Com. v. Tighe, A.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

AUGUSTINE L. TIGHE :

:

Appellant : No. 2915 EDA 2025

Appeal from the PCRA Order Entered October 20, 2025 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0002055-2023

BEFORE: BOWES, J., OLSON, J., and McLAUGHLIN, J.

MEMORANDUM BY OLSON, J.: FILED AUGUST 18, 2026

Appellant, Augustine L. Tighe, appeals pro se from the order entered on

October 20, 2025, which provided him with notice that the Post Conviction

Relief Act (“PCRA”) court intended to dismiss his petition in 20 days, without

holding a hearing. See 42 Pa.C.S.A. §§ 9541-9546; see also Pa.R.Crim.P.

907(1). We quash this appeal.

On July 31, 2024, Appellant entered a negotiated guilty plea to DUI –

Highest Rate of Alcohol (Third Offense).1 That day, the trial court sentenced

Appellant to serve a term of 84 months of probation. Appellant did not file a

direct appeal from his judgment of sentence.

On August 11, 2025, Appellant filed a pro se PCRA petition, where he

claimed his sentence “is illegal because a prior Accelerated Rehabilitative

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1 75 Pa.C.S.A. § 3802(c).

Disposition (‘ARD’) disposition was treated as a ‘prior offense’ for purposes of

enhancing [his] DUI to ‘third offense’ status.” Appellant’s Pro Se PCRA

Petition, 8/11/25, at 1. Although Appellant’s sentence was legal when

entered, on May 30, 2025, the Pennsylvania Supreme Court decided

Commonwealth v. Shifflett, 335 A.3d 1158 (Pa. Super. 2025) and held that,

under Alleyne v. United States, 570 U.S. 99 (2013), it is unconstitutional

for a trial court to consider a defendant’s “previous acceptance of [ARD] for

an offense of driving under the influence of alcohol or drugs as a prior offense

for sentencing purposes.” Shifflett, 335 A.3d at 1162. Appellant claimed

that he was entitled to benefit from Shifflett’s pronouncement and requested

that his judgment of sentence be vacated. Appellant’s Pro Se PCRA Petition,

8/11/25, at 1-2.2

The PCRA court issued an opinion on October 20, 2025 and explained:

Appellant’s sentence was legal when entered; Appellant’s judgment of

sentence was final at the time Shifflett was decided; and, Shifflett does not

apply retroactively. See id. at 1-6. Contemporaneous with the opinion, the

PCRA issued an order, declaring that it intended to dismiss Appellant’s petition

in 20 days, without holding a hearing. See PCRA Court’s Order, 10/20/25, at

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2 On September 18, 2025, the PCRA court held a hearing and “determined that [Appellant] was capable of affording counsel, and knowingly, intelligently and voluntarily chose to proceed pro se.” PCRA Court Opinion, 10/20/25, at 2.

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1; see also Pa.R.Crim.P. 907(1). The PCRA court’s October 20, 2025 order

declares:

AND NOW, this 20th day of October, 2025, upon review of [Appellant’s] pro se [PCRA petition,] . . . the [PCRA] court is satisfied that: (1) there are no genuine issues concerning any material fact; (2) [Appellant] is not entitled to post-conviction collateral relief; and (3) no purpose would be served by further judicial proceedings.

Accordingly, pursuant to [Pa.R.Crim.P. 907(1)], notice is hereby given to [Appellant] that the [PCRA] court intends to dismiss his [PCRA petition] without further proceedings. [Appellant] shall have a period of [20] days from the date of this order to respond to the proposed dismissal.

PCRA Court Order, 10/20/25, at 1 (some capitalization omitted).

Appellant filed an immediate notice of appeal from this order. Moreover,

besides the PCRA court’s Pennsylvania Rule of Appellate Procedure 1925(b)

order, the certified record and docket demonstrate that the PCRA court never

entered a subsequent order in this case.

Prior to reaching the merits of this appeal, this Court must “first

ascertain whether the [order appealed from] is properly appealable.”

Commonwealth v. Borrero, 692 A.2d 158, 159 (Pa. Super. 1997). Indeed,

since “the question of appealability implicates the jurisdiction of this Court[,

the issue] may be raised by [this] Court sua sponte.” Commonwealth v.

Baio, 898 A.2d 1095, 1098 (Pa. Super. 2006).

Generally, this Court’s jurisdiction “extends only to review of final

orders.” Rae v. Pa. Funeral Dir's Ass'n, 977 A.2d 1121, 1124-1125 (Pa.

