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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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(s): CP-06-MD-0000441-2016


BEFORE: PANELLA, OLSON and PLATT,* JJ.

DISSENTING MEMORANDUM BY OLSON, J.:                FILED FEBRUARY 24, 2017

        Appellant, Jessica Taylor Capps, appeals from the order entered on

April 28, 2016, denying Appellant’s “Motion to Be Removed from ARD [1]

Program.” I believe that the order at issue is not a final order, therefore,

this is an interlocutory appeal that must be quashed.        Thus, I respectfully

dissent.

        The trial court ably summarized the underlying facts of this appeal. I

quote, in part, from the trial court’s opinion:

           On October 31, 2015, the Kutztown University Police . . .
           encountered Appellant and suspected her of underage
           drinking. On or about November 6, 2015, Appellant was
           cited for violating 18 Pa.C.S.A. § 6308(a)[, which prohibits
           the purchase or consumption of alcohol by a minor]. On
____________________________________________


1
    “ARD” stands for “accelerated rehabilitative disposition.”




*Retired Senior Judge assigned to the Superior Court.
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         November 23, 2015, Appellant [pleaded] not guilty before
         [the magisterial district judge]. Her summary trial was set
         for January 6, 2016. . . .

         [On January 6, 2016, the district judge placed Appellant
         into a pre-adjudication disposition program (hereinafter
         “pre-adjudication disposition program” or “ARD program”)].
         Appellant entered into the [] program and was permitted to
         take [an] 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.[2] . . .
____________________________________________


2
   18 Pa.C.S.A. § 6308(c)(2) declares: “[t]he use of a preadjudication
disposition shall be considered a first or subsequent offense, whichever is
applicable, for the purpose of further adjudication under this section or
under section 6310.4 [(relating to “restriction of operating privileges”)].” 18
Pa.C.S.A. § 6308(c)(2). Section 6310.4 specifically declares:

         (a) General rule.--Whenever a person is convicted or is
         adjudicated delinquent or is admitted to any preadjudication
         program for a violation of . . . [18 Pa.C.S.A. §] 6308
         (relating to purchase, consumption, possession or
         transportation of liquor or malt or brewed beverages) . . .
         the court, including a court not of record if it is exercising
         jurisdiction pursuant to 42 [Pa.C.S.A.] § 1515(a) (relating
         to jurisdiction and venue), shall order the operating
         privilege of the person suspended. A copy of the order shall
         be transmitted to the Department of Transportation.

         (b) Duration of suspension.--When the department
         suspends the operating privilege of a person under
         subsection (a), the duration of the suspension shall be as
         follows:

              (1) For a first offense, a period of 90 days from the date
              of suspension. . . .

(Footnote Continued Next Page)


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Trial Court Opinion, 6/8/16, at 1.

       On March 16, 2016, Appellant filed a “Motion to Be Removed from ARD

Program.” As Appellant alleged, during her hearing before the magisterial

district judge, the district judge “misinformed” Appellant as to the collateral

consequences of her entry into the pre-adjudication disposition program.

Appellant’s “Motion to Be Removed from ARD Program,” 3/16/16, at 4.

Specifically, Appellant averred:

         [during the hearing and p]rior to entering the program[,] . .
         . [Appellant] informed the magisterial district judge that she
         required her driver’s license as she lived in Bucks County
         and would be otherwise unable to attend classes [at Temple
         University, where she attends college. In response to her
         statement,] the magisterial district judge replied “Today is
         your lucky day.” [Appellant] reasonably took this response
         to mean that her privilege to operate motor vehicles would
         not be suspended so she agreed to enter the [pre-
         adjudication disposition] program.

Id. at 2 (some internal capitalization omitted).

       Appellant   claimed       that   she      only   entered   the   pre-adjudication

disposition program because of the magisterial district judge’s assurance

that her motor vehicle operating privileges would not be suspended. Id. at

3-4.    Further, Appellant claimed, had she known that her operating

privileges would be suspended upon entry into the pre-adjudication

disposition program, she would not have entered the program and would

have, instead, proceeded to trial. Id. Appellant also claimed that she filed
                       _______________________
(Footnote Continued)

18 Pa.C.S.A. § 6310.4.



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her “Motion to Be Removed from ARD Program” soon after receiving notice

that her motor vehicle operating privileges were being suspended and that

any delay in filing the motion was the result of a “breakdown in the

operations of [the magisterial district] court.” Id. Appellant requested that

the trial court “grant her motion to be removed from [the pre-adjudication

disposition] program and [remand the matter] to the magisterial district

court for a trial de novo.” Id. at 5.

      On March 24, 2016, the            trial court issued a rule   upon the

Commonwealth to show cause as to why Appellant’s motion should not be

granted.   The trial court ordered that the rule was returnable on April 27,

2016. Trial Court Order, 3/24/16, at 1.

      On April 27, 2016, the parties appeared before the trial court and the

trial court heard argument on Appellant’s motion. However, the trial court

refused Appellant’s request to testify. N.T. Oral Argument, 4/27/16, at 5-6.

