J-S28012-17
                             2017 PA Super 223
COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Respondent

                   v.

TIMOTHY ALLEN PARSONS,

                        Petitioner                 No. 1016 WDA 2016


               Petition for Review of the Order June 20, 2016
           In the Court of Common Pleas of Washington County
           Criminal Division at No(s): CP-63-CR-0000448-2016

BEFORE: OLSON, MOULTON and STRASSBURGER,* JJ.

OPINION BY OLSON, J.:                                   FILED JULY 14, 2017

     Timothy Allen Parsons (“Parsons”) purports to appeal pro se from the

order, entered on June 20, 2016, which modified the conditions of his bail by

requiring him to complete a Court Reporting Network (“CRN”) evaluation.1

We hold that Parsons’ challenge is, in part, properly construed as a petition

for review pursuant to Pennsylvania Rule of Appellate Procedure 1762(b)(2),

which permits appellate review of bail orders pursuant to Chapter 15 of the

Pennsylvania Rules of Appellate Procedure.     Pursuant to our authority to

review bail orders under Rule 1762(b)(2), we hold that 75 Pa.C.S.A. § 3816

does not require that every defendant charged with driving under the

1
  A CRN evaluation is “[a] uniform prescreening evaluation procedure for all
[driving under the influence (“DUI”)] offenders to aid and support clinical
treatment recommendations offered to the judiciary, prior to sentencing.”
67 Pa.Code § 94.2 (emphasis added); see 75 Pa.C.S.A. § 3816 (emphasis
added) (CRN evaluations are used “to assist the court in determining what
sentencing, probation[,] or conditions of Accelerated Rehabilitative
Disposition would benefit the person or the public.”).



* Retired Senior Judge assigned to the Superior Court
J-S28012-17


influence (“DUI”) undergo a CRN evaluation as a condition of bail.           We

therefore hold that the trial court erred by ordering Parsons to undergo a

CRN evaluation as a condition of his bail.     We also conclude that we lack

authority to review Parsons’ challenge to the trial court’s jurisdiction over his

criminal case. Accordingly, we quash the petition for review in part, grant

the petition for review in part, vacate the trial court’s June 20, 2016 order,

and remand for further proceedings consistent with this opinion.

      The factual background and procedural history of this case are as

follows.   At approximately 2:00 a.m. on January 22, 2016, Officer Dustin

DeVault stopped Parsons’ vehicle while he was driving on Dry Run Road.

Officer DeVault suspected that Parsons was driving under the influence of

alcohol and arrested him.     Police also found a small amount of marijuana

and drug paraphernalia.     After releasing Parsons, police charged him via

criminal complaint with a variety of offenses arising from the traffic stop.

Parsons appeared at the courthouse on the date of his preliminary hearing;

however, he failed to stay for the hearing. As such, a bench warrant was

issued for his arrest.2   See Pa.R.Crim.P. 543(D)(3)(b).       On February 24,

2016, Parsons filed a petition to vacate the bench warrant. The petition was

granted that same day and Parsons was released on recognizance, a type of




2
  Pursuant to Pennsylvania Rule of Criminal Procedure 543(D)(3)(a), the
preliminary hearing was conducted despite Parsons’ failure to appear.



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bail that imposes no conditions beyond those required by Pennsylvania Rule

of Criminal Procedure 526(A). See Pa.R.Crim.P. 524(C)(1).

        On April 15, 2016, the Commonwealth charged Parsons via criminal

information with DUI – general impairment,3 resisting arrest,4 possession of

a small amount of marijuana,5 possession of drug paraphernalia,6 and four

summary traffic offenses. On June 16, 2016, Parsons appeared before the

trial court for what the trial court described as “plea court”.    Trial Court

Opinion, 8/30/16, at 2.         Although the record is unclear as to whether

Parsons intended to plead guilty at that hearing, when the trial court learned

that Parsons had not undergone a CRN evaluation it did not give him that

opportunity. Instead, the trial court modified the conditions of Parsons’ bail

by requiring him to complete a CRN evaluation. Parsons filed a motion to

reconsider, which the trial court denied.7

        On July 12, 2016, Parsons filed a purported notice of appeal. On July

21, 2016, the trial court ordered Parsons to file a concise statement of errors


3
    75 Pa.C.S.A. § 3802(a)(1).
4
    18 Pa.C.S.A. § 5104.
5
    35 P.S. § 780-113(a)(31)(i).
6
    35 P.S. § 780-113(a)(32).
7
  The order denying the motion for reconsideration is included in the certified
record; however, the order does not appear on the trial court docket. We
construe this motion for reconsideration as the application to the trial court
required under Pennsylvania Rule of Appellate Procedure 1762(b)(1).



