Com. v. Capps, J. ( 2017 )

J-S77023-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JESSICA TAYLOR CAPPS
Appellant No. 722 MDA 2016
Appeal from the Order Entered April 28, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-MD-0000441-2016
BEFORE: PANELLA, OLSON and PLATT,* JJ.
DISSENTING MEMORANDUM BY OLSON, J.: FILED FEBRUARY 24, 2017
Appellant, Jessica Taylor Capps, appeals from the order entered on
April 28, 2016, denying Appellant’s “Motion to Be Removed from ARD [1]
Program.” I believe that the order at issue is not a final order, therefore,
this is an interlocutory appeal that must be quashed. Thus, I respectfully
dissent.
The trial court ably summarized the underlying facts of this appeal. I
quote, in part, from the trial court’s opinion:
On October 31, 2015, the Kutztown University Police . . .
encountered Appellant and suspected her of underage
drinking. On or about November 6, 2015, Appellant was
cited for violating 18 Pa.C.S.A. § 6308(a)[, which prohibits
the purchase or consumption of alcohol by a minor]. On
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1
“ARD” stands for “accelerated rehabilitative disposition.”
*Retired Senior Judge assigned to the Superior Court.
J-S77023-16
November 23, 2015, Appellant [pleaded] not guilty before
[the magisterial district judge]. Her summary trial was set
for January 6, 2016. . . .
[On January 6, 2016, the district judge placed Appellant
into a pre-adjudication disposition program (hereinafter
“pre-adjudication disposition program” or “ARD program”)].
Appellant entered into the [] program and was permitted to
take [an] underage drinking course, on-line, through the 3rd
Millennium course, instead of [in-person] in Berks County,
so she would not have to drive to Berks from Bucks County,
where she resides. On February 16, 2016, Appellant
received a letter from the Pennsylvania Department of
Transportation that her privilege to operate a motor vehicle
was being suspended for 90 days, effective March 22,
2016.[2] . . .
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2
18 Pa.C.S.A. § 6308(c)(2) declares: “[t]he use of a preadjudication
disposition shall be considered a first or subsequent offense, whichever is
applicable, for the purpose of further adjudication under this section or
under section 6310.4 [(relating to “restriction of operating privileges”)].” 18
Pa.C.S.A. § 6308(c)(2). Section 6310.4 specifically declares:
(a) General rule.--Whenever a person is convicted or is
adjudicated delinquent or is admitted to any preadjudication
program for a violation of . . . [18 Pa.C.S.A. §] 6308
(relating to purchase, consumption, possession or
transportation of liquor or malt or brewed beverages) . . .
the court, including a court not of record if it is exercising
jurisdiction pursuant to 42 [Pa.C.S.A.] § 1515(a) (relating
to jurisdiction and venue), shall order the operating
privilege of the person suspended. A copy of the order shall
be transmitted to the Department of Transportation.
(b) Duration of suspension.--When the department
suspends the operating privilege of a person under
subsection (a), the duration of the suspension shall be as
follows:
(1) For a first offense, a period of 90 days from the date
of suspension. . . .
(Footnote Continued Next Page)
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Trial Court Opinion, 6/8/16, at 1.
On March 16, 2016, Appellant filed a “Motion to Be Removed from ARD
Program.” As Appellant alleged, during her hearing before the magisterial
district judge, the district judge “misinformed” Appellant as to the collateral
consequences of her entry into the pre-adjudication disposition program.
Appellant’s “Motion to Be Removed from ARD Program,” 3/16/16, at 4.
Specifically, Appellant averred:
[during the hearing and p]rior to entering the program[,] . .
. [Appellant] informed the magisterial district judge that she
required her driver’s license as she lived in Bucks County
and would be otherwise unable to attend classes [at Temple
University, where she attends college. In response to her
statement,] the magisterial district judge replied “Today is
your lucky day.” [Appellant] reasonably took this response
to mean that her privilege to operate motor vehicles would
not be suspended so she agreed to enter the [pre-
adjudication disposition] program.
Id. at 2 (some internal capitalization omitted).
Appellant claimed that she only entered the pre-adjudication
disposition program because of the magisterial district judge’s assurance
that her motor vehicle operating privileges would not be suspended. Id. at
3-4. Further, Appellant claimed, had she known that her operating
privileges would be suspended upon entry into the pre-adjudication
disposition program, she would not have entered the program and would
have, instead, proceeded to trial. Id. Appellant also claimed that she filed
_______________________
(Footnote Continued)
18 Pa.C.S.A. § 6310.4.
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her “Motion to Be Removed from ARD Program” soon after receiving notice
that her motor vehicle operating privileges were being suspended and that
any delay in filing the motion was the result of a “breakdown in the
operations of [the magisterial district] court.” Id. Appellant requested that
the trial court “grant her motion to be removed from [the pre-adjudication
disposition] program and [remand the matter] to the magisterial district
court for a trial de novo.” Id. at 5.