      The trial court denied Appellant’s motion on April 28, 2016 and

Appellant filed a timely notice of appeal.

      As we have explained, prior to reaching the merits of any appeal, this

Court must “first ascertain whether the [order appealed from] is properly

appealable.” Commonwealth v. Borrero, 692 A.2d 158, 159 (Pa. Super.

1997).     Indeed, since “the question of appealability implicates the

jurisdiction of this Court[, the issue] may be raised by [this] Court sua

sponte.” Commonwealth v. Baio, 898 A.2d 1095, 1098 (Pa. Super. 2006).




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      In general, this Court’s jurisdiction “extends only to review of final

orders.” Rae v. Pa. Funeral Dir’s Ass’n, 977 A.2d 1121, 1124-1125 (Pa.

2009); 42 Pa.C.S.A. § 742; Pa.R.A.P. 341(a). A final order is defined as any

order that: “(1) disposes of all claims and of all parties; [] (2) is explicitly

defined as a final order by statute; or (3) is entered as a final order pursuant

to [Pennsylvania Rule of Appellate Procedure 341(c)].”       Pa.R.A.P. 341(b).

With respect to criminal cases, the general rule “is that a defendant may

appeal only from a final judgment of sentence, and an appeal from any prior

order or judgment will be quashed.” Commonwealth v. Kurilla, 570 A.2d

1073, 1073 (Pa. Super. 1990). The purpose of this rule is to “prevent undue

delay and avoid the disruption of criminal cases by piecemeal appellate

review.” Commonwealth v. Scott, 578 A.2d 933, 941 (Pa. Super. 1990)

(internal quotations, citations, and corrections omitted).

      In this case, Appellant was not convicted of any crime and the trial

court did not impose a judgment of sentence.           Rather, Appellant was

charged with underage drinking and the magisterial district judge admitted

Appellant to a pre-adjudication disposition program pursuant to 18

Pa.C.S.A. § 6308(c) and 42 Pa.C.S.A. § 1520.

      Section 6308(c), which is a subsection entitled “preadjudication

disposition,” declares:

        (1) When a person is charged with violating [18 Pa.C.S.A.
        § 6308(a) (relating to underage drinking)], the magisterial
        district judge may admit the offender to the adjudication
        alternative as authorized in 42 Pa.C.S.A. § 1520 (relating to
        adjudication    alternative   program)     or   any     other

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        preadjudication disposition if the offender has not previously
        received a preadjudication disposition for violating [Section
        6308(a)].

        (2) The use of a preadjudication disposition shall be
        considered a first or subsequent offense, whichever is
        applicable, for the purpose of further adjudication under this
        section or under section 6310.4 [(relating to “restriction of
        operating privileges”)].

18 Pa.C.S.A. § 6308(c).

     Section 1520 of the Judicial Code, entitled “adjudication alternative

program,” declares in relevant part:

        (a) General rule.-- . . . the magisterial district judge may,
        upon hearing the facts of a case, admit to an appropriate
        adjudication alternative authorized by this section persons
        charged with summary offenses. The defendant shall not
        be required to plead guilty to be accepted by the magisterial
        district judge into the program. Acceptance of participation
        in an alternative authorized by this section shall be
        considered a first conviction for the purpose of computing
        whether a subsequent conviction of an offense shall be
        considered a second or subsequent conviction.

        (b) Public service programs and other adjudication
        alternatives.--A magisterial district judge may, in lieu of
        making a disposition, place an offender in an appropriate
        program in which a public service or charitable agency or
        organization or political subdivision agrees to assume
        supervisory responsibility for the offender. The program in
        general shall be approved by the court of common pleas
        having supervision over that magisterial district. This
        program may include work, counseling, public service, job
        training, education or other appropriate community service
        or self-improvement. The placement authorized by the
        magisterial district judge shall be appropriate to the offense
        charged and in the best interests of the community and the
        offender. . . .

        (c) Completion of program.--The magisterial district
        judge shall provide written notice to the public service or


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          charitable agency or organization or political subdivision of
          the placement of the offender. Upon notification, the public
          service or charitable agency or organization or political
          subdivision shall, as a condition to agreeing to accept
          responsibility for supervision of the offender, make periodic
          reports on the fulfillment of the conditions and a final report
          upon the completion of the appropriate adjudication
          alternative as required by the supervising magisterial
          district judge. The magisterial district judge shall dismiss
          the charges and shall relieve the offender of the obligation
          to pay any fine or serve any sentence of imprisonment upon
          the successful completion of the program.

          (d) Refusal to accept or complete program.--If the
          offender refuses to accept the conditions required by the
          magisterial district judge or fails to complete the program
          without good cause or violates any condition of the program
          without good cause, the magisterial district judge shall
          proceed on the charges as provided by law.

