Com. v. Cross, P.

2024 Pa. Super. 120, 317 A.3d 655

• Court: Superior Court of Pennsylvania
• Decided: June 7, 2024
• Docket: 926 WDA 2023
• Status: Published

Opinion

J-S13043-24

2024 PA Super 120

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : PAULA CROSS : : Appellant : No. 926 WDA 2023

Appeal from the Judgment of Sentence Entered July 14, 2023 In the Court of Common Pleas of Blair County Criminal Division at No(s): CP-07-CR-0001694-2020

BEFORE: KUNSELMAN, J., BECK, J., and STEVENS, P.J.E.*

OPINION BY KUNSELMAN, J.: FILED: June 7, 2024

Paula Cross appeals from a partial judgment of sentence that the trial

court imposed after a jury convicted her of unlawfully possessing four guns.1

However, the trial court has not resolved 19 other charges against her. Thus,

the partial sentence is interlocutory; we quash this appeal as premature.

Because we resolve the issue of our appellate jurisdiction on procedural

grounds, a detailed recitation of the underlying facts is unnecessary. Briefly,

in 2013 Cross pleaded guilty to possessing drugs with intent to deliver. As a

result, under Pennsylvania law, she forfeited her right to possess firearms.

Six years later, Cross and Michale Trosky stole three guns from the

home of Cross’s late uncle. Cross stole a fourth gun from her brother. Cross

and Trosky traded the guns to Michael Burchfield for drugs. Police eventually

arrested Burchfield and other co-conspirators. They confessed and implicated

Cross and Trosky for their roles in the criminal enterprise. ____________________________________________

* Former Justice specially assigned to the Superior Court.

1 See 18 Pa.C.S.A. § 6105(a)(1). J-S13043-24

After Cross’s arrest, the Commonwealth charged her at docket number

CP-07-CR-0001694-2020 with 23 counts: conspiring to deal in the proceeds

of a crime; four counts of unlawfully possessing a firearm; two counts of

delivering a gun after 48 hours; four counts of receiving stolen property;

possessing meth with intent to deliver; four counts of criminal use of a

communication facility; four counts of dealing in the proceeds of a crime; and

three counts possessing various drugs.2 See Commonwealth’s Information at

1-5. The Commonwealth also gave notice that it intended to try Cross jointly

with her co-conspirators (i.e., Trosky, Burchfield, Summer Heil, Amanda

Steele, and Denise Feather). See id. at 6.

On November 29, 2020, Cross filed an unopposed motion to sever the

four counts of unlawfully possessing a firearm from her other 19 charges. The

trial court granted Cross’s request.

The severed counts proceeded to trial, and the jury convicted Cross on

all four counts. On July 14, 2023, the trial court sentenced her to two to four

years of incarceration. Cross appealed to this Court, even though 19 counts

remained pending on the criminal-court trial list.

Upon receiving Cross’ appeal, this Court issued her a rule to show cause,

asking why we should not quash the appeal as interlocutory. We observed

____________________________________________

2 See 18 Pa.C.S.A. §§ 903, 5111(a)(1), 6105(a)(1), 6111(a)(1), 3925(a), and

7512(a); and 35 Pa.C.S.A. §§ 780-113(a)(16),(30). Also, the record reflects that the Commonwealth brought additional, related counts against Cross at docket numbers CP-07-CR-0001695-2020 and CP-07-CR-0001696-2020. Those additional counts and docket numbers are not at issue in this appeal.

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that the trial court’s sentence on four out of 23 counts did not resolve all of

the Commonwealth’s claims. Thus, the partial sentence did not appear to be

a final order from which an appeal would lie. Cross replied to our show-cause

order. We discharged the rule, and the issue of appellate jurisdiction was

referred to this panel for resolution.

This Court may raise “the issue of [appellate] jurisdiction sua sponte.”

Commonwealth v. Grove, 170 A.3d 1127, 1136–37 (Pa. Super. 2017).

“Jurisdiction is purely a question of law; the appellate standard of review is de

novo, and the scope of review plenary.” Commonwealth v. Seiders, 11

A.3d 495, 496–97 (Pa. Super. 2010).

Typically, appellate jurisdiction extends to “final orders of the courts of

common pleas.” 42 Pa.C.S.A. § 742. A final order “disposes of all claims and

of all parties.” Pa.R.A.P. 341(b)(1). Accordingly, a criminal defendant “may

appeal only from a final judgment of sentence, and an appeal from any prior

order or judgment will be quashed.” Commonwealth v. Parker, 173 A.3d

294, 296 (Pa. Super. 2017) (emphasis added).

Here, the trial court’s sentence, imposed on four out of 23 charges, does

not dispose of all the claims that the Commonwealth filed against Cross.

Hence, the sentence does not dispose of all claims and all parties. A partial

sentence neither meets the definition of a final order under Rule of Appellate

Procedure 341(b)(1) nor constitutes a final judgment of sentence from which

an appeal will lie. See Parker, 173 A.3d at 296.

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Indeed, this Court has held that an order imposing a sentence on some,

but not all counts, is unappealable. See Commonwealth v. Culsoir, 209

A.3d 433, 435 (Pa. Super. 2019). In Culsoir, a defendant pleaded guilty to

three offenses. The trial court sentenced him on the count of indecent assault,

but it deferred sentencing on his remaining counts for seven months. Rather

than appealing from the indecent-assault sentence, Culsoir waited until the

trial court sentenced him on the remaining two counts.