On March 24, 2016, the trial court issued a rule upon the
Commonwealth to show cause as to why Appellant’s motion should not be
granted. The trial court ordered that the rule was returnable on April 27,
2016. Trial Court Order, 3/24/16, at 1.
On April 27, 2016, the parties appeared before the trial court and the
trial court heard argument on Appellant’s motion. However, the trial court
refused Appellant’s request to testify. N.T. Oral Argument, 4/27/16, at 5-6.
The trial court denied Appellant’s motion on April 28, 2016 and
Appellant filed a timely notice of appeal.
As we have explained, prior to reaching the merits of any appeal, this
Court must “first ascertain whether the [order appealed from] is properly
appealable.” Commonwealth v. Borrero, 692 A.2d 158, 159 (Pa. Super.
1997). Indeed, since “the question of appealability implicates the
jurisdiction of this Court[, the issue] may be raised by [this] Court sua
sponte.” Commonwealth v. Baio, 898 A.2d 1095, 1098 (Pa. Super. 2006).
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In general, this Court’s jurisdiction “extends only to review of final
orders.” Rae v. Pa. Funeral Dir’s Ass’n, 977 A.2d 1121, 1124-1125 (Pa.
2009); 42 Pa.C.S.A. § 742; Pa.R.A.P. 341(a). A final order is defined as any
order that: “(1) disposes of all claims and of all parties; [] (2) is explicitly
defined as a final order by statute; or (3) is entered as a final order pursuant
to [Pennsylvania Rule of Appellate Procedure 341(c)].” Pa.R.A.P. 341(b).
With respect to criminal cases, the general rule “is that a defendant may
appeal only from a final judgment of sentence, and an appeal from any prior
order or judgment will be quashed.” Commonwealth v. Kurilla, 570 A.2d
1073, 1073 (Pa. Super. 1990). The purpose of this rule is to “prevent undue
delay and avoid the disruption of criminal cases by piecemeal appellate
review.” Commonwealth v. Scott, 578 A.2d 933, 941 (Pa. Super. 1990)
(internal quotations, citations, and corrections omitted).
In this case, Appellant was not convicted of any crime and the trial
court did not impose a judgment of sentence. Rather, Appellant was
charged with underage drinking and the magisterial district judge admitted
Appellant to a pre-adjudication disposition program pursuant to 18
Pa.C.S.A. § 6308(c) and 42 Pa.C.S.A. § 1520.
Section 6308(c), which is a subsection entitled “preadjudication
disposition,” declares:
(1) When a person is charged with violating [18 Pa.C.S.A.
§ 6308(a) (relating to underage drinking)], the magisterial
district judge may admit the offender to the adjudication
alternative as authorized in 42 Pa.C.S.A. § 1520 (relating to
adjudication alternative program) or any other
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preadjudication disposition if the offender has not previously
received a preadjudication disposition for violating [Section
6308(a)].
(2) The use of a preadjudication disposition shall be
considered a first or subsequent offense, whichever is
applicable, for the purpose of further adjudication under this
section or under section 6310.4 [(relating to “restriction of
operating privileges”)].
18 Pa.C.S.A. § 6308(c).
Section 1520 of the Judicial Code, entitled “adjudication alternative
program,” declares in relevant part:
(a) General rule.-- . . . the magisterial district judge may,
upon hearing the facts of a case, admit to an appropriate
adjudication alternative authorized by this section persons
charged with summary offenses. The defendant shall not
be required to plead guilty to be accepted by the magisterial
district judge into the program. Acceptance of participation
in an alternative authorized by this section shall be
considered a first conviction for the purpose of computing
whether a subsequent conviction of an offense shall be
considered a second or subsequent conviction.
(b) Public service programs and other adjudication
alternatives.--A magisterial district judge may, in lieu of
making a disposition, place an offender in an appropriate
program in which a public service or charitable agency or
organization or political subdivision agrees to assume
supervisory responsibility for the offender. The program in
general shall be approved by the court of common pleas
having supervision over that magisterial district. This
program may include work, counseling, public service, job
training, education or other appropriate community service
or self-improvement. The placement authorized by the
magisterial district judge shall be appropriate to the offense
charged and in the best interests of the community and the
offender. . . .
(c) Completion of program.--The magisterial district
judge shall provide written notice to the public service or
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charitable agency or organization or political subdivision of
the placement of the offender. Upon notification, the public
service or charitable agency or organization or political
subdivision shall, as a condition to agreeing to accept
responsibility for supervision of the offender, make periodic
reports on the fulfillment of the conditions and a final report
upon the completion of the appropriate adjudication
alternative as required by the supervising magisterial
district judge. The magisterial district judge shall dismiss
the charges and shall relieve the offender of the obligation
to pay any fine or serve any sentence of imprisonment upon
the successful completion of the program.
(d) Refusal to accept or complete program.--If the
offender refuses to accept the conditions required by the
magisterial district judge or fails to complete the program
without good cause or violates any condition of the program
without good cause, the magisterial district judge shall
proceed on the charges as provided by law.
