Com. v. Flaherty, T.

• Court: Superior Court of Pennsylvania
• Decided: September 10, 2014
• Docket: 2888 EDA 2013
• Status: Unpublished

Opinion

J-S36028-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

TIMOTHY FLAHERTY

Appellant No. 2888 EDA 2013

Appeal from the Order Entered September 26, 2013 In the Court of Common Pleas of Pike County Criminal Division at No(s): CP-52-CR-0000320-2012 CP-52-CR-0000321-2012

BEFORE: GANTMAN, P.J., JENKINS, J., and FITZGERALD, J.**

MEMORANDUM BY JENKINS, J.: FILED SEPTEMBER 10, 2014

The Commonwealth of Pennsylvania appeals the September 26, 2013

order of the Court of Common Pleas of Pike County granting Timothy

Flaherty an extension of his previously granted furlough from the county

-traumatic stress syndrome

On February 28, 2013, the trial court sentenced Flaherty to a term of

incarceration in the Pike County Correctional Facility of not less than one

year plus ninety days but not more than five years. The sentencing order

____________________________________________

** Former Justice specially assigned to the Superior Court. J-S36028-14

Furlough seeking leave to receive inpatient treatment at a Residential

specializes in PTSD in Montrose, New York.

Furlough for a forty-five day treatment program at the aforementioned

facility. On March 14, 2013, the Commonwealth filed a Petition for Rescission

arrest in Dauphin County. The trial cou

Petition for Rescission and entered an order rescinding the previous furlough

order. On March 19, 2013, Flaherty filed a second Petition for Furlough in

which he averred the bench warrant had been issued in error and had been

rescinded.1 On March 20, 2013, following a hearing, the trial court granted

terms of the March 11, 2013 furlough order.

After Flaherty successfully completed DRP, he petitioned the trial court

for a furlough extension to remain at the in-patient PTSD facility and

continue receiving PTSD treatment. On May 2, 2013, following a hearing, the

1 In his petition, Flaherty included a March 13, 2013 order from Dauphin County rescinding the bench warrant.

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Commonwealth timely ap

furlough petition and first extension.

Pennsylvania Rule of Appellate Procedure 1701 explains the effect of

pending matter:

Rule 1701. Effect of Appeal Generally

(a) General rule. Except as otherwise prescribed by these rules, after an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may no longer proceed further in the matter.

(b) Authority of a trial court or agency after appeal. After an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may:

(1) Take such action as may be necessary to preserve the status quo, correct formal errors in papers relating to the matter, cause the record to be transcribed, approved, filed and transmitted, grant leave to appeal in forma pauperis, grant supersedeas, and take other action permitted or required by these rules or otherwise ancillary to the appeal or petition for review proceeding.

***

Pa.R.A.P. 1701 (emphasis added).

original Petition for Furlough and first extension was pending, Flaherty filed a

Petition for Continued Furlough. On September 26, 2013, following a

hearing, the trial court granted the petition, finding that Flaherty made

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significant improvements2 during the furlough. The trial court ordered

Flaherty to continue to reside in the treatment facility twenty-four hours a

day and to begin a new treatment program called Common Ground at the

facility, which would focus on issues such as substance abuse and PTSD.

Trial Court Opinion, at 3. The Commonwealth appealed the grant of the

extension,

to be released from serving his incarceration sentence [to] a new program

[Common Ground] after completion of a prior program [DRP] and expired

On March 31, 2014, this Court addressed the prior appeals3 and found

the initial furlough and its extension improper. We held in Commonwealth

v. Flaherty, 89 A.3d 286 (Pa.Super.2014) that the trial court did not have

2 The significant improvements included negative results from multiple drug urine tests, attendance at groups and meetings as scheduled, participation in substance abuse groups, and completion of monthly community service. See Trial Court Opinion, at 3; August 23, 2013 Letter from Jay Pomales, Ph.D, Department of Veterans Affairs, at 1. 3

docket numbers 1034 EDA 2013 and 1440 EDA 2013.

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leave from a county jail. Id. at 289 (citing 42 Pa.C.S. § 9813).

Accordingly, regardless of our interpretation of Pa.R.A.P. 1701, our

prior holding mandates that any orders extending the improvidently granted

initial furlough be vacated. As logic dictates and Appellee concedes,4 because

the trial court did not have jurisdiction to enter the initial furlough and the

first extension, the trial court could not have jurisdiction to continue

Order reversed. Jurisdiction relinquished.

President Judge Gantman joins the memorandum.

Justice Fitzgerald files concurring statement in which Judge Jenkins

joins.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/10/2014

4 See not initially possess jurisdiction to grant furlough to Mr. Flaherty, it can only logically be concluded that the [t]rial [c]ourt did not possess jurisdiction to continue furlough, regardless of the circumstances, under Pa.R.A.P. 1701. Accordingly, Mr. Flaherty is constrained to concede that the [t]rial [c]ourt

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