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complained of on appeal (“concise statement”). See Pa.R.A.P. 1925(b). On

August 8, 2016, Parsons filed his concise statement. On August 30, 2016,

the trial court issued its Rule 1925(a) opinion.    On August 25, 2016, this

Court issued a rule to show cause why Parsons’ notice of appeal should not

be quashed. On September 6, 2016, Parsons filed a response to the rule to

show cause. On December 5, 2016, this Court discharged the rule to show

cause and deferred the jurisdictional issue to merits review.

      Parsons presents two issues for our review:

      1. [Did the trial court have jurisdiction over this criminal case?

      2. Did the trial court err in requiring Parsons to undergo a CRN
         evaluation?]

Parsons’ Brief at 3.8

      Preliminarily, we must determine whether we have jurisdiction in this

case. The Commonwealth argues that we lack jurisdiction because Parsons

appealed from an interlocutory order.       This argument misapprehends the

rules of appellate procedure.

      Pennsylvania Rule of Appellate Procedure 1762(b)(2) provides that

“[a]n order relating to bail shall be subject to review pursuant to Chapter

15” of the Pennsylvania Rules of Appellate Procedure. Pa.R.A.P. 1762(b)(2).

When a defendant files a notice of appeal from an order relating to bail,

8
  Parsons raises other issues in the argument section of his brief; however,
those issues are waived as they cannot be decided on the basis of the
certified record. See Pa.R.A.P. 1513(d)(5).




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instead of a petition for review, this Court “will regard the appeal as a

[p]etition for review[.]” Commonwealth v. Jones, 899 A.2d 353, 354 n.1

(Pa. Super. 2006).9

      The trial court’s June 20, 2016 order relates to bail.     The trial court

modified the conditions of Parsons’ bail by requiring him to complete a CRN

evaluation.   As such, we hold that we must construe Parsons’ notice of

appeal as a petition for review under Rule 1762(b)(2) and we have

jurisdiction to review his challenge to the merits of the trial court’s order. As

we construe Parsons’ notice of appeal as a petition for review under Rule

1762(b)(2), we lack jurisdiction over Parsons’ claim that the trial court lacks

jurisdiction over his criminal case. Such a claim is outside the scope of a

petition for review filed pursuant to Rule 1762(b)(2), which affirms appellate

review of bail-related orders in the absence of a pending appeal. Instead,

Parsons’ challenge to the trial court’s jurisdiction must be raised in a direct

appeal from any judgment of sentence that may be imposed in this case or


9
  The Commonwealth relies upon Commonwealth v. Colleran, 469 A.2d
1130 (Pa. Super. 1983), in support of its argument that Parsons’ petition for
review should be quashed. Colleran, however, supports our determination
that we have jurisdiction over this petition. In Colleran, this Court stated
that the defendant should have filed a petition for review pursuant to Rule
1762(b) instead of a notice of appeal. Id. at 1131. As such, this Court
quashed the defendant’s notice of appeal. Id. In 2004, Rule 1762(b) was
amended. See 34 Pa.B. 3870 (July 24, 2004). After that amendment went
into effect, this Court in Jones held that, consistent with Pennsylvania Rule
of Appellate Procedure 1503, we must treat an improperly filed notice of
appeal as a petition for review. Jones, 899 A.2d at 354 n.1.




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via the procedure set forth in Pennsylvania Rule of Appellate Procedure

1311.10

      The Commonwealth also argues that Parsons’ petition is untimely.

This argument is without merit. The trial court’s order was entered on June

20, 2016.11      Pursuant to Pennsylvania Rule of Appellate Procedure

1512(a)(1), Parsons had 30 days to petition for review of that order.

