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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
:
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.*
MEMORANDUM BY NICHOLS, J.: FILED: FEBRUARY 22, 2021
Appellant Amanda Lynn Gotshall appeals from the order granting the
Commonwealth’s petition to modify her accelerated rehabilitative disposition
(ARD) supervision. Appellant requests this Court to quash this appeal. We
quash.
The facts are unnecessary to recap extensively. Briefly, the
Commonwealth charged Appellant with witness intimidation, and Appellant
was accepted into the ARD program. On November 12, 2019, the
Commonwealth filed a petition to modify ARD conditions, specifically, to add
a no-contact order with respect to a minor victim/witness. The trial court
granted the Commonwealth’s petition on November 27, 2019. Order,
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S47022-20
11/27/19. Appellant filed a timely notice of appeal on Monday, December
23, 2019, and a timely court-ordered Pa.R.A.P. 1925(b) statement.
Appellant raises the following issue: “Must the instant appeal be
dismissed as this Court lacks jurisdiction?” Appellant’s Brief at 8. We review
whether an order is appealable under a de novo standard of review.
Commonwealth v. McClure, 172 A.3d 668, 683 (Pa. Super. 2017). In
Commonwealth v. Horn, 172 A.3d 1133 (Pa. Super. 2017), this Court
addressed our appellate jurisdiction from an order denying the defendant’s
petition to remove himself from the ARD program. Horn, 172 A.3d at 1135.
In quashing the defendant’s appeal, the Court explained:
Given the unique nature of an order that accepts a defendant
into a ARD program, this Court has held that acceptance of ARD
is an interlocutory matter and consequently is not appealable. . .
.
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
Proceeding under the ARD program is not a right. An appellant’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. The trial court may then enter a
non-appealable interlocutory order terminating the appellant’s
participation in the program. The appellant’s case would then
proceed to the trial which has been postponed during the term of
the appellant’s participation in the ARD program.
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Id. at 1137-38 (citations omitted and formatting altered). The Horn Court
also explained that the defendant did not fulfill any of the requirements for
appealing an interlocutory order as of right or by permission or as a
collateral order. See id. at 1138; see also Pa.R.A.P. 311, 312, 313.
Here, Appellant has appealed from an order modifying one of the
conditions of her ARD supervision. Order, 11/27/19. Although Appellant,
unlike the defendant in Horn, is not appealing an order accepting her into
the ARD program, any ARD determination “constitutes a non-final
proceeding in which the resolution of the criminal prosecution is merely held
in abeyance.” See Horn, 172 A.3d at 1137. As the Horn Court noted,
generally, a defendant may appeal only from a final judgment of sentence
and not from an order relating to ARD. See id. at 1137-38. We add that
Appellant has not suggested the order is an appealable interlocutory or
collateral order. See id. at 1138. For these reasons, we quash.1
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1 The dissent is troubled by counsel’s alleged abandonment of Appellant’s
claims. Dissent. Mem. at 4. While we are sensitive to the dissent’s
concerns, it is well-settled that this Court can only exercise appellate
jurisdiction when an appealable order exists, and we are bound by the Horn
Court’s holding that the order at issue, as we quoted above, “constitutes a
non-final proceeding in which the resolution of the criminal prosecution is
merely held in abeyance.” See Horn, 172 A.3d at 1137. Our Supreme
Court has explicitly held that “[j]urisdiction is the predicate upon which a
consideration of the merits must rest.” Robinson v. Pa. Bd. of Prob. &
Parole, 582 A.2d 857, 860 (Pa. 1990) (citation omitted). Without appellate
jurisdiction, an appellate court may not address the merits. Riverlife Task
Force v. Planning Comm’n of Pittsburgh, 966 A.2d 551, 559 (Pa. 2009)
(holding that it would not address “substantive claims” due to lack of
(Footnote Continued Next Page)
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Appeal quashed.
Judge Stabile joins the memorandum.
Judge Strassburger files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/22/2021
(Footnote Continued) _______________________
appellate jurisdiction); Commonwealth v. Geer, 936 A.2d 1075, 1078-79
(Pa. Super. 2007) (quashing appeal and therefore not addressing allegation
that prior appeal counsel abandoned the defendant by not filing an appellate
brief); see also Commonwealth v. Hall, 2020 WL 1547836 (Pa. Super.
filed Apr. 1, 2020) (unpublished mem.) (quashing untimely appeal, which
precluded merits analysis of counsel’s Anders brief). We acknowledge that
non-precedential decisions may be cited for their persuasive value only.
See Pa.R.A.P. 126(b).
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