J-A08012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

BRIAN DAVID SMITH,

                            Appellant                     No. 1644 MDA 2014


              Appeal from the Order Entered September 11, 2014
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0005199-2013


BEFORE: SHOGAN, WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                                 FILED APRIL 17, 2015

       Appellant, Brian David Smith, appeals from the order granting the

Commonwealth’s motion in limine to allow certain testimonial evidence at

trial. For reasons that follow, we quash the appeal.

       Appellant was charged with involuntary deviate sexual intercourse with

a child, aggravated indecent assault, indecent exposure, corruption of

minors, indecent assault and endangering the welfare of children arising

from incidents involving S.D.           The Commonwealth subsequently filed a

notice under Pa.R.E. 404(b), indicating its intent to introduce evidence of

prior crimes, wrongs, or acts:          specifically, evidence of the circumstances

surrounding Appellant’s conviction of indecent assault in 1997.                This
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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evidence would consist of testimony from the victim in that case, K.S.,

concerning assaults committed upon her by Appellant when she was seven

or eight years old. The Commonwealth also filed a motion in limine seeking

a court ruling on the admissibility of this same evidence.

       Following a hearing and submission of briefs, the trial court granted

the Commonwealth’s motion on September 11, 2014, ruling that the

evidence was admissible. On September 30, 2014, Appellant filed a notice

of appeal, a Pa.R.A.P. 1925(b) statement, and a motion to reconsider. The

trial court subsequently denied the motion for reconsideration for lack of

jurisdiction based upon the notice of appeal. The trial court issued an order

dated October 27, 2014, dismissing1 Appellant’s notice of appeal on the

basis that Appellant failed to timely file a Pa.R.A.P. 1925(b) statement, 2 and

alternately, that the appeal was from an interlocutory order.

       By order filed November 7, 2014, this Court ordered Appellant to show

cause as to how this appeal satisfied the requirements of Pa.R.A.P. 313 and

why the appeal should not be quashed as taken from an unappealable order.

Appellant filed a response on November 24, 2014, in which he provided

support for his assertion that the instant order was an appealable collateral
____________________________________________


1
  We note that although the trial court judge stated that he was dismissing
Appellant’s notice of appeal, trial court judges are unable to dismiss a notice
of appeal.
2
  As noted, Appellant filed a Pa.R.A.P. 1925(b) statement simultaneously
with the notice of appeal.



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order pursuant to Pa.R.A.P. 313.     By order filed December 1, 2014, this

Court discharged the show-cause order and referred the issue to the merits

panel for consideration.

      Appellant presents the following issues for our review:

      1. “Did the Honorable Trial Court err in granting a Motion in
      Limine permitting testimony of K.S., concerning the sexual
      assault committed upon her sixteen years ago by the defendant
      in his present jury trial?”

      2. “Will admission of this remote bad act evidence be more
      prejudicial than probative, and ultimately violate the defendant’s
      right to due process?”

      3. “If the bad act evidence is properly admitted, did the
      Honorable Trial Court err by not limiting introduction of K.S.’s
      testimony or by omitting a curative instruction for the jury?”

Appellant’s Brief at 3 (verbatim).

      Before addressing the merits of Appellant’s claims, we must determine

whether this matter is properly before us. “We do not have jurisdiction over

non-appealable orders.” Commonwealth v. Frey, 41 A.3d 605, 609 (Pa.

Super. 2012). An order is appealable if it is: (1) a final order, see Pa.R.A.P.

341-342; (2) an interlocutory order appealable by right or permission, see

42 Pa.C.S. § 702(b); Pa.R.A.P. 311-312, 1311-1312; or (3) a collateral

order, see Pa.R.A.P. 313. See also Frey, 41 A.3d at 609.

      While Appellant does not address the appealability of the order before

us in his appellate brief, he did so in his response to this Court’s show-cause

order. In it, Appellant argued that the order at issue is a collateral order,

and as such, it is properly before us for review. Collateral Order Doctrine As

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Applied To September 11, 2014 Order, 11/24/14, at 1-6.              Appellant

contends that the requisite three prongs of Pa.R.A.P. 313 have been met.

Id. at 3-6.

