J-S22011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KIMBERLY SUE HEVERLY

                            Appellant                 No. 48 MDA 2015


          Appeal from the Judgment of Sentence November 14, 2014
               In the Court of Common Pleas of Centre County
             Criminal Division at No(s): CP-14-CR-0000011-2014

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KIMBERLY SUE HEVERLY

                            Appellant                 No. 49 MDA 2015


          Appeal from the Judgment of Sentence November 14, 2014
               In the Court of Common Pleas of Centre County
             Criminal Division at No(s): CP-14-CR-0001319-2014


BEFORE: MUNDY, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.:                             FILED MARCH 11, 2016

        In this consolidated appeal, Appellant, Kimberly Sue Heverly, purports

to appeal from the aggregate judgment of sentence of three and a half to
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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seven years’ incarceration, imposed on November 14, 2014, after a jury

convicted her of six counts of Manufacture, Delivery or Possession with

Intent to Manufacture or Deliver a Controlled Substance.1       Upon review of

the record, which reveals a novel procedural conundrum, we quash and

remand the case for further proceedings.

        The trial court recounted part of the procedural posture of this case as

follows.

                    On March 13, 2013, [Appellant] was charged
              with four counts of Manufacture, Deliver, or
              Possession with Intent to Manufacture or Deliver a
              Controlled Substance [Suboxone], 35 Pa.C.S.A.
              § 780-113(a)(30), as a result of incidents alleged to
              have occurred between 8:00 p.m. on March 13, 2013
              and 12:00 a.m. on March 14, 2013. A preliminary
              hearing was held on January 2, 2014, and
              [Appellant] was bound over to this Court on all
              charges.     On January 24, 2014, a Criminal
              Information was filed at No. CP-14-0011-2014 for
              these charges. On July 11, 2014, an additional
              Criminal Complaint was filed charging [Appellant]
              with two counts of Manufacture, Deliver, or
              Possession with Intent to Manufacture or Deliver a
              Controlled Substance [Xanax], as a result of a
              related incident. A preliminary hearing was held on
              July 23, 2014, and [Appellant] was bound over to
              this Court on all charges. On July 29, 2014, a
              Criminal Information was filed at No. CP-14-1319-
              2014 for these charges. The Criminal Informations
              were consolidated on July 29, 2014.

                    On September 15, 2014, a jury trial was held
              and [Appellant] was found guilty on all charges. The
              verdict slip included an averment that the deliveries
____________________________________________


1
    35 P.S. § 780-113(a)(30).



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           occurred within 1,000 feet of a school. The jury
           found this fact beyond a reasonable doubt for all of
           the deliveries.     On November 4, 2014, the
           Commonwealth filed a Notice that it intended to seek
           mandatory minimum 2 – 4 years’ incarceration under
           18 Pa.C.S.A. § 6317 for each count. [Appellant] was
           sentenced on November 14, 2014 to an aggregate
           sentence of not less than 3½ nor more than 7 years,
           but the Court did not apply the mandatory minimum
           2 – 4 years’ incarceration under 18 Pa.C.S.A.
           § 6317.

                  [Appellant] timely filed her Post-Sentence
           Motion, asking this Court to grant her a new trial. In
           particular, [Appellant] ask[ed] the Court to amend
           her sentences to provide for RRRI minimum
           sentences or State Motivational Boot Camp
           eligibility; to merge Count 1 into Count 2 of Criminal
           Information No. CP-14-CR-1319-2014 for sentencing
           purposes; and to conform to standard range
           sentencing guidelines.     [Appellant] also allege[d]
           that the Court erred in denying [Appellant’s] Motions
           in Limine relating to the death of Devin Stacy and
           the testimony of Jennifer Nichole Smith. At the
           hearing held December 16, 2014, [Appellant]
           withdrew her Motion asking the Court to amend her
           sentencing structure to conform to standard range
           sentencing guidelines. Additionally, at the hearing,
           [Appellant] asked that if the Court d[id not] grant
           her a new trial, then alternatively she ask[ed] for the
           Court to deny the Commonwealth’s Post-Sentence
           Motion; allow her RRRI; make her Boot Camp
           eligible; and merge Count 1 into Count 2 of Criminal
           Information No. CP-14-CR-1319-2014 for sentencing
           purposes.

                 The Commonwealth timely filed its Post-
           Sentence Motion, asking the Court to resentence
           [Appellant] to apply the mandatory minimum 2 – 4
           years’ incarceration under 18 Pa.C.S.A. § 6317 for
           each count and to reflect the gravity of her crimes
           and the aggravating factors relied on by the
           Commonwealth.

