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Commonwealth v. Mitchell

Superior Court of Pennsylvania

July 30, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
VICTOR LLOYD MITCHELL, Appellant

Appeal from the Order entered August 20, 2012, Court of Common Pleas, Dauphin County, Criminal Division at No. CP-22-CR-0000617-2011

BEFORE: DONOHUE, WECHT and COLVILLE [*], JJ.

OPINION

DONOHUE, J.

Victor Lloyd Mitchell ("Mitchell") appeals pro se from the August 20, 2012 order denying his July 25, 2012 pro se petition seeking a change of venue.[1] Because we conclude that this Court lacks jurisdiction, we quash the appeal.[2]

The trial court summarized the procedural history of this case as follows:

[Mitchell] was arrested and charged with
[a]ggravated [a]ssault, [FN]1 [u]se of or [p]ossession with [i]ntent to [u]se [d]rug [p]araphernalia, [FN]2 and [p]ossessing [i]nstruments of [c]rime.[FN]3 On December 29, 2010, bail was set […] in the amount of $275, 000 straight bail. [Mitchell] is currently being held in Dauphin County Prison awaiting trial.
On July 25, 2012, [Mitchell] filed a [m]otion for [c]hange in [v]enue pursuant to Pa.R.Crim.P. 584. On August 14, 2012, a hearing was held on the [m]otion for [c]hange of [v]enue along with other outstanding pre-trial motions. By [o]rder dated August 20, 2012, this [c]ourt denied [Mitchell's] [m]otion for [c]hange of [v]enue.
[FN]1 18 Pa.C.S.[A.] § 2702.
[FN]2 35 P.S. § 780-113(a)(32).
[FN]3 18 Pa.C.S.[A.] § 907(a).

Trial Court Opinion, 10/8/2012, at 1-2. Thereafter, Mitchell filed a timely pro se notice of appeal followed by a court-ordered Pa.R.A.P. 1925(b) statement. The Honorable Richard A. Lewis filed a Pa.R.A.P. 1925(a) opinion on October 8, 2012.

As noted above, Mitchell's appeal challenges the trial court's denial of his motion seeking a change in venue pursuant to Pa.R.Crim.P. 584.[3] In his motion, Mitchell alleged that there is no reasonable probability that the judiciary of the Twelfth Judicial District can be impartial because of a July 13, 2012 order wherein the Honorable Lawrence F. Clark, Jr., a prior judge assigned to Mitchell's case, recused himself from any further participation in Mitchell's case and recommended that court administration consider reassigning the case to another judicial district.[4]

We conclude that this Court lacks jurisdiction to entertain Mitchell's appeal. In order for this Court to have jurisdiction, an appeal must be from an appealable order. Commonwealth v. Brister, 16 A.3d 530, 533 (Pa. Super. 2011) ("[T]he appealability of an order directly implicates the jurisdiction of the court asked to review the order."). The Pennsylvania Rules of Appellate Procedure (Pa.R.A.P.) delineate appealable orders as final orders (Pa.R.A.P. 341); interlocutory orders as of right (Pa.R.A.P. 311); interlocutory orders by permission (Pa.R.A.P. 312); and collateral orders (Pa.R.A.P. 313). Commerce Bank/Harrisburg, N.A. v. Kessler, 46 A.3d 724, 728 (Pa. Super. 2012). Without reference to the Rules of Appellate Procedure, the trial court and the Commonwealth, relying on two Supreme Court cases that pre-date the promulgation of the current rules of appellate procedure, [5] correctly state that an appeal in a criminal case from a pre-trial order denying a change in venue is an appeal from a non-final, interlocutory order. Trial Court Opinion, 10/8/2012, at 2-3; Commonwealth's Brief at 4-5; see Commonwealth v. Swanson, 424 Pa. 192, 193, 225 A.2d 231, 232 (1967) (quashing a criminal defendant's appeal from the a pre-trial order denying a change of venue because it was an appeal from an interlocutory order); Commonwealth v. Sites, 430 Pa. 115, 242 A.2d 220 (1968) (concluding the ...


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