Parsons filed his notice of appeal, which we treat as a petition for review, on

July 12, 2016 – 22 days after entry of the order.          Accordingly, Parsons’

petition for review was timely and we have jurisdiction over the portion of

the petition challenging the trial court’s modification of Parsons’ bail.

      Having determined that we have jurisdiction over Parsons’ petition for

review with respect to his challenge to the trial court’s bail modification

order, we turn to the merits of that issue.       As this issue requires us to

interpret a statute and a rule of criminal procedure, our standard of review is

de novo and our scope of review is plenary. See Grimm v. Universal Med.

Servs., Inc., 156 A.3d 1282, 1286 (Pa. Super. 2017) (citation omitted)

(interpretation of a statute subject to de novo review); Commonwealth v.




10
   Rule 1311 provides a mechanism by which a party may seek to appeal an
interlocutory order.
11
  Although the order was dated (and filed with the clerk of courts) on June
16, 2016, it was not entered on the docket until June 20, 2016. The date
the order is entered on the docket is the date the petition period begins to
run. See Pa.R.A.P. 301(a)(1).



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Libengood, 152 A.3d 1057, 1059 (Pa. Super. 2016) (citation omitted)

(interpretation of rule of criminal procedure subject to de novo review).

      In its Rule 1925(a) opinion, the trial court states that it modified

Parsons’ bail conditions to require a CRN evaluation pursuant to 75

Pa.C.S.A. § 3816.       In its brief before this Court, the Commonwealth also

argues that a CRN evaluation was required pursuant to section 3816.

      “Interpretation of a statute is guided by the polestar principles set

forth in the Statutory Construction Act, 1 Pa.C.S.[A.] § 1501 et seq.”

Commonwealth v. Vandyke, 157 A.3d 535, 538 (Pa. Super. 2017)

(internal   quotation    marks   and   citation   omitted).     “Our   paramount

interpretative task is to give effect to the intent of our General Assembly in

enacting the particular legislation under review.”            Commonwealth v.

Walls, 144 A.3d 926, 932 (Pa. Super. 2016), appeal denied, 2017 WL

721824 (Pa. Feb. 23, 2017) (citation omitted).         “[T]he best indication of

legislative intent is the plain language of a statute.           Furthermore, in

construing statutory language, words and phrases shall be construed

according to rules of grammar and according to their common and approved

usage.” Tillery v. Children’s Hosp. of Phila., 156 A.3d 1233, 1244 (Pa.

Super. 2017) (internal alteration, quotation marks, and citation omitted).

      Section 3816 provides, in relevant part, that:

      In addition to any other requirements of the court, every person
      convicted of a violation of section 3802 (relating to driving
      under influence of alcohol or controlled substance) and every
      person offered Accelerated Rehabilitative Disposition as a


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      result of a charge of a violation of section 3802 shall, prior to
      sentencing or receiving Accelerated Rehabilitative Disposition or
      other preliminary disposition, be evaluated using Court Reporting
      Network instruments issued by the department and any other
      additional evaluation techniques deemed appropriate by the
      court to determine the extent of the person’s involvement with
      alcohol or controlled substances and to assist the court in
      determining what sentencing, probation or conditions of
      Accelerated Rehabilitative Disposition would benefit the person
      or the public.

75 Pa.C.S.A. § 3816(a) (emphasis added).

      The plain language of section 3816(a) only requires that an individual

undergo a CRN evaluation after being convicted of DUI or offered

Accelerated Rehabilitative Disposition.     Section 3816(a) thus presupposes

the entry of a guilty plea, an offer of Accelerated Rehabilitative Disposition,

or other form of conviction.    It does not require that a defendant merely

charged with DUI undergo a CRN evaluation. Therefore, the trial court’s and

Commonwealth’s argument that Parsons was required to undergo a CRN

evaluation pursuant to section 3816(a) is without merit.

