20, 2015.
The trial court held a probation violation hearing on April 21, 2015.
Appellant was found guilty of violating the conditions of his probation, and
the trial court sentenced Appellant to serve his back time, granted him
immediate parole and re-imposed a concurrent two-year probationary
period.
Thereafter, Appellant filed a timely pro se post-sentence motion
contesting the judgment of sentence. This appeal follows. However, because
we find that the order Appellant purports to appeal from was not a final
order, we cannot address Appellant’s appeal on the merits.
“As a preliminary matter, we must first ascertain whether the
judgment of sentence is properly appealable, because the question of
appealabilty implicates the jurisdiction of this court.” Commonwealth v.
Borrero, 692 A.2d 158, 159 (Pa. Super. 1997). Further, despite the fact
that neither party addressed the issue of jurisdiction, we may raise the
question of jurisdiction sua sponte. See Roman v. McGuire Mem’l, 127
A.3d 26, 31 (Pa. Super. 2015), appeal denied, 134 A.3d 57 (Pa. 2016).
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The Judicial Code provides that the Superior Court shall have
exclusive appellate jurisdiction of all appeals from final orders of
the courts of common pleas, except such classes of appeals as
are within the exclusive jurisdiction of the Supreme Court or the
Commonwealth Court. 42 Pa.C.S.A. § 742. In the context of
criminal proceedings where, as here, the case has proceeded
through the sentencing phase, the appeal lies from the entry of
the final judgment of sentence. Commonwealth v. Alvarado,
437 Pa. Super. 518, 520, 650 A.2d 475, 476 (1994). Pursuant to
the Pennsylvania Rules of Criminal Procedure, the question of
whether the judgment of sentence is final and appealable
depends upon whether a defendant files the now optional post-
sentencing motions.
When post-sentencing motions are not filed, the judgment
of sentence constitutes a final and appealable order for the
purposes of appellate review and any appeal therefrom must be
filed within thirty (30) days of the imposition of sentence.
Pa.R.Crim.P., Rule 1410A(3),[3] 42 Pa.C.S.A. and comments
thereto; Commonwealth v. Alvarado, 437 Pa. Super. at 520,
650 A.2d at 476-477. If post-sentencing motions are timely
filed, however, the judgment of sentence does not become final
for purposes of appeal until the trial court disposes of the
motion, or the motion is denied by operation of law. Id., at Rule
1410A(2) and comments thereto; Commonwealth v.
Chamberlain, 442 Pa. Super. 12, 16, 658 A.2d 395, 397,
appeal quashed, 543 Pa. 6, 669 A.2d 877(1995). Moreover, the
comments to Rule 1410 explicitly provide that “no direct appeal
may be taken by a defendant while his or her post-sentence
motion is pending.” Comments to Pa.R.Crim.P. Rule 1410, 42
Pa.C.S.A.
Borrero, 692 A.2d at 159-160.
Here, the certified record reflects that Appellant was sentenced on
April 21, 2015. He filed a post-sentence motion on April 30, 2015 and then a
notice of appeal on May 21, 2015, prior to the trial court issuing an order
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3
Rule 1410 was renumbered Rule 720, effective March 1, 2000.
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disposing of the post-sentence motion or the denial of the order by operation
of law. See Pa.R.Crim.P. 720(3). If an appropriate order denying the post-
sentence motion had been noted on the docket, we could have regarded this
appeal as having been filed within thirty days of the day on which the post-
sentencing motions should have been denied by operation of law. Cf.
Pa.R.A.P. 905(a). However, because an appropriate order has not been
entered on the docket denying the post-sentencing motion as an operation
of law, the judgment of sentence has not yet been finalized. See Borreo,
692 A.2d at 159-160.
Thus, we are without jurisdiction to entertain this appeal. See 42
Pa.C.S.A. § 742.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2017
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