On appeal, this Court asked whether our jurisdiction extended to the

indecent-assault count, because Culsoir waited more than 30 days after the

trial court sentenced him. Generally, failure to file the appeal within 30 days

of final order “divests the appellate court of its jurisdiction to hear the appeal.”

Commonwealth v. Williams, 106 A.3d 583, 587 (Pa. 2014). Therefore, if

the indecent-assault sentence was a final order, this Court would have lacked

appellate jurisdiction over an appeal from it. We found it was not a final order.

As we explained, Pennsylvania courts favor “limiting appellate review to

final orders [which] not only prevents piecemeal appeals and protracted

litigation, but also promotes judicial accuracy.” Culsoir, 209 A.3d at 435

(quotation omitted). “Accuracy is enhanced when the appellate court can

consider the claim in the context of a complete adjudication and a fully

developed record.” Id. (quotation omitted). Moreover, if “any judgment of

sentence is immediately appealable, it would render the definition of a final

order contained in Rule 341(b)(1) irrelevant.” Id. at 436. Therefore, the

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Culsoir Court declined to adopt such a construction of the rules that would

render Rule 341(b)(1) inoperable.

Instead, we held that “any final order must dispose of all . . . charges.”

Id. (emphasis added). Because the indecent-assault sentence did not dispose

of all outstanding counts, an appeal from that sentence “would have been

premature and interlocutory.” Id. at 437. We concluded that Culsoir properly

waited to appeal from the final judgment of sentence, which disposed of all

the counts against him.

Here, by contrast, Cross appealed from an order that only resolved four

the Commonwealth’s 23 claims at docket number CP-07-CR-0001694-2020.

The other 19 claims filed at CP-07-CR-0001694-2020 “remain pending on the

criminal-court trial list . . . .” Trial Court Opinion, 10/5/23, at 1. Thus, under

Culsoir, this appeal is premature and interlocutory.3

In Cross’s reply to our show-cause order, she attempts to distinguish

her appeal from Culsoir. See Cross’s Response to Order to Show Cause at

1-2. According to Cross, her appeal is procedurally distinct, because the trial

court severed the four counts for possessing stolen firearms from her other

19 charges. That severance, however, applied only to ensure Cross’s right to

a fair trial; the severance did not extend to Cross’s right of appeal. As

Pennsylvania Rule of Criminal Procedure 583 indicates, a trial court’s authority

3 We express no opinion on the appealability of a judgment of sentence that

resolves all the counts at one docket number, if all those counts are severed from counts pending at other docket numbers against the same defendant.

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to grant a severance is limited to the trial of joined charges or codefendants,

not the subsequent appeal.

The Rule provides, “The court may order separate trials of offenses or

defendants, or provide other appropriate relief, if it appears that any party

may be prejudiced by offenses or defendants being tried together.”

Pa.R.Crim.P. 583 (emphasis added). In fact, the prejudice that the Rule

focuses upon is the prejudice that arises “from offenses or defendants being

tried together.” Id. (emphasis added). Rule 583 does not state that the

sentence following a severed trial is immediately appealable, apart from the

other counts that remain unresolved in the trial court.

In fact, as the definition of “severance” makes clear, a severance only

creates a separate proceeding and an appealable order in the civil context.

BLACK’S LAW DICTIONARY defines “severance,” in relevant part, as follows:

severance, n. . . . 2. Civil procedure. The separation, by the court, of multiple parties’ claims whether to permit separate actions on each claim or to allow certain interlocutory orders to become final . . . 3. Criminal procedure. The separation of criminal charges or criminal defendants for trial, as when codefendants have conflicting defenses so that prejudice might result to one or more of them.

BLACK’S LAW DICTIONARY at 1583 (10th ed. 2014) (emphasis added).

By definition, a severance in the criminal context protects a defendant

from the possible prejudice that might arise if a single jury considered all the

facts and charges simultaneously. See Pa.R.Crim.P. 583. We hold that, in

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the criminal context, the procedural implications of a severance are limited to

the trial itself.4

A severance of some criminal charges has no bearing on our appellate

jurisdiction, even where, as here, the trial court has proceeded to sentence a

defendant on the severed charges. In order to avoid piecemeal appeals and

to assure more judicial accuracy, this Court’s appellate jurisdiction only vests

from final judgments of sentence, not partial sentences. See Culsoir, supra.

Hence, Cross’s reliance upon the order of severance to distinguish her

appeal from Culsoir is misplaced.5 She appealed from an interlocutory order

that resolved only a fraction of the Commonwealth’s claims against her. As

such, we lack appellate jurisdiction over the appealed-from order.

Appeal quashed.

4 For severance in the civil context and its impact on our appellate jurisdiction

over interlocutory orders, see Kaiser v. Meinzer, 414 A.2d 1080, 1085 (Pa. Super. 1979) (noting that “a severance of actions effects a splitting of them into one or more independent actions for all purposes, including trial and appellate procedure.”).

5 We also note that Cross claims, if we do not review the appealed-from order

now, she will suffer prejudice. Cross suggests that deciding whether to plead guilty or proceed to trial will be rendered more difficult without knowing the outcome of this appeal. See Cross’s Response to Order to Show Cause at 2. However, she cites no law to support that contention, nor does our research reveal any. Whatever challenges Cross might face in future plea discussions with the Commonwealth, her inability to predict the final outcome of four out of 23 counts does not give her a right of appeal from an interlocutory order. Nor did she petition this Court for permission to appeal from the interlocutory order under Pa.R.A.P. 312.

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DATE: 06/07/2024

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