      Having determined that the trial court’s statutory reasoning for

requiring Parsons to undergo a CRN evaluation was incorrect, we turn to the

trial court’s and Commonwealth’s alternative argument that requiring

Parsons to undergo a CRN evaluation was a valid imposition of a

nonmonetary bail condition.     “To the extent practicable, [the Pennsylvania

Rules of Criminal Procedure] shall be construed in consonance with the rules

of statutory construction.”     Pa.R.Crim.P. 101(C).       To that end, when

interpreting a rule of criminal procedure, our goal is to ascertain the intent of


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our Supreme Court.       See Commonwealth v. Baker, 690 A.2d 164, 167

(Pa. 1997). “[T]he best indication of said intent is the plain language of a

rule.” Commonwealth v. Williams, 125 A.3d 425, 428 (Pa. Super. 2015)

(internal alterations and citation omitted).

      Imposition of nonmonetary bail conditions is governed by Pennsylvania

Rule of Criminal Procedure 527. That rule provides that:

      When the bail authority determines that, in addition to the
      conditions of the bail bond required in every case pursuant to
      Rule 526(A), nonmonetary conditions of release on bail are
      necessary, the categories of nonmonetary conditions that the
      bail authority may impose are:

      (1) reporting requirements;

      (2) restrictions on the defendant’s travel; and/or

      (3) any other appropriate conditions designed to ensure the
      defendant’s appearance and compliance with the conditions of
      the bail bond.

Pa.R.Crim.P. 527(A).12




12
  Rule 526(A) sets forth conditions of the bail bond that are required in
every case. This rule provides:

      (A) In every case in which a defendant is released on bail, the
      conditions of the bail bond shall be that the defendant will:

      (1) appear at all times required until full and final disposition of
      the case;

      (2) obey all further orders of the bail authority;

      (3) give written notice to the bail authority, the clerk of courts,
      the district attorney, and the court bail agency or other
(Footnote Continued Next Page)


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      The language of Rule 527(A) is clear and free of ambiguity. Under the

cannon of expressio unius est exclusio alterius, “where certain things are

designated in a [rule], all omissions should be understood as exclusions.”

Commonwealth v. Richards, 128 A.3d 786, 789 (Pa. Super. 2015), appeal

denied, 145 A.3d 164 (Pa. 2016). In this instance, Rule 527(A) specifically

states that nonmonetary bail conditions not relating to reporting or travel

can be imposed “to ensure the defendant’s appearance and compliance with

the conditions of the bail bond.” Pa.R.Crim.P. 527(A)(3). Rule 527(A) does

not state that nonmonetary bail conditions may be imposed for any other

reason.

      The Commonwealth relies upon the comment to Rule 527 which “sets

forth a few examples of conditions that might be imposed to address specific

situations.”   Pa.R.Crim.P. 527 cmt.             The six examples in the comment,

however, all address nonmonetary bail conditions meant to ensure the

defendant appears for future hearings and/or does not violate one of the

                       _______________________
(Footnote Continued)
      designated court bail officer, of any change of address within 48
      hours of the date of the change;

      (4) neither do, nor cause to be done, nor permit to be done on
      his or her behalf, any act proscribed by Section 4952 of the
      Crimes Code (relating to intimidation of witnesses or victims) or
      by Section 4953 (relating to retaliation against witnesses or
      victims); 18 Pa.C.S. §§ 4952, 4953; and

      (5) refrain from criminal activity.

Pa.R.Crim.P. 526(A).



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standard bail conditions set forth in Pennsylvania Rule of Criminal Procedure

526.13   None of the examples relates to situations in which nonmonetary

conditions may be imposed for another reason, such as efficiency or ease

with which a defendant’s guilty plea may be accepted or a suitable sentence

imposed. Thus, Rule 527(A) prohibits such nonmonetary bail conditions.

     Moreover, even if Rule 527(A) were ambiguous, we would conclude

that it prohibits ordering a defendant to undergo a CRN evaluation as a

condition of his or her bail. When the words of a rule are ambiguous, we

may look to the object to be attained in ascertaining its meaning.    See 1

Pa.C.S.A. § 1921(c)(4); Pa.R.Crim.P. 101(C). In this case, the object to be

obtained by imposing nonmonetary bail conditions is to ensure that the

defendant appears for future court hearings and that the defendant complies

with the mandatory bail conditions set forth in Rule 526. See Pa.R.Crim.P.

