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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                        Appellant       :
                                        :
                   v.                   :          No. 198 MDA 2016
                                        :
BARTON PATRICK JONES                    :


               Appeal from the Order Entered January 15, 2016,
               in the Court of Common Pleas of Franklin County
               Criminal Division at No. CP-28-CR-0000376-2015


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STEVENS,* P.J.E.


JUDGMENT ORDER BY FORD ELLIOTT, P.J.E.:           FILED AUGUST 29, 2016

     The Commonwealth appeals from the January 15, 2016 order granting

appellee’s pre-trial motion to sever Counts 2 and 3 of the criminal

information.   The Commonwealth certified, pursuant to Pa.R.A.P. 311(d),

that this order will terminate or substantially handicap the prosecution and

contends it is entitled to an interlocutory appeal as of right.         The

Commonwealth further argues that the severance order constituted a

collateral order pursuant to Pa.R.A.P. 313. (Commonwealth’s brief at 4-6.)

For the foregoing reasons, we disagree and quash the appeal.

     In its opinion filed pursuant to Pa.R.A.P. 1925(a), the trial court

concluded that the January 15, 2016 severance order was interlocutory and




* Former Justice specially assigned to the Superior Court.
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not appealable, and that this court should quash the Commonwealth’s

appeal for lack of jurisdiction.   (Rule 1925(a) opinion, 3/8/16 at 2.)      In

support of this rationale, the trial court relied on our supreme court’s

decision in Commonwealth v. Smith, 544 A.2d 943 (Pa. 1988) (plurality).

(Id. at 4-5.)   In Smith, our supreme court held that an order granting

severance of two criminal informations was interlocutory, and thus not

appealable by the Commonwealth.        Smith, 544 A.2d at 945.       The Smith

court reasoned that the severance order did not constitute one that

substantially handicaps the prosecution because the Commonwealth was still

able to seek convictions on the charges it filed, albeit in two separate

proceedings rather than one. Id.

      Recognizing that “the law regarding Commonwealth appeals under

Rule 311(d) is far from settled[,]” a panel of this court recently reiterated in

Commonwealth v. Woodard, 136 A.3d 1003 (Pa.Super. 2016), that the

Smith holding remains good law. Woodard, 136 A.3d at 1005.

      The Woodard court stated as follows:

                  Applying the reasoning from Smith, an order
            denying    joinder,   like  an      order   granting
            severance, is interlocutory and thus not
            appealable. Here, the Commonwealth is free to
            seek conviction on all counts, against each
            defendant, in three separate trials. Therefore, denial
            of the motion for joinder does not terminate or
            substantially handicap the prosecution and is not
            appealable under Rule 311(d).           To expand
            Rule 311(d) to encompass such interlocutory
            review would be to disturb the orderly process



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             of litigation. Strict application of the Rule assures
             that trials will go forward as scheduled.

Woodard, 136 A.3d at 1007 (citations and internal quotation marks

omitted; emphasis added).

        Based on the foregoing precedent, we are constrained to conclude that

the Commonwealth’s appeal of the order granting appellee’s motion to sever

must be quashed because the order is not appealable under Rule 311(d).

        Furthermore, we reject the Commonwealth’s assertion that the trial

court’s January 15, 2016 severance order qualified as a collateral order.

(See Commonwealth’s brief at 4-6.) Rule 313(b) defines a collateral order

as one that is “[(1)] separable from and collateral to the main cause of

action [(2)] where the right involved is too important to be denied review

and [(3)] the question presented is such that if review is postponed until

final   judgment    in    the   case,   the   claim   will   be    irreparably   lost.”

Pa.R.A.P. 313(b) (numeration added).          To benefit from the collateral order

doctrine, an order must satisfy all three elements.               Commonwealth v.

Williams, 86 A.3d 771, 780 (Pa. 2014). We have found no case law in this

Commonwealth wherein a severance order has been found to constitute a

collateral order. Moreover, contrary to the Commonwealth’s contention, the

instant order does not satisfy prong 2 to qualify as a collateral order under

Rule 313(b).

        Appeal quashed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/29/2016




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