J-S77023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JESSICA TAYLOR CAPPS

                            Appellant                  No. 722 MDA 2016


                  Appeal from the Order Entered April 28, 2016
                 in the Court of Common Pleas of Berks County
               Criminal Division at No.: CP-06-MD-0000441-2016


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED FEBRUARY 24, 2017

        Appellant, Jessica Taylor Capps, appeals from the order denying her

request to appeal nunc pro tunc1 from her summary placement in an

accelerated rehabilitative disposition (ARD) program.2         We vacate and

remand.

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*
    Retired Senior Judge assigned to the Superior Court.
1
  We note that, although Appellant’s motion was titled as a motion to be
removed from the ARD program to enable her to have a trial on the merits,
both the court and the parties have treated the claim as a petition to appeal
nunc pro tunc from the summary conviction. (See Trial Court Opinion,
6/08/16, at 1-2; Appellant’s Brief, at 10-11; Commonwealth’s Brief, at 4-5;
N.T. Argument, 4/27/16, at 2-3; Order, 4/28/16). Therefore, although the
original request for relief was titled differently, we will review this matter as
an appeal from the denial of a petition to appeal nunc pro tunc.
2
    See 75 Pa.C.S.A. § 1552, Accelerated Rehabilitative Disposition.
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      On November 6, 2015, the Kutztown University Police cited Appellant

for underage drinking, 18 Pa.C.S.A. § 6308(a). Appellant pleaded not guilty

on November 23, 2015, and a summary trial before the magisterial district

judge was scheduled for January 6, 2016. On that date, the Commonwealth

offered Appellant the opportunity to enter into the accelerated rehabilitative

disposition (ARD) program, see 75 Pa.C.S.A. § 1552, that would allow her to

have the charge dismissed and her record expunged in the future.           As

further explained by the trial court:

      Appellant entered into the ARD program and was permitted to
      take the underage drinking course, on-line, through the 3rd
      Millennium course, instead of in person in Berks County, so she
      would not have to drive to Berks from Bucks County, where she
      resides. On February 16, 2016, Appellant received a letter from
      the Pennsylvania Department of Transportation that her privilege
      to operate a motor vehicle was being suspended for 90 days,
      effective March 22, 2016.        On March 16, 2016, Appellant,
      through new counsel, filed a Motion to be Removed from the
      ARD Program with a request that this matter be remanded to the
      Magisterial District Court for the scheduling of a summary trial.
      The matter was scheduled for April 27, 2016 for argument
      before the [trial court]. On [April 28, 2016], [the court] denied
      the request to appeal nunc pro tunc and have a trial de novo in
      the Court of Common Pleas[, without allowing Appellant the
      opportunity to provide evidence in support of her request for
      relief]. On May 5, 2016, Appellant filed a Notice of Appeal to the
      Superior Court. On May 9, 2016, [the court] ordered Appellant
      to file a concise statement of the errors complained of on appeal,
      which she filed on May 16, 2016. [The court filed an opinion on
      June 8, 2016. See Pa.R.A.P. 1925.]

(Trial Ct. Op., at 1-2).

      Appellant raises the following issues for our review:

      1.    Whether the trial court erred by refusing to permit
      Appellant to present evidence in support of her motion[?]

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        2.     Whether the trial court erred in denying Appellant’s motion
        to be removed from [the] ARD program where the allegations
        filed of record constitute a sufficient basis upon which to grant
        the requested relief[?]

(Appellant’s Brief, at 4) (unnecessary capitalization omitted).3

              . . . [T]he allowance of appeal nunc pro tunc is within the
        sound discretion of the trial court, and our scope of review of a
        decision of whether to permit an appeal nunc pro tunc is limited
        to a determination of whether the trial court has abused its
        discretion or committed an error of law. . . .

               Rule 86(a) of the Pennsylvania Rules of Criminal Procedure
        provides that an appeal from a summary conviction must be filed
        within thirty days from the date of the conviction. Further, . . .
        judicial extensions of time are specifically prohibited by Section
        5504 of the Judicial Code, except to relieve fraud or its
        equivalent.

                A party seeking leave to appeal from a summary
        conviction nunc pro tunc has the burden of demonstrating two
        things: (1) that the delay in filing his appeal was caused by
        extraordinary circumstances involving fraud or a wrongful or
        negligent act of a court official resulting in injury to that party
        and (2) that upon learning of the existence of the grounds relied
        upon for nunc pro tunc relief, he acted promptly to seek such
        relief.

Commonwealth v. Yohe, 641 A.2d 1210, 1211-12 (Pa. Super. 1994)

(citations and quotation marks omitted); (see also Trial Ct. Op., at 2-3).

        Here, Appellant argues, and the trial court admits, that it abused its

discretion when it precluded Appellant from presenting evidence to establish



____________________________________________


3
    We have reordered Appellant’s issues for ease of disposition.



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J-S77023-16


her right to a summary appeal nunc pro tunc. (See Appellant’s Brief, at 13;

Trial Ct. Op., at 3). We agree.

       At argument, counsel maintained that Appellant only entered the ARD

program on January 6, 2016 because she relied on an inaccurate assurance

from the magisterial district judge that she would not lose her license if she

did so. (See N.T. Argument, 4/27/16, at 2-3). However, after the thirty-

day appeal period expired, Appellant received a letter dated February 16,

2016 from the Pennsylvania Department of Transportation informing her

that her license would be suspended for ninety days. (See Appellant’s Brief,

at 5). Appellant filed the instant request for nunc pro tunc relief on March

16, 2016. At argument, counsel requested that the court allow Appellant the

opportunity to introduce evidence and testify in support of her claim. (See

N.T. Argument, at 6). The court denied Appellant’s request. (See id.).

       Based on the foregoing, and as readily admitted by the trial court, we

must conclude that it abused its discretion when it denied Appellant the

opportunity to present any evidence to support her position before it made

its ruling denying her relief. (See Trial Ct. Op., at 3); see Yohe, supra at

1211-12. Hence, Appellant’s first issue merits relief.4 Accordingly, we agree

with the trial court that the proper action is to vacate the order of April 28,

2016, and remand to allow Appellant the opportunity to meet her burden of
____________________________________________


4
  Because of our disposition on Appellant’s first issue, we will not reach her
second one.



                                           -4-
J-S77023-16


establishing the circumstances necessary to merit an appeal nunc pro tunc

and a trial de novo.   (See Trial Ct. Op., at 3); see also Yohe, supra at

1211-12.

     Order vacated. Case remanded. Jurisdiction relinquished.

     Judge Panella joins the Memorandum.

     Judge Olson files a Dissenting Memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2017




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