42 Pa.C.S.A. § 1520.
Therefore, in accordance with Section 1520: Appellant was not
required to (and Appellant did not) plead guilty in order to be “accepted by
the magisterial district judge into the program;” the magisterial district
judge placed Appellant in the pre-adjudication disposition program “in lieu of
making a disposition;” if Appellant chooses to complete the program, “[t]he
magisterial district judge shall dismiss the charges” against Appellant; and, if
Appellant either “refuses to accept the conditions required by the magisterial
district judge or fails to complete the program,” “the magisterial district
judge shall proceed on the charges as provided by law.” 42 Pa.C.S.A.
§ 1520.
Given the unique nature of an order that accepts a defendant into a
pre-adjudication disposition program, this Court has held that “[a]cceptance
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of ARD is an interlocutory matter and consequently is not appealable.”
Commonwealth v. Getz, 598 A.2d 1309, 1309 (Pa. Super. 1991). As we
explained:
The general rule in Pennsylvania is that a defendant may
appeal only from a final judgment of sentence and an
appeal from any prior order will be quashed as
interlocutory. An ARD determination provides no exception
to the general rule. Rather, it constitutes a non-final
proceeding in which the resolution of the criminal
prosecution is merely held in abeyance. Acceptance of ARD
is an interlocutory matter and consequently is not
appealable. . . .
[P]roceeding under the ARD program is not a right. [An
a]ppellant’s remedy, if [she] is dissatisfied with the
terms and conditions of the ARD program, is to notify
the trial court and the [district attorney] regarding
[her] non-acceptance. . . . [T]he trial court may then
enter a non-appealable interlocutory order
terminating [the] appellant’s participation in the
program. [The a]ppellant's case would then proceed
to the trial which has been postponed during the term
of [the] appellant's participation in the ARD program.
Id. at 1309 (internal citations omitted) (emphasis added); see also
Commonwealth v. Feagley, 538 A.2d 895 (Pa. Super. 1988) (quashing
appeal from an order that accepted the appellant into an ARD program,
where the appellant wished to challenge the “statutorily mandated license
suspension of [12] months,” because an order accepting an individual into
an ARD program is interlocutory) (superseded by rule on other grounds by
Commonwealth v. Coleman, 854 A.2d 978 (Pa. Super. 2004)); see also
Commonwealth v. Wrona, 83 A.3d 1057 (Pa. Super. 2013) (unpublished
memorandum) at 1-5 (quashing appeal from the trial court’s order that
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denied the appellant’s “motion to withdraw from the court’s [ARD] program”
because the order is interlocutory and unappealable).
In accordance the above precedent, I must conclude that the trial
court’s order denying Appellant’s “Motion to Be Removed from ARD
Program” is not a final order, as “[a]cceptance of ARD is an interlocutory
matter.” Getz, 598 A.2d at 1309. Therefore, Appellant is appealing an
interlocutory determination of the trial court.
Further, while interlocutory orders are appealable in certain
circumstances, none of those circumstances apply to the case at bar. Our
Supreme Court has explained:
in addition to an appeal from final orders of the Court of
Common Pleas, our rules provide the Superior Court with
jurisdiction in the following situations: interlocutory appeals
that may be taken as of right, Pa.R.A.P. 311; interlocutory
appeals that may be taken by permission, Pa.R.A.P. [312];
appeals that may be taken from a collateral order, Pa.R.A.P.
313; and appeals that may be taken from certain
distribution orders by the Orphans’ Court Division, Pa.R.A.P.
342.
Commonwealth v. Garcia, 43 A.3d 470, 478 n.7 (Pa. 2012) (internal
quotations omitted), quoting McCutcheon v. Phila. Elec. Co., 788 A.2d
345, 349 n.6 (Pa. 2002).
Here, the challenged order is not defined as appealable as of right (per
Pa.R.A.P. 311), Appellant did not ask for or receive permission to appeal the
interlocutory order (per Pa.R.A.P. 312), and Appellant has not provided this
Court with any argument as to whether – or how – the order could satisfy
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the collateral order doctrine (per Pa.R.A.P. 313). Thus, since we do not have
jurisdiction, I would quash Appellant’s appeal.3 See 42 Pa.C.S.A. § 742.
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3
Throughout the learned Majority’s memorandum, the Majority refers to
Appellant’s “conviction” – and the Majority thus utilizes the standard,
procedure, and requirements for “[a] party seeking leave to appeal from a
summary conviction nunc pro tunc.” See Majority Memorandum at 3,
quoting Commonwealth v. Yohe, 641 A.2d 1210, 1211-1212 (Pa. Super.
1994); see also Majority Memorandum at 1-5. Respectfully, this is where I
believe that the Majority errs. To be sure, Appellant was not convicted
of anything. Instead, as was explained above, Appellant was charged with
underage drinking and the magisterial district judge admitted Appellant to
a pre-adjudication disposition program pursuant to 18 Pa.C.S.A.
§ 6308(c) and 42 Pa.C.S.A. § 1520.
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