Com. v. Parrella, J.

J-A04005-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JOSEPH MICHAEL PARRELLA : No. 1403 EDA 2021
Appeal from the Order Entered June 15, 2021
In the Court of Common Pleas of Pike County Criminal Division at No(s):
CP-52-CR-0000592-2019
BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.
JUDGMENT ORDER BY LAZARUS, J.: FILED NOVEMBER 18, 2022
The Commonwealth of Pennsylvania appeals from the order, entered in
the Court of Common Pleas of Pike County, denying its motion in limine
seeking permission to present evidence of defendant Joseph Michael Parrella’s
2011 driving under the influence (DUI)1 charge. After careful review, we
quash the appeal.
In 2011, Parrella had been charged with DUI, after which he entered
into the Accelerated Rehabilitative Disposition (ARD) program, which he
successfully completed. Subsequently, on January 27, 2019, the
Commonwealth charged Parrella with DUI and related offenses.2
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1 75 Pa.C.S.A. § 3806(a).
2 We note that on December 3, 2019, the Commonwealth, via Criminal
Information, amended these charges to third-offense DUIs. Then, on January
(Footnote Continued Next Page)
J-A04005-22
On August 14, 2020, the Commonwealth filed a motion in limine
requesting that testimony and evidence of Parrella’s 2011 arrest be permitted
at trial to establish that Parrella’s current offense was his third DUI offense.
On April 7, 2021, the trial court denied the Commonwealth’s motion in limine,
based largely upon Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super.
2020), which held as unconstitutional that portion of the DUI statute equating
prior acceptance of ARD with a prior conviction for purposes of imposing a
mandatory minimum sentence for a second or subsequent DUI offense. See
Trial Court Opinion, 9/23/21, at 3-7. This panel stayed disposition of the
Commonwealth’s appeal pending this Court’s en banc decision in
Commonwealth v. Moroz, --- A.3d ---, 2022 PA Super 169 (Pa. Super. filed
Oct. 4, 2022) (en banc). Ultimately, in Moroz, our Court overruled Chichkin
and held that the portion of section 3806(a) that equates prior acceptance of
ARD to a prior conviction for purposes of imposing a section 3804 mandatory
minimum sentence passes constitutional muster.
As a result of our decision in Moroz, the Commonwealth is no longer
barred from presenting evidence of a prior ARD at a sentencing hearing.
Therefore, the Commonwealth can no longer demonstrate that its prosecution
has been terminated or substantially handicapped, as required by Pa.R.A.P.
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17, 2020, via an Amended Criminal Information, the Commonwealth re-
amended them to second-offense DUIs. Subsequently, on February 13, 2020,
the Commonwealth filed a Second Amended Criminal Information, which
changed them back to third-offense DUIs. See Trial Court Opinion, 9/23/21,
at 1-2.
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J-A04005-22
311(d), for interlocutory appeals as of right.3, 4 Accordingly, we lack
jurisdiction to entertain this appeal, and we quash.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2022
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3 Appellate review of any court order is a jurisdictional question. See
Commonwealth v. Parker, 173 A.3d 294, 296 (Pa. Super. 2017). We may
raise the issue of jurisdiction sua sponte. See Commonwealth v. Yarris,
731 A.2d 581, 587 (Pa. 1999).
4 Importantly, this case has a unique procedural posture due to the pre-trial
nature of the underlying order denying the motion in limine. When the notice
of appeal was filed by the Commonwealth, Chichkin was still controlling, and,
thus, the Commonwealth’s case was substantially handicapped by the trial
court’s denial of their motion in limine because, the Commonwealth argues,
trial was the only time the Commonwealth could present evidence of Parrella’s
2011 ARD. See Chichkin, supra. However, during the pendency of this
appeal Chichkin was overruled by Moroz and now the Commonwealth is
expressly permitted to present a prior ARD at the sentencing hearing to
enhance mandatory minimums of second or subsequent DUI convictions. See
Moroz, supra. Thus, the Commonwealth’s case is no longer substantially
handicapped, and the appeal can no longer be taken as of right. See Pa.R.A.P.
311(d).
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