      Under Pa.R.A.P. 313(a), an appeal may be taken as of right from a

collateral order of an administrative agency or lower court.     Rule 313(b)

permits a party to take an immediate appeal as of right from an otherwise

unappealable interlocutory order if the order meets the three following

requirements:    1) the order must be separable from and collateral to the

main cause of action; 2) the right involved must be too important to be

denied review; and 3) the question presented must be such that if review is

postponed until after final judgment, the claim will be irreparably lost.

Pa.R.A.P. 313(b); Commonwealth v. Mitchell, 72 A.3d 715, 718 (Pa.

Super. 2013). “All three prongs of Rule 313(b) must be met before an order

may be subject to a collateral appeal; otherwise, the appellate court lacks

jurisdiction over the appeal.” Commonwealth v. Harris, 32 A.3d 243, 248

(Pa. 2011).     Additionally, “we construe the collateral order doctrine

narrowly.     In adopting a narrow construction, we endeavor to avoid

piecemeal determinations and the consequent protraction of litigation.”

Commonwealth v. Sabula, 46 A.3d 1287, 1291 (Pa. Super. 2012).

      Specifically, Appellant argues that the first element of separability is

met because “the issue of having a prior victim testify at a defendant’s

current trial is absolutely separate from the merits of the currently charged


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offense.” Collateral Order Doctrine As Applied to September 11, 2014 Order,

11/24/14, at 3. Appellant maintains that whether Appellant is guilty of the

instant charges is separable from the incident involving K.S.’s assault and

her related testimony. Id. Appellant also contends that the second prong,

requiring that the right is too important to be denied review, is met because

the admissibility of this evidence impacts Appellant’s right to due process

and a fair trial. Id. at 4. Appellant asserts that it is critical that a criminal

defendant “have appellate review of an order that may affect the outcome of

a jury trial.” Id. at 5. Appellant maintains that it is “more efficient, and fair

to the accused to resolve these issues prior to the trial.” Id. As to the third

element, Appellant argues that it is met because postponement of review

until final judgment will result in the claim being irreparably lost. Id. at 5.

Once the trial commences and K.S. presents her testimony, the disclosure

cannot be undone and review is moot, according to Appellant. Id. Appellant

further contends that the cost to Appellant to defend himself at trial and on

appeal following entry of a final order is “staggering,” and as such, he should

not have to wait until a final order has been entered to have this matter

addressed. Id. at 5-6.

      In the case sub judice, assuming arguendo that the first two elements

are met, Appellant’s claim fails to satisfy the third element. With regard to

the third element, this Court has explained:

      To satisfy this element, an issue must actually be lost if review is
      postponed. Orders that make a trial inconvenient for one party

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      or introduce potential inefficiencies, including post-trial appeals
      of orders and subsequent retrials, are not considered as
      irreparably lost. An interest or issue must actually disappear
      due to the processes of trial.

Sabula, 46 A.3d at 1293.

      Any alleged inefficiencies with regard to a trial conducted prior to

appellate review of the trial court’s order does not result in Appellant’s claim

being irreparably lost. Appellant will not lose the opportunity to challenge

the admission of testimony; he simply must wait to do so until a judgment

of sentence has been imposed. Further, if Appellant is acquitted, the claim

will be moot. Conversely, should Appellant be convicted, he has the option

of filing a direct appeal and during that appeal, may challenge the admission

of this testimony. If he prevails on that challenge, his remedy would be a

new trial and any prejudice resulting from introduction of this testimony at

the previous trial will no longer exist. As noted, the fact that inefficiencies

may occur does not result in a claim being irreparably lost and, therefore,

does not satisfy the third element of the collateral order test. Sabula, 46

A.3d at 1293.

      Because Appellant has failed to satisfy the third prong of the collateral

order test, we cannot agree with Appellant’s assertion that this order is an

appealable collateral order.   Harris, 32 A.3d at 248 (stating that all three

prongs of Rule 313(b) must be met before an order may be subject to a

collateral appeal).   Therefore, we cannot reach the merits of Appellant’s

issues because this is an interlocutory appeal and we lack jurisdiction. Id.

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     Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2015




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