Trial Court Opinion and Order, 12/19/14, at 1-2.

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       Following the hearing, the trial court entered an order on December

19, 2014 granting Appellant’s request, at CP-14-CR-1319-14, to merge

Count 1 into Count 2; the trial court otherwise denied the post-sentence

motions of Appellant and the Commonwealth.              Notably, the November 14,

2014 sentencing orders at CP-14-CR-1319-14 had provided that Appellant

be sentenced at Count 1 to one to two years’ imprisonment, and at Count 2

to fifteen to thirty months’ imprisonment, with Count 2 to run consecutively

to Count 1. Significantly, the trial court’s December 19, 2014 order does not

explain how its merger of Count 1 into Count 2 impacted the overall

sentencing scheme, and the trial court did not vacate the November 14,

2014 judgment of sentence or enter an amended sentencing order.

       Moreover, and equally concerning, the December 19, 2014 order

provided that the trial court would “schedule a hearing to resentence

[Appellant], at which time the Court will reconsider [Appellant’s] eligibility

for RRRI and Boot Camp, as well as the aggravating factors relied on by the

Commonwealth.” Id. at 5.

       On January 2, 2015, Appellant filed these appeals, which were

consolidated sua sponte on January 23, 2015.             On January 16, 2015, the

Commonwealth        filed   appeals    with    the   Supreme   Court,2   which   were

____________________________________________


2
  The Commonwealth advanced a jurisdictional argument pursuant to
Pennsylvania Rules of Appellate Procedure 909 and 910, and the then-
pending decision in Commonwealth v. Hopkins before our Supreme Court.
(Footnote Continued Next Page)


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transferred to this Court, and consolidated on September 1, 2015. At the

Commonwealth’s request, we discontinued its consolidated appeals on

September 18, 2015.

      With regard to Appellant, the record indicates that the trial court twice

directed her to file a concise statement consistent with Pennsylvania Rule of

Appellate Procedure 1925(b): on January 9, 2015, and again on January 21,

2015. Appellant complied on January 21, 2015. On January 30, 2015, the

trial court entered an order stating that it “vacates its Concise Statement

Order entered January 21, 2015.” Order, 1/30/15. Although the trial court

issued an Opinion in Response to Matters Complained of on Appeal on

February 23, 2015, the one and one-half page filing addressed only the

issues raised by the Commonwealth in its appeal which was discontinued

with this Court on September 18, 2015.

      On appeal, Appellant presents three issues for our review as follows.

             A. Did the Trial court err in denying [Appellant’s]
                Motion in Limine with respect to the death of
                Devin Stacey, in that she was not charged with
                the crime of Drug Delivery Resulting in Death, 18
                Pa.C.S.A. § 2506, and in that the testimony and
                evidence of the death of Devin Stacey was
                irrelevant, not legally probative of any of the
                issues decided by the Jury, and extremely
                prejudicial and unduly inflammatory?
                       _______________________
(Footnote Continued)

The Supreme Court subsequently decided Hopkins on June 15, 2015, and
thereafter the Commonwealth filed an application to discontinue its appeals
based on the Hopkins decision. See Commonwealth v. Hopkins, 117
A.3d 247 (Pa. 2015) (holding 18 Pa.C.S.A. § 6317 unconstitutional).



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            B. Did the Trial Court err in denying [Appellant’s]
               Motion in Limine with respect to the testimony of
               Jennifer Nichole Smith, in that her testimony and
               evidence of [Appellant’s] prior purported use
               and/or purchase of Klonopin and/or Xanax was
               irrelevant, not legally probative of any of the
               issues decided by the Jury, and extremely
               prejudicial and unduly inflammatory?

            C. Did the Sentencing Court impose illegal sentences
               by Ordering that [Appellant] was not eligible for
               R.R.R.I. minimum sentences?

Appellant’s Brief at 14-15.

      Before reaching Appellant’s issues, we note that on September 1,

2015, this Court issued an order directing Appellant to show cause why her

appeal should not be quashed as being taken from an unappealable order,

because “it appears post-sentence motions remain pending below in relation

to RRRI and Boot Camp determinations.” Commonwealth v. Heverly, Per

Curiam Order, 9/1/15. We further recognize that the merger ordered in the

trial court’s December 19, 2014 order appears implicitly to disrupt the

judgment of sentence imposed on November 14, 2014, although that

judgment of sentence was never vacated or amended.

