J-S36028-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TIMOTHY FLAHERTY

                            Appellant                 No. 2888 EDA 2013


              Appeal from the Order Entered September 26, 2013
                 In the Court of Common Pleas of Pike County
              Criminal Division at No(s): CP-52-CR-0000320-2012
                                          CP-52-CR-0000321-2012


BEFORE: GANTMAN, P.J., JENKINS, J., and FITZGERALD, J.**

MEMORANDUM BY JENKINS, J.:                       FILED SEPTEMBER 10, 2014

        The Commonwealth of Pennsylvania appeals the September 26, 2013

order of the Court of Common Pleas of Pike County granting Timothy

Flaherty an extension of his previously granted furlough from the county

                                                   -traumatic stress syndrome



        On February 28, 2013, the trial court sentenced Flaherty to a term of

incarceration in the Pike County Correctional Facility of not less than one

year plus ninety days but not more than five years. The sentencing order




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**
     Former Justice specially assigned to the Superior Court.
J-S36028-14




Furlough seeking leave to receive inpatient treatment at a Residential



specializes in PTSD in Montrose, New York.



Furlough for a forty-five day treatment program at the aforementioned

facility. On March 14, 2013, the Commonwealth filed a Petition for Rescission



arrest in Dauphin County. The trial cou

Petition for Rescission and entered an order rescinding the previous furlough

order. On March 19, 2013, Flaherty filed a second Petition for Furlough in

which he averred the bench warrant had been issued in error and had been

rescinded.1 On March 20, 2013, following a hearing, the trial court granted



terms of the March 11, 2013 furlough order.

       After Flaherty successfully completed DRP, he petitioned the trial court

for a furlough extension to remain at the in-patient PTSD facility and

continue receiving PTSD treatment. On May 2, 2013, following a hearing, the




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1
 In his petition, Flaherty included a March 13, 2013 order from Dauphin
County rescinding the bench warrant.




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Commonwealth timely ap

furlough petition and first extension.

      Pennsylvania Rule of Appellate Procedure 1701 explains the effect of



pending matter:

            Rule 1701. Effect of Appeal Generally

            (a) General rule. Except as otherwise prescribed by
            these rules, after an appeal is taken or review of a
            quasijudicial order is sought, the trial court or other
            government unit may no longer proceed further in
            the matter.

            (b) Authority of a trial court or agency after
            appeal. After an appeal is taken or review of a
            quasijudicial order is sought, the trial court or other
            government unit may:

                  (1) Take such action as may be necessary to
            preserve the status quo, correct formal errors in
            papers relating to the matter, cause the record to be
            transcribed, approved, filed and transmitted, grant
            leave to appeal in forma pauperis, grant
            supersedeas, and take other action permitted or
            required by these rules or otherwise ancillary to the
            appeal or petition for review proceeding.

                                     ***

Pa.R.A.P. 1701 (emphasis added).



original Petition for Furlough and first extension was pending, Flaherty filed a

Petition for Continued Furlough. On September 26, 2013, following a

hearing, the trial court granted the petition, finding that Flaherty made



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significant improvements2 during the furlough. The trial court ordered

Flaherty to continue to reside in the treatment facility twenty-four hours a

day and to begin a new treatment program called Common Ground at the

facility, which would focus on issues such as substance abuse and PTSD.

Trial Court Opinion, at 3. The Commonwealth appealed the grant of the

extension,



to be released from serving his incarceration sentence [to] a new program

[Common Ground] after completion of a prior program [DRP] and expired



       On March 31, 2014, this Court addressed the prior appeals3 and found

the initial furlough and its extension improper. We held in Commonwealth

v. Flaherty, 89 A.3d 286 (Pa.Super.2014) that the trial court did not have




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2
  The significant improvements included negative results from multiple drug
urine tests, attendance at groups and meetings as scheduled, participation
in substance abuse groups, and completion of monthly community service.
See Trial Court Opinion, at 3; August 23, 2013 Letter from Jay Pomales,
Ph.D, Department of Veterans Affairs, at 1.
3



docket numbers 1034 EDA 2013 and 1440 EDA 2013.



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leave from a county jail. Id. at 289 (citing 42 Pa.C.S. § 9813).

         Accordingly, regardless of our interpretation of Pa.R.A.P. 1701, our

prior holding mandates that any orders extending the improvidently granted

initial furlough be vacated. As logic dictates and Appellee concedes,4 because

the trial court did not have jurisdiction to enter the initial furlough and the

first extension, the trial court could not have jurisdiction to continue



         Order reversed. Jurisdiction relinquished.

         President Judge Gantman joins the memorandum.

         Justice Fitzgerald files concurring statement in which Judge Jenkins

joins.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/10/2014

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4
  See                                                               not initially
possess jurisdiction to grant furlough to Mr. Flaherty, it can only logically be
concluded that the [t]rial [c]ourt did not possess jurisdiction to continue
furlough, regardless of the circumstances, under Pa.R.A.P. 1701.
Accordingly, Mr. Flaherty is constrained to concede that the [t]rial [c]ourt




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