Com. v. Horn, T. , 172 A.3d 1133 ( 2017 )

J-S60013-17
2017 PA Super 316COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TIMOTHY HORN,
Appellant No. 1918 WDA 2016
Appeal from the Order November 30, 2016
In the Court of Common Pleas of Bedford County
Criminal Division at No(s): CP-05-CR-0000608-2015
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
OPINION BY OLSON, J.: FILED OCTOBER 04, 2017
Appellant, Timothy Horn, appeals from the order entered on November
30, 2016, denying his “Petition to Remove Himself from the ARD [1]
Program.” We quash this appeal.
On July 22, 2015, Appellant was arrested and charged with driving
under the influence (“DUI”) of a controlled substance. 75 Pa.C.S.A.
§ 3802(d)(2). On April 15, 2016, Appellant petitioned for acceptance into
the ARD program. The Commonwealth approved Appellant’s petition and,
on June 2, 2016, the trial court accepted Appellant into the ARD program.
Trial Court Order, 6/2/16, at 1-2.
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1 “ARD” stands for “accelerated rehabilitative disposition.”
*Former Justice specially assigned to the Superior Court.
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On September 23, 2016, Appellant filed a “Petition to Remove Himself
from the ARD Program” (hereinafter “Appellant’s Petition”). Within his
petition, Appellant simply claimed:
[Appellant has] decided that despite the fact that he has
been placed on the [ARD] Program, that he desires to
contest the charges against him. Therefore he does not
wish to be in the [ARD] Program any longer and would
desire to proceed to a trial by [c]ourt.
Appellant’s Petition, 9/23/16, at 1.2
On November 30, 2016, the trial court held a hearing on Appellant’s
Petition and, at the conclusion of the hearing, the trial court denied
Appellant’s Petition on the record.3 N.T. Hearing, 11/30/16, at 6. Appellant
filed a notice of appeal on December 19, 2016. He raises one claim on
appeal:
Whether or not the trial court erred by denying [Appellant’s]
Petition to Remove Himself from the ARD Program?
____________________________________________
2 On September 23, 2016, Appellant also filed a motion to suppress the
results of his blood test and claimed that he was entitled to relief under the
United States Supreme Court’s recent opinion in Birchfield v. North
Dakota, ___ U.S. ___, 136 S.Ct. 2160 (2016). According to Appellant, after
he was arrested, he “was transferred to the hospital and requested to allow
the hospital to take a blood test to determine if he had been drinking or was
otherwise under the influence of any type of drugs or alcohol.” Appellant’s
Motion to Suppress, 9/23/16, at 2. Appellant claimed that, since the police
did not obtain a search warrant for his blood, the blood draw was
unconstitutional and the results of the test must be suppressed. Id. at 2-3.
3 During the November 30, 2016 hearing, the trial court also ruled that
Appellant’s suppression motion was moot, given that the trial court denied
Appellant’s Petition. N.T. Hearing, 11/30/16, at 6.
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Appellant’s Brief at 4 (some internal capitalization omitted).
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).
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
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charged with DUI and the trial judge admitted Appellant into an ARD
program pursuant to 75 Pa.C.S.A. § 3807.
Section 3807, which is entitled “Accelerated Rehabilitative Disposition,”
declares, in relevant part:
(a) Eligibility.--
(1) Except as set forth in paragraph (2), a defendant
charged with a violation of section 3802 (relating to
driving under influence of alcohol or controlled
substance) may be considered by the attorney for the
Commonwealth for participation in an Accelerated
Rehabilitative Disposition program in a county if the
program includes the minimum requirements contained
in this section.
...
(e) Failure to comply.--
(1) A defendant who fails to complete any of the
conditions of participation contained in this section shall
be deemed to have unsuccessfully participated in an
Accelerated Rehabilitative Disposition program, and the
criminal record underlying participation in the program
shall not be expunged.