42 Pa.C.S.A. § 1520.

      Therefore, in accordance with Section 1520:            Appellant was not

required to (and Appellant did not) plead guilty in order to be “accepted by

the magisterial district judge into the program;” the magisterial district

judge placed Appellant in the pre-adjudication disposition program “in lieu of

making a disposition;” if Appellant chooses to complete the program, “[t]he

magisterial district judge shall dismiss the charges” against Appellant; and, if

Appellant either “refuses to accept the conditions required by the magisterial

district judge or fails to complete the program,” “the magisterial district

judge shall proceed on the charges as provided by law.”            42 Pa.C.S.A.

§ 1520.

      Given the unique nature of an order that accepts a defendant into a

pre-adjudication disposition program, this Court has held that “[a]cceptance

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of ARD is an interlocutory matter and consequently is not appealable.”

Commonwealth v. Getz, 598 A.2d 1309, 1309 (Pa. Super. 1991). As we

explained:

       The general rule in Pennsylvania is that a defendant may
       appeal only from a final judgment of sentence and an
       appeal from any prior order will be quashed as
       interlocutory. An ARD determination provides no exception
       to the general rule.    Rather, it constitutes a non-final
       proceeding in which the resolution of the criminal
       prosecution is merely held in abeyance. Acceptance of ARD
       is an interlocutory matter and consequently is not
       appealable. . . .

       [P]roceeding under the ARD program is not a right. [An
       a]ppellant’s remedy, if [she] is dissatisfied with the
       terms and conditions of the ARD program, is to notify
       the trial court and the [district attorney] regarding
       [her] non-acceptance. . . . [T]he trial court may then
       enter     a   non-appealable      interlocutory   order
       terminating [the] appellant’s participation in the
       program. [The a]ppellant's case would then proceed
       to the trial which has been postponed during the term
       of [the] appellant's participation in the ARD program.

Id. at 1309 (internal citations omitted) (emphasis added); see also

Commonwealth v. Feagley, 538 A.2d 895 (Pa. Super. 1988) (quashing

appeal from an order that accepted the appellant into an ARD program,

where the appellant wished to challenge the “statutorily mandated license

suspension of [12] months,” because an order accepting an individual into

an ARD program is interlocutory) (superseded by rule on other grounds by

Commonwealth v. Coleman, 854 A.2d 978 (Pa. Super. 2004)); see also

Commonwealth v. Wrona, 83 A.3d 1057 (Pa. Super. 2013) (unpublished

memorandum) at 1-5 (quashing appeal from the trial court’s order that

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denied the appellant’s “motion to withdraw from the court’s [ARD] program”

because the order is interlocutory and unappealable).

      In accordance the above precedent, I must conclude that the trial

court’s order denying Appellant’s “Motion to Be Removed from ARD

Program” is not a final order, as “[a]cceptance of ARD is an interlocutory

matter.”     Getz, 598 A.2d at 1309.       Therefore, Appellant is appealing an

interlocutory determination of the trial court.

      Further,     while   interlocutory   orders   are   appealable   in    certain

circumstances, none of those circumstances apply to the case at bar. Our

Supreme Court has explained:

           in addition to an appeal from final orders of the Court of
           Common Pleas, our rules provide the Superior Court with
           jurisdiction in the following situations: interlocutory appeals
           that may be taken as of right, Pa.R.A.P. 311; interlocutory
           appeals that may be taken by permission, Pa.R.A.P. [312];
           appeals that may be taken from a collateral order, Pa.R.A.P.
           313; and appeals that may be taken from certain
           distribution orders by the Orphans’ Court Division, Pa.R.A.P.
           342.

Commonwealth v. Garcia, 43 A.3d 470, 478 n.7 (Pa. 2012) (internal

quotations omitted), quoting McCutcheon v. Phila. Elec. Co., 788 A.2d

345, 349 n.6 (Pa. 2002).

      Here, the challenged order is not defined as appealable as of right (per

Pa.R.A.P. 311), Appellant did not ask for or receive permission to appeal the

interlocutory order (per Pa.R.A.P. 312), and Appellant has not provided this

Court with any argument as to whether – or how – the order could satisfy



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the collateral order doctrine (per Pa.R.A.P. 313). Thus, since we do not have

jurisdiction, I would quash Appellant’s appeal.3 See 42 Pa.C.S.A. § 742.




____________________________________________


3
  Throughout the learned Majority’s memorandum, the Majority refers to
Appellant’s “conviction” – and the Majority thus utilizes the standard,
procedure, and requirements for “[a] party seeking leave to appeal from a
summary conviction nunc pro tunc.” See Majority Memorandum at 3,
quoting Commonwealth v. Yohe, 641 A.2d 1210, 1211-1212 (Pa. Super.
1994); see also Majority Memorandum at 1-5. Respectfully, this is where I
believe that the Majority errs. To be sure, Appellant was not convicted
of anything. Instead, as was explained above, Appellant was charged with
underage drinking and the magisterial district judge admitted Appellant to
a pre-adjudication disposition program pursuant to 18 Pa.C.S.A.
§ 6308(c) and 42 Pa.C.S.A. § 1520.



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