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2009 Pa. Super. 134

978 A.2d 988

Commonwealth v. Moore

Superior Court of Pennsylvania

Decided July 15, 2009

Superior Court of Pennsylvania · decided 2009-07-15

Cited by 3 later decisions — most recently November 2025

3 state decisions

Relies on Commonwealth v. Klinghoffer · City of Hazleton v. City Council · Kurtas v. Kurtas

Good law ✅— No negative treatment on recordhow we know

Decided 2009-07-15

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¶1CONCURRING AND DISSENTING OPINION BY

BOWES, J.:

¶2¶ 1 In the present case, the trial court held that it did not have the authority to grant Appellant permission to file his untimely post-sentence motion mmc pro tunc. This conclusion was incorrect as our Supreme Court has indicated that it is within the authority of a trial court to overlook the untimely filing of a post-trial motion and address the motion on the merits. If the trial court chooses to do so, any issues raised in the untimely motion *994will be considered preserved for purposes of appeal. In Commonwealth v. Metz, 534 Pa. 341, 633 A.2d 125, 127 (1993), the Court summarized this exercise of judicial discretion:

It is well-established that issues not raised in posttrial motions are not preserved for appellate review....
We recognize that exceptions to this rule have been made in certain limited circumstances — specifically, where the appellant raises the issue post-trial in a procedurally defective manner and the trial court chooses to overlook the defect and address the issue on its merits. See, e.g., Commonwealth v. Sheaff, 518 Pa. 655, 544 A.2d 1342 (1988) (per curiam) (Superior Court erred in considering issue waived where it was presented in supplemental post-trial motions filed without leave and trial court nevertheless addressed issue on merits), reversing 365 Pa.Super. 613, 530 A.2d 480 (1987); Kurtas v. Kurtas, 521 Pa. 105, 555 A.2d 804, 806 (1989) (Superior Court erred in refusing to review merits of appeal where trial court chose to ignore untimely filing of post-trial motions and addressed merits of alleged errors); Commonwealth v. Hewett, 380 Pa.Super. 334, 551 A.2d 1080 (1988), allocatur denied, 522 Pa. 583, 559 A.2d 526 (1989); Commonwealth v. Sopota, 403 Pa.Super. 1, 587 A.2d 805, allocatur denied, 528 Pa. 629, 598 A.2d 283 (1991)....

¶3See also Commonwealth v. Dreves, 839 A.2d 1122 (Pa.Super.2003) (en banc) (if party requests permission to file post-sentence motion nunc pro time, trial court may exercise its discretion and permit such filing).

¶4¶ 2 In the present case, pursuant to this Court’s decision in Commonwealth v. Liston, 941 A.2d 1279 (Pa.Super.2008) (en banc), the Majority removes that discretion from the trial court, grants Appellant permission to file his post-sentence motion nunc pro tunc, and remands for an eviden-tiary hearing regarding Appellant’s claims of ineffective assistance of counsel. As the Majority notes, our Supreme Court has granted allowance of appeal in Liston, and its order in that regard signaled a potential disapproval of Liston:

a. Did the Superior Court contradict Commonwealth v. Grant in purporting to create its own new exception to that case?
b. Did the Superior Court contradict Commonwealth v. Reaves by holding that any PCRA petitioner entitled to a nunc pro tunc direct appeal is automatically entitled to nunc pro tunc post sentence motions as well, without proving prejudice?
c. Did the Superior Court usurp this Court’s exclusive authority to create procedural rules under Article V, § 10(c) of the state constitution?

¶5Commonwealth v. Liston, 598 Pa. 638, 959 A.2d 1248, 1248 (2008).

¶6¶ 3 Since the trial court was in error that it lacked the authority to permit the untimely filing of post-sentence motions nunc pro tunc, I believe the better course would be to vacate the order and remand to the trial court so that it may exercise its discretion in this matter. Such action is clearly authorized under pertinent Supreme Court precedent.

¶7¶ 4 In view of our Supreme Court’s grant of review in Liston as well as the language of its order, this course of action is more prudent than following the dictates of that decision. The Majority’s decision herein may well be seen as another effort by this Court to carve out its own exception to Commonwealth v. Grant, 573 Pa. 141, 821 A.2d 1246 (2003), which is a practice that our Supreme Court has specifically condemned. Commonwealth v. O’Berg, 584 Pa. 11, 880 A.2d 597 (2005). Hence, I *995concur in the Majority’s conclusion that this matter should be remanded to the trial court. However, our remand should expressly permit the trial court to decide whether to grant Appellant permission to file post-sentence motions nunc pro time. From the portion of the Majority Opinion that does not defer to the trial courts’ discretion in this regard, I respectfully dissent.

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