Com. v. Gotshall, A. ( 2021 )

J-S47022-20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
AMANDA LYNN GOTSHALL, :
:
Appellant : No. 2109 MDA 2019
Appeal from the Order Entered November 27, 2019
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0002240-2019
BEFORE: STABILE, J., NICHOLS, J. and STRASSBURGER, J.*
DISSENTING MEMORANDUM BY STRASSBURGER, J.:
FILED: FEBRUARY 22, 2021
Because I disagree that the order appealed from is not a final order, I
respectfully dissent.
“In order to be appealable, the order must be: (1) a final order,
Pa.R.A.P. 341-42; (2) an interlocutory order appealable by right or
permission, 42 Pa.C.S. § 702(a)-(b); Pa.R.A.P. 311-12; or (3) a collateral
order, Pa.R.A.P. 313.” Interest of J.M., 219 A.3d 645, 650 (Pa. Super.
2019) (footnote omitted). Generally,
[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
*Retired Senior Judge assigned to the Superior Court.
J-S47022-20
quashed.” Commonwealth v. Kurilla, 570 A.2d 1073, 1073
(Pa. Super. 1990).
Commonwealth v. Horn, 172 A.3d 1133, 1136 (Pa. Super. 2017)
(citations altered).
“Pennsylvania’s Rules of Appellate Procedure place great
importance on the concept of ‘final orders’ to establish
jurisdiction to hear an appeal.” Commonwealth v. Culsoir, 209
A.3d 433, 435 (Pa. Super. 2019). The purpose of the rule
regarding final orders is to avoid “piecemeal appeals” and
“protracted litigation.” Commonwealth v. Bowers, 185 A.3d
358, 362 (Pa. Super. 2018). It “maintains distinctions between
trial and appellate review, respects the traditional role of the trial
judge, and promotes formality, completeness, and
efficiency.” Shearer v. Hafer, 177 A.3d 850, 855-56 (Pa.
2018). It also represents a determination that “the cost of a
wrong decision by a trial judge is typically outweighed by either
the benefit of uninterrupted trial proceedings or the assurance
that the issue is adequately reviewable through alternatives to
an immediate appeal.” Id. (citing Michael E. Harriss, Rebutting
the Roberts Court: Reinventing the Collateral Order
Doctrine Through Judicial Decision-Making, 91 Wash. U. L.
Rev. 721, 725 (2014)).
J.M., 219 A.3d at 650 (citations altered).
In quashing this appeal as being from a non-final order, the Majority
relies on Horn, supra. In Horn, this Court concluded that an order denying
a petition for removal from ARD was not a final order, reasoning as follows.
Given the unique nature of an order that accepts a defendant
into a[n] ARD program, this Court has held that “[a]cceptance 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
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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 he is dissatisfied
with the terms and conditions of the ARD program, is
to notify the trial court and the [district attorney]
regarding his 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).
In accordance [with] the above precedent, we conclude that the
trial court’s order denying Appellant’s “Petition to Remove
Himself from the ARD Program[]” is not a final order, as
acceptance into—and termination of—the ARD program is an
interlocutory matter. Therefore, Appellant is appealing from an
interlocutory determination of the trial court.
Horn, 172 A.3d at 1137-38 (citations altered; some citations omitted).
Instantly, Appellant is not appealing from an order regarding her
acceptance into, or termination of her acceptance into, the ARD program.
Appellant is not seeking to terminate her acceptance into the program; she
is appealing from an order modifying the terms and conditions of her ARD
program. Thus, I do not believe Horn controls. Moreover, given the nature
of ARD, “the cost of a wrong decision” by an ARD judge is not “outweighed
by [] the assurance that the issue is adequately reviewable through
alternatives to an immediate appeal.” J.M., 219 A.3d at 650 (citation and
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internal quotation marks omitted). Thus, I would find that an order
modifying ARD, where no further order is contemplated, is a final order.
Accordingly, I would not quash.
Despite the Majority’s conclusion that the order appealed from was not
a final, appealable order, my analysis hereinabove demonstrates that its
conclusion was not foregone. As such, I am troubled by counsel’s
abandonment of Appellant’s claims in arguing that this is not an appealable
order. If counsel believed Appellant’s claims to be frivolous, counsel should
have filed a petition to withdraw as counsel and a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981). Seeing as counsel did neither,
counsel did not come remotely close to complying with the requirements of
Anders and McClendon. Thus, although I believe we have jurisdiction over
this appeal, I do not believe we should reach the merits at this juncture.
Rather, I would direct counsel to file an advocate’s brief or compliant
Anders brief, and retain panel jurisdiction.
Based on the foregoing, I respectfully dissent.
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