2009); 42 Pa.C.S.A. § 742; Pa.R.A.P. 341(a). Under the PCRA “[a]n order

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granting, denying, dismissing, or otherwise finally disposing of a [PCRA

petition] shall constitute a final order for purposes of appeal.” Pa.R.Crim.P.

910.

In the case at bar, Appellant filed a notice of appeal from the PCRA

court’s Rule 907 notice, which did not “finally dispos[e]” of his PCRA petition,

and which, instead, provided him “a period of [20] days from the date of [the

order] to respond to the proposed dismissal.” See PCRA Court Order,

10/20/25, at 1. Moreover, the PCRA court has never entered a final order in

this case.

Given the absence of a final, appealable order in this case, the PCRA

court’s October 20, 2025 order is interlocutory and unappealable. 3 We,

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3 Pennsylvania Rule of Appellate Procedure 905(a)(5) allows this Court to treat

a “notice of appeal filed after the announcement of a determination but before the entry of an appealable order” as “filed after such entry and on the day thereof.” Pa.R.A.P. 905(a)(5). Moreover, in the civil context, this Court has considered the merits of appeals where a party mistakenly failed to praecipe for entry of judgment – and simply filed an appeal from the order denying the post-trial motion. See, e.g., Mackall v. Fleegle, 801 A.2d 577, 580-581 (Pa. Super. 2002) (where the appeal was taken from the order denying post- trial motions and where neither party praeciped for the entry of judgment, this Court concluded that we would “regard as done that which ought to have been done” and, in the interest of judicial economy, we considered the merits of the appeal). As we explained:

Generally, an appeal will only be permitted from a final order unless otherwise permitted by statute or rule of court. An appeal from an order denying post-trial motions is interlocutory. An appeal to this Court can only lie from judgments entered subsequent to the trial court’s disposition of post-verdict motions, not from the order denying post-trial motions.

(Footnote Continued Next Page)

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However, in Bonavitacola v. Cluver, 619 A.2d 1363 (Pa. Super. 1993), a panel of this Court allowed an appeal to proceed, despite the fact that there was no judgment entered, in the interest of judicial economy. The reasoning behind this decision was that if the order from which an appeal is taken “was clearly intended to be a final pronouncement on the matters discussed in the opinion [accompanying the order], . . . the appeal is properly before us and . . . we have jurisdiction to address the parties’ claims.” [Bonavitacola, 619 A.2d at 1367.]

As our Court explained in Bonavitacola, “[t]he rationale behind treating this appeal as one from an entered judgment is to allow the appeal which is in progress to proceed, economizing judicial resources. Were we to quash an appeal from an order which, except for the entry of judgment, is otherwise final, we would expend judicial resources in the decision to quash, one of the parties would inevitably praecipe the prothonotary to enter judgment, and a subsequent appeal would be permitted to follow.” [Id.]

Nevertheless, “the law of this Commonwealth has long recognized that the entry of judgment is a jurisdictional matter. The requirement that judgment be docketed is jurisdictional. Moreover, the entry of judgment is a prerequisite to our exercise of jurisdiction. On the other hand there are some instances wherein a party has failed to enter judgment and our appellate courts may regard as done that which ought to have been done.” [Johnston the Florist, Inc. v. TEDCO Constr. Corp., 657 A.2d 511, 514-515 (Pa. Super. 1995)].

Mackall, 801 A.2d at 580 (some quotation marks and citations omitted).

The principles that allowed the Mackall Court to consider the merits of the appeal absent judgment do not apply to the case at bar, however, as Appellant is appealing from an interlocutory order that expressly provided him with 20 days to respond to the proposed dismissal. See PCRA Court Order, 10/20/25, at 1. The October 20, 2025 order was, therefore, not “clearly intended to be a final pronouncement on the matters” under consideration. See id., quoting Bonavitacola, 619 A.2d at 1367. As such, we are required to quash this appeal.

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therefore, quash this appeal. See Commonwealth v. Amenuvor, 633 EDA

2019 (Pa. Super. filed 8/26/19) (non-precedential decision) (quashing appeal

that was filed from the PCRA court’s Rule 907 notice); 4 Commonwealth v.

Robinson, 3184 EDA 2018 (Pa. Super. 2020) (same); Commonwealth v.

Peters, 307 A.3d 657 (Pa. Super. 2023) (same).

Appeal quashed. Jurisdiction relinquished.

Date: 8/18/2026

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4 See Pa.R.A.P. 126(b) (unpublished non-precedential decisions of the Superior Court filed after May 1, 2019, may be cited for their persuasive value).