(2) The court shall direct the attorney for the
Commonwealth to proceed on the charges as prescribed
in the Rules of Criminal Procedure if the defendant:
(i) fails to meet any of the requirements of this
section;
(ii) is charged with or commits an offense under 18
Pa.C.S. (relating to crimes and offenses); or
(iii) violates any other condition imposed by the
court.
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75 Pa.C.S.A. § 3807.
The Pennsylvania Rules of Criminal Procedure provide a
comprehensive series of rules concerning the ARD program. As is relevant
to the case at bar, the rules declare:
 “acceptance into and satisfactory completion of the accelerated
rehabilitative disposition program offers the defendant an opportunity
to earn a dismissal of the pending charges;”4
 “should the defendant fail to complete the program, the defendant
waives the appropriate statute of limitations and the defendant's right
to a speedy trial;”5
 “[w]hen a defendant is accepted into the program of accelerated
rehabilitative disposition after the filing of an information, the judge
shall order that further proceedings on the charges shall be postponed
during the term of the program;”6
 “[w]hen the defendant shall have completed satisfactorily the program
prescribed and complied with its conditions, the defendant may move
the court for an order dismissing the charges. . . . If there are no
____________________________________________
4 Pa.R.Crim.P. 312(1).
5 Pa.R.Crim.P. 312(2).
6 Pa.R.Crim.P. 315.
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objections filed [to the defendant’s motion], the judge shall thereafter
dismiss the charges against the defendant;”7
 “[w]hen the judge orders the dismissal of the charges against the
defendant, the judge also shall order the expungement of the
defendant's arrest record;”8 and,
 “[i]f the attorney for the Commonwealth files a motion alleging that
the defendant during the period of the program has violated a
condition thereof . . . the judge who entered the order for ARD may
issue such process as is necessary to bring the defendant before the
court. . . . If the judge finds that the defendant has committed a
violation of a condition of the program, the judge may order, when
appropriate, that the program be terminated, and that the attorney for
the Commonwealth shall proceed on the charges as provided by law.
No appeal shall be allowed from such order.”9
Therefore, in accordance with the above: Appellant was not permitted
to plead guilty prior to being accepted into the ARD program; the trial court
“postponed . . . further proceedings on the charges” after Appellant was
accepted into the ARD program; if Appellant chooses to complete the
____________________________________________
7 Pa.R.Crim.P. 319.
8 Pa.R.Crim.P. 320.
9 Pa.R.Crim.P. 318(A) and (C) (emphasis added).
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program, Appellant “may move the [trial] court for an order dismissing the
charges;” if there are no objections to Appellant’s motion to dismiss, the trial
court must dismiss the charges and, if no further objections are filed, the
trial court must order the expungement of Appellant’s arrest record; and, if
Appellant fails to complete the program or violates a condition of the
program, the “[trial] court shall direct the attorney for the Commonwealth to
proceed on the charges as prescribed in the Rules of Criminal Procedure”
and Appellant cannot appeal from the trial court’s order terminating his
participation in the program. See Pa.R.Crim.P. 310-320 and 75 Pa.C.S.A.
§ 3807(e).
Given the unique nature of an order that accepts a defendant into a
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 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
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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)).
In accordance 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. Getz, 598 A.2d at 1309.
Therefore, Appellant is appealing from 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
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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
the collateral order doctrine (per Pa.R.A.P. 313). Thus, since we do not have
jurisdiction over this appeal, we are required to quash Appellant’s appeal.
See 42 Pa.C.S.A. § 742.10
Appeal quashed. Commonwealth’s “Motion to Dismiss Appellant’s
Appeal” denied as moot.
____________________________________________
10 If Appellant wishes to be removed from the ARD program, Appellant may
always refuse to comply with the conditions of the program. In that event,
“[t]he court shall direct the attorney for the Commonwealth to proceed on
the charges as prescribed in the Rules of Criminal Procedure.” 75 Pa.C.S.A.
§ 3807(e).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/4/2017
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