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COMMONWEALTH PENNSYLVANIA v. JAMES R. MCPHERSON (11/27/87)

filed: November 27, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
JAMES R. MCPHERSON, APPELLANT (TWO CASES)



Appeal from the Order of the Court of Common Pleas, Criminal Division, of Clearfield County, No. 83-474-CRA. Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division of Clearfield County, No. 83-474-CRA.

COUNSEL

John Sughrue, Clearfield, for appellant.

Leslie A. Hoffman, Assistant District Attorney, Clearfield, for Com., appellee.

Cirillo, President Judge, and Johnson and Montgomery, JJ.

Author: Per Curiam

[ 368 Pa. Super. Page 276]

Appellant James R. McPherson was arrested and charged with driving under the influence of alcohol. These two appeals are taken from the denial of appellant's "Application for Dismissal of Prosecution with Prejudice and for Discharge of Defendant" and from the judgment of sentence imposed upon appellant's conviction. We quash the appeal from the denial of the application to dismiss and affirm the judgment of sentence.

Appellant's first trial resulted in a hung jury. A second trial was scheduled for November 5, 1984. On November 1, appellant filed an "Application for Dismissal of Prosecution with Prejudice and for Discharge of Defendant," which alleged violations of Pa.R.Crim.P. 1100. On November 5, when the case was called for trial, appellant sought a ruling on this application. The trial court denied the motion and ordered the case to trial. Appellant filed a notice of appeal from that denial on November 5. The case proceeded to trial and appellant was convicted. Post-trial motions were denied and appellant was sentenced to five months to two years imprisonment. Appellant filed a direct appeal from the judgment of sentence.

Initially, we must determine whether the appeal from the denial of appellant's "Application" is properly before us. It is well-established that a criminal defendant

[ 368 Pa. Super. Page 277]

    may take an appeal only from the judgment of sentence. Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286 (1986); Commonwealth v. Myers, 457 Pa. 317, 322 A.2d 131 (1974); Commonwealth v. Cole, 437 Pa. 288, 263 A.2d 339 (1970); Commonwealth v. Pollick, 420 Pa. 61, 215 A.2d 904 (1966). An appeal from any prior order must be quashed. Commonwealth v. Myers, supra. Appellant seeks to avoid this result by arguing that his appeal falls under the exception listed in Pa.R.A.P. 311(a)(5). This section provides that an interlocutory appeal as of right may be taken where an order awards a new trial and the defendant claims that the proper disposition of the matter would be absolute discharge. Such is not the case here as there is no order awarding a new trial. We must disagree with appellant's argument that the grant of a mistrial due to a deadlocked jury is the equivalent of an award of a new trial. When a mistrial is declared due to a deadlocked jury, no award of a new trial is necessary as retrial follows as of course. We conclude therefore that the appeal at 1458 Pittsburgh 1984 must be quashed as interlocutory. We turn then to the issues raised in the appeal from the judgment of sentence.*fn1

Appellant first contends that the trial court erred in ordering the case to trial after appellant had perfected his appeal from the denial of his motion for dismissal. The Rules of Appellate Procedure authorize the trial court to "proceed further in any matter in which a non-appealable interlocutory order has been entered, notwithstanding the filing of a notice of appeal . . . ." Pa.R.A.P. 1701(b)(6).*fn2 Clearly, an order refusing to dismiss a case on Rule 1100 grounds is a non-appealable interlocutory order. Commonwealth v. Bennett, 236 Pa. Super. 509, 345 A.2d 754 (1975). Appellant's attempt to bring this case within the exception

[ 368 Pa. Super. Page 278]

    of Pa.R.A.P. 331(a)(5) is unavailing as explained above. Therefore, the trial court did not act improperly in proceeding to trial while the appeal from ...


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