Appeal from the Judgment of Sentence of January 23, 2012, in the Court of Common Pleas of Delaware County, Criminal Division at No. CP-23-CR-0001157-2011
BEFORE: STEVENS, P.J., LAZARUS and COLVILLE [*], JJ.
This case is a timely direct appeal from the judgment of sentence imposed on Appellant following her conviction for driving under the influence of a controlled substance ("DUI, " 75 Pa.C.S.A. § 3802(d)(2)), failure to drive on the right side of a roadway ("failure to keep right, " 75 Pa.C.S.A. § 3301), and careless driving (75 Pa.C.S.A. § 3714). Appellant contends the court erred by denying her pretrial motion to dismiss the prosecution for a violation of Pa.R.Crim.P. 600. She also argues the court should have dismissed the case because the Commonwealth improperly filed the criminal complaint, that complaint having been lodged after a prior complaint was dismissed. Finding Appellant's issues meritless, we affirm the judgment of sentence.
Appealability and Timeliness
Although we have already indicated this appeal is from Appellant's judgment of sentence and is timely, we will elaborate somewhat on the issues of appealability and timeliness because there was, at one point in this case, some question about both matters and because both implicate our jurisdiction, see Commonwealth v. Kennedy, 876 A.2d 939, 943 (Pa. 2005) (indicating appellate court lacks jurisdiction over non-appealable orders); Commonwealth v. Wrecks, 934 A.2d 1287, 1289 (Pa. Super. 2007) (indicating this Court has no jurisdiction over untimely appeal). Appellant's notice of appeal, filed April 2, 2012, wrongly stated that she was appealing from her conviction of November 29, 2010. First, we note
Appellant was not convicted on that date but, instead, was convicted by entry of verdict on December 6, 2011. Second, the final, appealable order for a defendant's direct appeal in a criminal case is the judgment of sentence, not the conviction. Commonwealth v. Borrero, 692 A.2d 158, 159 (Pa. Super. 1997). Thus, this appeal is not from Appellant's conviction but, rather, from her judgment of sentence, that judgment having been entered on January 23, 2012.
We also observe that, after filing timely post-sentence motions, Appellant lodged this appeal while those motions were pending. Doing so was improper. Pa.R.Crim.P. 720 cmt. Indeed, when post-sentence motions are filed, the judgment of sentence does not become final until those motions are decided. Borrero, 692 A.2d at 159. Thus, because the motions were pending, Appellant's notice of appeal was premature. Commonwealth v. Little, 879 A.2d 293, 296 n.6 (Pa. Super. 2005). Because the notice of appeal was premature, we might be initially inclined to quash this matter. Borrero, 692 A.2d at 159-61.
Nevertheless, after lodging her appeal, Appellant withdrew her post-sentence motions and secured an order from the trial court memorializing the withdrawal pursuant to Pa.R.Crim.P. 720(A)(2)(c). When post-sentence motions are withdrawn and the trial court enters an order memorializing the withdrawal, any direct appeal must be filed within thirty days of the order. Id. In this case, because the memorialization order was entered on the docket, we will entertain this appeal as having been filed on the date of entry of that order. Little, 879 A.2d at 296 n.6; Pa.R.A.P. 905(a)(5). Thus, we will regard this appeal as timely. Little, 879 A.2d at 296 n.6; Pa.R.A.P. 720(A)(2)(1), 905(a)(5).
It would have been better practice for Appellant, having filed post-sentence motions and then having decided to withdraw them, to have proceeded with the withdrawal and to have obtained the court's memorialization order before filing her notice of appeal. Indeed, the confusion and imprecision arising from Appellant's filings and chosen course of conduct led us, earlier in this case, to issue a rule to show cause as to why this appeal should not be quashed. Because of the confused record, we posited multiple possible bases for the arguable impropriety of the appeal: (1) the appeal may have been taken when no appealable order was entered on the docket (i.e., Appellant claimed to be appealing from a conviction rather than a judgment of sentence, or, alternatively, post-sentence motions were still pending, thus meaning that any judgment of sentence, if entered, had not yet become final); or (2) the appeal may have been late (i.e., it was filed in April 2012 while Appellant purported, incorrectly, to appeal from a ruling of November 29, 2010). Nevertheless, as we have now clarified that this appeal is from the 2012 judgment of sentence and is timely, we will not quash this appeal. We will address its merits.
The record reveals the following facts. On June 19, 2009, the Commonwealth filed a complaint alleging DUI, failure to keep right and careless driving against Appellant. On October 26, 2009, the case proceeded to a preliminary hearing. At that hearing, the Commonwealth presented evidence that included the following. Appellant, as the driver of her vehicle, was stopped in the middle of a road despite there being no stop sign or red light. A witness then saw Appellant swerve, first over the yellow road lines and then back, apparently traveling almost curb to curb. Appellant thereafter proceeded along the road, crossing over the yellow lines multiple times as she attempted to pass another vehicle. Police eventually located Appellant in her car which was, by then, stopped. An officer found Appellant to be lethargic and unable to perform field-sobriety testing successfully. Another officer had to hold Appellant up so that she would not fall. Police arrested her for DUI and transported her to a hospital where she underwent blood testing.
Also at the preliminary hearing, the Commonwealth introduced a report from a toxicologist revealing that a quantity of Carisoprodol, a prescription drug, and a metabolite of Carisoprodol (Meprobamate), were found in Appellant's blood during the aforementioned testing. The report indicated the concentrations of the substances in Appellant's blood were consistent with Appellant having recently used Carisoprodol. The report did not contain an opinion that the Carisoprodol/Meprobamate impaired Appellant's driving ability but, rather, stated that such an opinion could not be precluded. The report further stated that the blood results corroborated the officers' observations about Appellant's on-scene condition. More specifically, the pertinent part of the report read in this way:
At the levels found in the case, it cannot be precluded that the Carisoprodol intake impaired [Appellant's] ability to safely operate a motor vehicle on the highway.
Thus, in the absence of other similarly or more competent causes, and especially if the Carisoprodol was not therapeutically prescribed for this individual, these findings corroborate and support an arresting officer's observations concerning the exhibition of adverse psychoactive actions.
N.T., 10/26/09, at 27-28.
The expert did not testify at the preliminary hearing. His report was presented by one of the arresting officers. The magisterial ...