Opinion
743 EDA 2021 J-S24025-22
11-18-2022
COMMONWEALTH OF PENNSYLVANIA Appellant v. ARLET URRUTIA
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered March 15, 2021 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0000997-2020
BEFORE: PANELLA, P.J., LAZARUS, J., and PELLEGRINI, J.[*]
JUDGMENT ORDER
LAZARUS, J.
The Commonwealth of Pennsylvania appeals from the order, entered in the Court of Common Pleas of Delaware County, denying its motion in limine seeking permission to present testimonial evidence with respect to defendant Arlet Urrutia's 2011 driving under the influence (DUI) charge in Philadelphia County. After careful review, we quash the appeal.
Urrutia entered into the Accelerated Rehabilitative Disposition (ARD) Program for his 2011 DUI charge and successfully completed the program. On October 5, 2019, Urrutia was charged with the instant DUI offense. On February 5, 2020, the Commonwealth filed a motion in limine seeking to introduce evidence of the 2011 offense. The trial court denied the motion in accordance with Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020), which held unconstitutional that portion of the DUI statute equating prior acceptance of ARD with a prior conviction for purposes of imposing a mandatory minimum sentence for a second or subsequent DUI offense.
By order dated August 17, 2022, this panel stayed disposition of the Commonwealth's appeal pending this Court's en banc decision in Commonwealth v. Moroz, ___ A.3d ___, 2022 PA Super 169 (Pa. Super. filed Oct. 4, 2022) (en banc). In Moroz, our Court overruled Chichkin, holding that the portion of section 3806(a) that equates prior acceptance of ARD to a prior conviction for purposes of imposing a section 3804 mandatory minimum sentence passes constitutional muster.
Consequently, the Commonwealth is no longer barred from presenting evidence of a prior ARD at a sentencing hearing. Therefore, the Commonwealth can no longer demonstrate that its prosecution has been terminated or substantially handicapped, as required by Pa.R.A.P. 311(d).Accordingly, we lack jurisdiction to entertain this interlocutory appeal, and we quash.
We note that this case has a unique procedural posture due to the pre-trial nature of the underlying order denying the motion in limine. When the Commonwealth's appeal was filed, Chichkin was still controlling, and, thus, the Commonwealth's case was substantially handicapped by the trial court's denial of its motion in limine because trial was the only time the Commonwealth could present evidence of Urrutia's 2011 DUI and ARD acceptance. See Chichkin, supra. However, during the pendency of this appeal, Chichkin was overruled by Moroz and now the Commonwealth is expressly permitted to present a prior ARD at the sentencing hearing to enhance mandatory minimums of second or subsequent DUI convictions. See Moroz, supra. Thus, the Commonwealth's case is no longer substantially handicapped, and the appeal can no longer be taken as of right. See Pa.R.A.P. 311(d).
Appellate review of any court order is a jurisdictional question. See Commonwealth v. Parker, 173 A.3d 294, 296 (Pa. Super. 2017). We may raise the issue of jurisdiction sua sponte. See Commonwealth v. Yarris, 731 A.2d 581, 587 (Pa. 1999).
Appeal quashed. Judgment Entered.
[*] Retired Senior Judge assigned to the Superior Court.