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COMMONWEALTH PENNSYLVANIA v. DONALD R. FEAGLEY (02/29/88)

filed: February 29, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
DONALD R. FEAGLEY, APPELLANT



Appeal from the Order of the Court of Common Pleas, Blair County, Criminal Division, at No. C.A. No. 456 of 1986.

COUNSEL

Charles A. Bierbach, Huntingdon, for appellant.

Ellen L. Cohen, Assistant District Attorney, Williamsport, for Com., appellee.

Brosky, Tamilia and Kelly, JJ. Kelly, J., files a concurring opinion. Tamilia, J., files a dissenting statement.

Author: Brosky

[ 371 Pa. Super. Page 595]

This is an appeal from an order accepting appellant into the Accelerated Rehabilitative Disposition (ARD) program and setting forth the terms and conditions of that acceptance.

The question before us is whether the trial court can impose a mandatory twelve-month license suspension as a condition of acceptance into the ARD program when 75 Pa.C.S.A. § 3731(e)(6)(ii) specifically grants discretion to impose a license suspension for a period of less than twelve months. We quash the appeal.

Before doing so, however, we must direct our attention to resolving a procedural irregularity in the record.

Subsequent to the filing of the Notice of Appeal and on March 25, 1987, it appears that the trial court entered an Order vacating the suspension of appellant's operator's privileges. By further Order dated April 16, 1987, the trial court apparently suspended the operation of the March 25, 1987 Order and "reinstated" the Order of January 12, 1987 (filed February 20, 1987) from which the instant appeal was taken. Neither the March 25, 1987 Order nor the one dated April 16, 1987*fn1 appear as part of

[ 371 Pa. Super. Page 596]

    the record certified to us. We attribute their absence from the record to the fact that the record in this case was transmitted to this Court on March 16, 1987. However, both Orders were without legal effect when entered. A trial court is without jurisdiction to act in a matter after the record has been transmitted to an appellate court. Commonwealth v. Burkett, 352 Pa. Super. 350, 507 A.2d 1266 (1986). Moreover, when a timely Motion to Modify has been filed, as here, the trial court must act within the thirty-day appeal period by either issuing an order denying the Motion or vacating the original judgment of sentence either for the purpose of granting the Motion or to gain an additional period of time within which to consider the Motion. In other words, after an appeal has been docketed in this Court, the mere filing of a Motion to Modify, absent the trial court's utilization of one of the above-cited options within the thirty-day appeal period, does not toll the applicable period, and the trial court consequently loses jurisdiction to act thereafter. Commonwealth v. Gordon, 329 Pa. Super. 42, 477 A.2d 1342 (1984); Commonwealth v. Leonard, 308 Pa. Super. 292, 454 A.2d 136 (1982); Commonwealth v. Lynch, 304 Pa. Super. 248, 450 A.2d 664 (1982); Commonwealth v. Corson, 298 Pa. Super. 51, 444 A.2d 170 (1982); Commonwealth v. Canady, 297 Pa. Super. 292, 443 A.2d 843 (1982); Comment following Pa.R.Crim.P. 1410; Pa.R.App.P. 1701(b)(3).

Appellant was charged with violating 75 Pa.C.S.A. § 3731(a)(1) and (a)(4). He was subsequently admitted into the ARD program where, among one of his conditions of acceptance, was a suspension of his operator's privileges for twelve months by Order of January 12, 1987, filed February 20, 1987. On January 14, 1987, he filed a Motion to Modify the condition of the twelve-month license suspension.

The Commonwealth argues that appellant has failed to preserve this issue because he did not voice any opposition to the condition at the ARD hearing. It considers the filing of a Motion to Modify inappropriate, premising that conclusion on the correct assumption that ARD acceptance does

[ 371 Pa. Super. Page 597]

    not operate as a conviction which, in turn, implicates the imposition of sentence.

