Com. v. Painter, J., Jr. ( 2020 )

J-S31027-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN M PAINTER JR. :
:
Appellant : No. 102 MDA 2020
Appeal from the Order Entered December 20, 2019
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0001651-2019
BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
JUDGMENT ORDER BY DUBOW, J.: FILED JULY 23, 2020
Appellant, John M. Painter, Jr., appeals from the December 20, 2019
Order entered in the Berks County Court of Common Pleas denying his Motion
to Dismiss pursuant to Pa.R.Crim.P. 600. We quash this appeal.
Briefly, on May 22, 2007, the Commonwealth charged Appellant with
Statutory Sexual Assault, Involuntary Deviate Sexual Intercourse (“IDSI”),
and Indecent Assault arising from Appellant’s abuse of his brother. Following
a June 12, 2007 preliminary hearing, the magistrate court dismissed the
charges against Appellant.
On May 22, 2014, the Commonwealth charged Appellant with IDSI
Person Unconscious, IDSI Person Less Than 16 Years of Age, Indecent Assault,
J-S31027-20
Incest, and Corruption of Minors1 arising from the same facts as the earlier
charges.
On October 15, 2019, Appellant filed a Motion to Dismiss pursuant to
Rule 600 alleging that the Commonwealth failed to exercise due diligence in
bringing the case to trial.2 On November 1, 2019, the trial court held a hearing
on Appellant’s Motion and, on December 20, 2019, the trial court denied
Appellant’s Rule 600 Motion.
This appeal followed. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.3
Appellant raises the following issue on appeal: “Whether the trial court
erred in denying the Motion to Dismiss Pursuant to Rule 600 inasmuch as more
than 365 days elapsed, even after the addition of excludable time, from the
date of the filing of the original Criminal Complaint to the date of the Motion
to Dismiss Pursuant to Rule 600, therefore entitling Appellant [] to a discharge
under Rule 600[?]” Appellant’s Brief at 5.
Before we address is the merits of Appellant’s issue, we consider
whether this appeal is properly before us.
____________________________________________
1 18 Pa.C.S. §§ 3123(a)(3), 3123(a)(7), 3126(a)(8), 4302, and 6301(a)(1).
2 Appellant was a fugitive from August 11, 2014 to March 27, 2019.
3On March 2, 2020, this Court issued a Rule directing Appellant to show cause
as to why we should not dismiss this appeal as interlocutory. Following receipt
of Appellant’s response, we discharged the Rule and referred this issue to the
merits panel.
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J-S31027-20
In a criminal case, a direct appeal properly lies from entry of the
judgment of sentence. See Commonwealth v. Pratt, 930 A.2d 561, 562
n.1 (Pa. Super. 2007). An order denying a defendant’s motion to dismiss for
violation of Rule 600 is not immediately appealable. Commonwealth v.
Johnson, 705 A.2d 830, 833 (Pa. 1998) (citing Commonwealth v. Myers,
322 A.2d 131, 132 (Pa. 1974) (explaining that “a defendant may appeal only
from a final judgment of sentence and an appeal from any prior order will be
quashed as interlocutory)).
Here, Appellant has appealed from the trial court’s Order denying his
Rule 600 Motion to Dismiss. Because this is a non-appealable, interlocutory
order, we are constrained to quash this appeal. Myers, 322 A.2d at 133.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/23/2020
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