Com. v. Flaherty, T. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TIMOTHY FLAHERTY
Appellant No. 2888 EDA 2013
Appeal from the Order Entered September 26, 2013
In the Court of Common Pleas of Pike County
Criminal Division at No(s): CP-52-CR-0000320-2012
CP-52-CR-0000321-2012
BEFORE: GANTMAN, P.J., JENKINS, J., and FITZGERALD, J.**
MEMORANDUM BY JENKINS, J.: FILED SEPTEMBER 10, 2014
The Commonwealth of Pennsylvania appeals the September 26, 2013
order of the Court of Common Pleas of Pike County granting Timothy
Flaherty an extension of his previously granted furlough from the county
-traumatic stress syndrome
On February 28, 2013, the trial court sentenced Flaherty to a term of
incarceration in the Pike County Correctional Facility of not less than one
year plus ninety days but not more than five years. The sentencing order
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**
Former Justice specially assigned to the Superior Court.
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Furlough seeking leave to receive inpatient treatment at a Residential
specializes in PTSD in Montrose, New York.
Furlough for a forty-five day treatment program at the aforementioned
facility. On March 14, 2013, the Commonwealth filed a Petition for Rescission
arrest in Dauphin County. The trial cou
Petition for Rescission and entered an order rescinding the previous furlough
order. On March 19, 2013, Flaherty filed a second Petition for Furlough in
which he averred the bench warrant had been issued in error and had been
rescinded.1 On March 20, 2013, following a hearing, the trial court granted
terms of the March 11, 2013 furlough order.
After Flaherty successfully completed DRP, he petitioned the trial court
for a furlough extension to remain at the in-patient PTSD facility and
continue receiving PTSD treatment. On May 2, 2013, following a hearing, the
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1
In his petition, Flaherty included a March 13, 2013 order from Dauphin
County rescinding the bench warrant.
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Commonwealth timely ap
furlough petition and first extension.
Pennsylvania Rule of Appellate Procedure 1701 explains the effect of
pending matter:
Rule 1701. Effect of Appeal Generally
(a) General rule. Except as otherwise prescribed by
these rules, after an appeal is taken or review of a
quasijudicial order is sought, the trial court or other
government unit may no longer proceed further in
the matter.
(b) Authority of a trial court or agency after
appeal. After an appeal is taken or review of a
quasijudicial order is sought, the trial court or other
government unit may:
(1) Take such action as may be necessary to
preserve the status quo, correct formal errors in
papers relating to the matter, cause the record to be
transcribed, approved, filed and transmitted, grant
leave to appeal in forma pauperis, grant
supersedeas, and take other action permitted or
required by these rules or otherwise ancillary to the
appeal or petition for review proceeding.
***
Pa.R.A.P. 1701 (emphasis added).
original Petition for Furlough and first extension was pending, Flaherty filed a
Petition for Continued Furlough. On September 26, 2013, following a
hearing, the trial court granted the petition, finding that Flaherty made
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significant improvements2 during the furlough. The trial court ordered
Flaherty to continue to reside in the treatment facility twenty-four hours a
day and to begin a new treatment program called Common Ground at the
facility, which would focus on issues such as substance abuse and PTSD.
Trial Court Opinion, at 3. The Commonwealth appealed the grant of the
extension,
to be released from serving his incarceration sentence [to] a new program
[Common Ground] after completion of a prior program [DRP] and expired
On March 31, 2014, this Court addressed the prior appeals3 and found
the initial furlough and its extension improper. We held in Commonwealth
v. Flaherty, 89 A.3d 286 (Pa.Super.2014) that the trial court did not have
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2
The significant improvements included negative results from multiple drug
urine tests, attendance at groups and meetings as scheduled, participation
in substance abuse groups, and completion of monthly community service.
See Trial Court Opinion, at 3; August 23, 2013 Letter from Jay Pomales,
Ph.D, Department of Veterans Affairs, at 1.
3
docket numbers 1034 EDA 2013 and 1440 EDA 2013.
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leave from a county jail. Id. at 289 (citing 42 Pa.C.S. § 9813).
Accordingly, regardless of our interpretation of Pa.R.A.P. 1701, our
prior holding mandates that any orders extending the improvidently granted
initial furlough be vacated. As logic dictates and Appellee concedes,4 because
the trial court did not have jurisdiction to enter the initial furlough and the
first extension, the trial court could not have jurisdiction to continue
Order reversed. Jurisdiction relinquished.
President Judge Gantman joins the memorandum.
Justice Fitzgerald files concurring statement in which Judge Jenkins
joins.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/10/2014
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4
See not initially
possess jurisdiction to grant furlough to Mr. Flaherty, it can only logically be
concluded that the [t]rial [c]ourt did not possess jurisdiction to continue
furlough, regardless of the circumstances, under Pa.R.A.P. 1701.
Accordingly, Mr. Flaherty is constrained to concede that the [t]rial [c]ourt
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