Our court in Commonwealth v. Becker, 366 Pa. Super. 54, 530 A.2d 888 (1987) (en banc), recently held that, for the purpose of applying the recidivist penalty provisions of 75 Pa.C.S.A. § 3731(e)(1), acceptance of ARD is a conviction. 75 Pa.C.S.A. § 3731(e) provides:

(2) Acceptance of Accelerated Rehabilitative Disposition or any other form of preliminary disposition of any charge brought under this section shall be considered a first conviction for the purpose of computing whether subsequent conviction of a violation of this section shall be considered a second, third, fourth or subsequent conviction. . . .

(Emphasis supplied).

The Becker court elaborated on this as follows:

We emphasize that our decision in the instant case is narrow in scope. We deal here only with the proper interpretation of § 3731(e)(2). With this in mind, it is readily apparent that the straightforward application of § 3731(e)(2) is consistent with Pennsylvania case law and with the Rules of Criminal Procedure. It is true that when the word 'conviction' appears in a statute, it is usually taken to mean 'the ascertainment of the guilt of the accused and judgment thereon by the court . . .' Commonwealth v. Minnich, 250 Pa. 363, 367, 95 A. 565, 567 (1915). However, this technical definition of conviction should not be applied 'where the intention of the legislature is obviously to the contrary . . .' Commonwealth ex rel. McClenachan v. Reading, 336 Pa. 165, 169, 6 A.2d 776, 778 (1939). Where a statute clearly defines its terms, that fact that other legal enactments may provide alternate definitions of the same term is irrelevant. The court must construe each statute according to its internal definition. See Commonwealth v. Lobiondo, 501 Pa. 599, 603, 462 A.2d 662, 664 (1983); Commonwealth v. Massini, 200 Pa. Super. 257, 259, 188 A.2d 816, 817 (1963).

[ 371 Pa. Super. Page 598366]

Pa. Superior Ct. at 59-60, 530 A.2d at 890-91. Accord Commonwealth v. Potts, 352 Pa. Super. 299, 507 A.2d 1239 (1986) (ARD acceptance is the equivalent of a conviction only for the purpose of sentence enhancement for subsequent convictions.)

Hence, since our court has considered acceptance into the ARD program to be a conviction only for the purpose of sentence enhancement for subsequent violators, we hold that appellant's acceptance operates as a conviction for that purpose only and that the appeal is not properly before us.

The salutary purpose of and theory behind the ARD program militate against the conclusion that an order of acceptance into the program is an appealable one. First, ARD is a pre-trial diversionary program in which the District Attorney agrees to suspend prosecution of a defendant contingent upon that subject's successful participation in a program of rehabilitation. If ARD is not completed successfully, the defendant may be prosecuted upon revocation of his participation in the program. Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985). The purpose of this diversionary program is to attempt to rehabilitate the defendant without resort to a trial and ensuing conviction. During this time, the criminal proceedings are held in abeyance pending successful completion of the program or revocation for violation of the conditions. Commonwealth v. Krall, 290 Pa. Super. 1, 434 A.2d 99 (1981). Moreover, since acceptance of ARD does not constitute a conviction except for the limited purpose set forth in Section 3731(e)(2), supra, Commonwealth v. Becker, supra; Commonwealth v. Potts, supra, it provides no basis for impeachment of a witness. Commonwealth v. Scheinert, 39 Pa. Super. 423, 519 A.2d 422 (1987) (Kelly, J., concurring and joining). Acceptance of ARD is not the equivalent of a conviction, nor does successful completion of the program result in an acquittal. Id.

In Commonwealth v. Hunter, 294 Pa. Super. 52, 439 A.2d 745 (1982), a panel of this court quashed an appeal from an order denying the Motion of the Commonwealth, joined in

[ 371 Pa. Super. Page 599]

    by the defendant, to accept the latter into the ARD program, holding that such an order was interlocutory and non-appealable under Pa.R.Crim.P. 179(c) and 184(c), infra, the latter of which specifically forecloses appellate review of any order terminating or otherwise barring a defendant's participation in the ARD program. The court's predicate for doing so was its conclusion that the ARD Rules contemplate only a postponement of proceeding on the applicable charges during the pendency of a defendant's participation in the program. Despite the difference in the Order appealed ...


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