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COMMONWEALTH PENNSYLVANIA v. MICHAEL VANWHY (01/19/82)

SUPERIOR COURT OF PENNSYLVANIA


filed: January 19, 1982.

COMMONWEALTH OF PENNSYLVANIA,
v.
MICHAEL VANWHY, APPELLANT

No. 79 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Monroe County at No. 631-1980, 3381 Civil 1980 Habeas Corpus.

COUNSEL

Jeffrey G. Velander, Stroudsburg, for appellant.

James P. Gregor, Assistant District Attorney, Stroudsburg, for Commonwealth, appellee.

Wickersham, McEwen and Popovich, JJ.

Author: Wickersham

[ 294 Pa. Super. Page 436]

Appellant, Michael Vanwhy, was charged in an information by the District Attorney of Monroe County that on or about November 8, 1980, he operated a 1974 motor vehicle while under the influence of alcohol. Further, that he operated said vehicle without having obtained a valid operator's license and further that he failed to stop his vehicle at the scene of an accident near Dunn's Tavern, East Stroudsburg, failed to render assistance to one Donald W. Middagh, Jr. and Brian Middagh, occupant of a vehicle operated by Donald W. Middagh, Jr., and failed to give his name, address and registration number all of which in violation of the Pennsylvania Motor Vehicle Code, 75 Pa.C.S.A. § 3731(a), § 1501(a), § 3742(a) and § 3744(a).

Thereafter, Michael Vanwhy, appellant, filed a pre-trial motion entitled "Petition for Writ of Habeas Corpus" challenging his arrest by an officer of the East Stroudsburg

[ 294 Pa. Super. Page 437]

Police Department and a hearing was held thereon before Senior Judge Arlington W. Williams on December 16, 1980 in the court house at Stroudsburg, with Raymond P. Kashimba, Esquire, public defender, appearing for Michael Vanwhy.

By order of court dated December 17, 1980, Senior Judge Williams denied and dismissed the "Petition for Habeas Corpus" and from such order Michael Vanwhy took the instant appeal to this court.*fn1

In Commonwealth v. Pollick, 420 Pa. 61, 215 A.2d 904 (1966), Justice (later Chief Justice) Eagen wrote:

Is this order appealable?

It is established beyond argument that an interlocutory order is not appealable, unless expressly made so by statute: Goldstein v. Stadler, 417 Pa. 589, 208 A.2d 850 (1965); Commonwealth v. O'Brien, 389 Pa. 109, 132 A.2d 265 (1957); Sullivan v. City and County of Philadelphia, 378 Pa. 648, 107 A.2d 854 (1954); and, Petition of Quay, 189 Pa. 517, 42 A. 199 (1899).

It is likewise well established that as a general rule the defendant in a criminal case may appeal only from the judgment of sentence: Commonwealth v. Wright, 383 Pa. 532, 119 A.2d 492 (1956).*fn1a For example, a defendant may not appeal from an order overruling a demurrer to the Commonwealth's evidence: Commonwealth v. Kephart, State Treasurer (No. 1), 80 Pa. Super. 315 (1923); nor from an order refusing to quash an indictment: Commonwealth v. O'Brien, supra; nor from an order denying a request to suppress evidence: Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963). As stated in the early case of Marsh v. Commonwealth, 16 S. & R. 318 (1827). '[I]t is time enough to permit him to arrest the course of the criminal law, when he has suffered actual injury.' The issue here,

[ 294 Pa. Super. Page 438]

    therefore, is whether or not the Act of 1957, supra, creates an exception to the established rule and permits a defendant to appeal from an order (which is patently interlocutory) refusing his discharge after motion filed under the act. We conclude it does not.

Id., 420 Pa. at 63, 215 A.2d at 905-6.

We are not here concerned with exceptional circumstances and we are clearly involved here with an interlocutory order which is not appealable. The appeal is quashed and the record remanded to Monroe County for trial.

Appeal quashed.


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