      On September 9, 2015, Appellant responded that “because the

Sentencing Court never vacated the judgments of sentence imposed on

November 14, 2014, Appellant [] believes and avers that her appeal to [the

Superior] Court was properly filed and should not be quashed.” Appellant’s

Response to Court’s Order Filed on September 1, 2015, 9/9/15, at 3.    On

September 18, 2015, this Court discharged its show-cause order, stating


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“[t]he Court will take no action at this time but will refer the issue to the

merits panel to be assigned to this case.”3      Order, 9/18/15. Upon careful

review of the unusual procedural posture of this case, we are constrained to

find that Appellant’s appeal is premature.

       We may raise the issue of jurisdiction sua sponte, even when neither

of the parties has done so.         Commonwealth v. Borrero, 692 A.2d 158,

159 (Pa. Super. 1997) (citation omitted). Although in Borrero the appellant

improperly appealed prior to the disposition of his post-sentence motion, we

similarly find that, given the unique circumstances of this case with the trial

court’s merger determination and stated intent to convene a resentencing

hearing, “the instant appeal is from an interlocutory judgment of sentence.”

Id. at 160.

       Pennsylvania Rule of Appellate Procedure 341 provides in pertinent

part as follows.

              Rule 341. Final Orders; Generally

              (a) General rule. … [A]n appeal may be taken as of
              right from any final order of an administrative
              agency or lower court.
____________________________________________


3
   Neither party, in their respective briefs, has addressed this Court’s
jurisdiction relative to the judgment of sentence and the trial court’s
subsequent post-sentence order finding merger and indicating the intention
to resentence. Likewise, the trial court in its one and one-half page Opinion
in Response to Matters Complained of on Appeal, issued February 23, 2015
in response to the Commonwealth’s now discontinued appeal, does not
discuss the procedural quagmire presented to this Court.




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          (b) Definition of final order. A final order is any
          order that:

          (1) disposes of all claims and of all parties; or

          (2) is expressly defined as a final order by statute;
          or

          (3) is entered as a final order pursuant to subdivision
          (c) of this rule.

          (c) Determination of finality. When more than
          one claim for relief is presented in an action, whether
          as a claim, counterclaim, cross-claim, or third-party
          claim or when multiple parties are involved, the trial
          court or other governmental unit may enter a final
          order as to one or more but fewer than all of the
          claims and parties only upon an express
          determination that an immediate appeal would
          facilitate resolution of the entire case. Such an order
          becomes appealable when entered. In the absence
          of such a determination and entry of a final order,
          any order or other form of decision that adjudicates
          fewer than all the claims and parties shall not
          constitute a final order. In addition, the following
          conditions shall apply:

          (1) The trial court or other governmental unit is
          required to act on an application for a determination
          of finality under subdivision (c) within 30 days of
          entry of the order. During the time an application for
          a determination of finality is pending the action is
          stayed.

          (2) A notice of appeal may be filed within 30 days
          after entry of an order as amended unless a shorter
          time period is provided in Rule 903(c). Any denial of
          such an application shall be reviewable only for
          abuse of discretion pursuant to Chapter 15.

          (3) Unless the trial court or other governmental unit
          acts on the application within 30 days of entry of the
          order, the trial court or other governmental unit shall
          no longer consider the application and it shall be
          deemed denied.



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            (4) The time for filing a petition for review will begin
            to run from the date of entry of the order denying
            the application for a determination of finality or, if
            the application is deemed denied, from the 31st day.
            A petition for review may be filed within 30 days of
            the entry of the order denying the application or
            within 30 days of the deemed denial unless a shorter
            time period is provided by Rule 1512(b).

Pa.R.A.P. 341.

      Instantly, we have a situation where, although a judgment of sentence

has been entered and the trial court has disposed of the parties’ post-

sentence motions in its December 19, 2014 order, that order does not

“dispose of all claims,” such that the de facto result is an interlocutory

judgment of sentence.

      In sum, we are presented with a convoluted morass, where Appellant’s

November 14, 2014 sentence is compromised by the trial court’s December

19, 2014 order merging Count 1 with Count 2 at CP-14-CR-1319-14, and

expressing the trial court’s intent to “resentence [Appellant], at which time

the Court will reconsider [Appellant’s] eligibility for RRRI and Boot Camp, as

well as the aggravating factors relied on by the Commonwealth.” Trial Court

Opinion and Order, 12/19/14, at 5. Because there is no final judgment of

sentence for this Court to review, we lack jurisdiction, and are constrained to

quash the appeal as interlocutory. Borrero, supra.

      Based on the foregoing unique circumstances, we remand this case to

the trial court to convene the intended hearing to resentence Appellant, and




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to clarify such sentence in light of the trial court’s post-sentence merger

determination.

      Appeal quashed. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/11/2016




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