527; cf. Commonwealth v. Sloan, 907 A.2d 460, 468 (Pa. 2006) (Bail

“may be conditioned on terms that not only give adequate assurance that

13
  The one example in the comment to which the Commonwealth points is
example (2) which provides: “When, for example, the defendant is known to
have an alcohol or a drug problem, the bail authority could require that the
defendant submit to drug or alcohol testing. The bail authority could also
require that the defendant refrain from excessive use of alcoholic beverages
or from any use of illegal drugs.” Pa.R.Crim.P. 527 cmt. Clearly, directing
that defendant submit to alcohol or drug testing to ensure that the
defendant is sober while he or she is out on bail serves the dual purpose of
ensuring the defendant is able to appear for court proceedings and is in
compliance with the general bail conditions, including that he or she is
refraining from criminal activity. There is, however, a difference between
requiring that a defendant undergo random alcohol and drug screenings and
requiring that a defendant undergo a thorough and detailed CRN evaluation.



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the accused will appear for trial, but also assures that victims, witnesses,

and the community will be protected.”).       This object is not obtained by

imposing a bail condition requiring a defendant to undergo a CRN evaluation.

As section 3816 makes clear, a CRN evaluation contemplates a thorough and

professional assessment to assist our trial courts in identifying the

sentencing options that would best benefit the defendant and the public.

See 75 Pa.C.S.A. § 3816. Accordingly, we hold that the trial court lacked

the authority under Rule 527 to require Parsons to undergo a CRN evaluation

as a nonmonetary bail condition.

      In its Rule 1925(a) opinion the trial court notes that the standard

practice in Washington County is to order defendants to undergo CRN

evaluations prior to adjudication of guilt.    This practice stems from our

Supreme Court’s decision in Commonwealth v. Taylor, 104 A.3d 479 (Pa.

2014). In Taylor, our Supreme Court held that a CRN evaluation is required

before a trial court may sentence a defendant convicted of DUI. Id. at 490-

493. Thus, according to the trial court, the practice of requiring defendants

to undergo a CRN evaluation prior to an adjudication of guilt permits a trial

court to sentence a defendant immediately after he or she is adjudicated

guilty.

      This increase in judicial efficiency is laudable; however, judicial

efficiency cannot trump legislative intent. Our legislature has stated that a

CRN evaluation is required if a defendant has been convicted of DUI or is



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offered Accelerated Rehabilitative Disposition. It has not stated that a CRN

evaluation shall be done on every person charged with a DUI offense. If a

defendant decides that he or she prefers to be adjudicated guilty prior to

undergoing a CRN evaluation, he or she has that right. Trial judges cannot

force a defendant to undergo a CRN evaluation prior to an adjudication of

guilt under the guise of a bail condition. Such a bail condition violates the

plain language of the rules of criminal procedure. Therefore, although our

decision today may result in a small decrease in the overall efficiency of the

court system in Washington County (and possibly other counties), we

believe that most defendants will choose to undergo a CRN evaluation prior

to an adjudication of guilt in order to reduce the number of court

appearances.      Nothing in our decision today should be construed as

preventing this voluntary practice.

        In sum, we hold that Parsons’ challenge to the order requiring him to

complete a CRN evaluation is properly construed as a petition for review

pursuant to Pennsylvania Rule of Appellate Procedure 1762(b)(2).          Thus,

although we lack jurisdiction to consider Parsons’ challenge to the trial

court’s jurisdiction over his criminal case, we do have jurisdiction over the

portion of Parsons’ petition challenging the trial court’s order modifying his

bail.   We hold that section 3816 does not require that a CRN evaluation

occur prior to entry of a guilty plea in a DUI case. We also hold that the trial

court erred by requiring Parsons to undergo a CRN evaluation as a condition



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of his bail. Accordingly, we quash the petition for review in part, grant the

petition for review in part, vacate the trial court’s June 20, 2016 order, and

remand for further proceedings consistent with this opinion.

      Petition for review quashed in part and granted in part.          Order

vacated. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/14/2017




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