J-S24025-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ARLET URRUTIA : No. 743 EDA 2021
Appeal from the Order Entered March 15, 2021
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0000997-2020
BEFORE: PANELLA, P.J., LAZARUS, J., and PELLEGRINI, J.*
JUDGMENT ORDER BY LAZARUS, J.: FILED NOVEMBER 18, 2022
The Commonwealth of Pennsylvania appeals from the order, entered in
the Court of Common Pleas of Delaware County, denying its motion in limine
seeking permission to present testimonial evidence with respect to defendant
Arlet Urrutia’s 2011 driving under the influence (DUI)1 charge in Philadelphia
County. After careful review, we quash the appeal.
Urrutia entered into the Accelerated Rehabilitative Disposition (ARD)
Program for his 2011 DUI charge and successfully completed the program.
On October 5, 2019, Urrutia was charged with the instant DUI offense. On
February 5, 2020, the Commonwealth filed a motion in limine seeking to
introduce evidence of the 2011 offense. The trial court denied the motion in
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S. § 3806(a).
J-S24025-22
accordance with Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super.
2020), which held unconstitutional that portion of the DUI statute equating
prior acceptance of ARD with a prior conviction for purposes of imposing a
mandatory minimum sentence for a second or subsequent DUI offense.
By order dated August 17, 2022, this panel stayed disposition of the
Commonwealth’s appeal pending this Court’s en banc decision in
Commonwealth v. Moroz, --- A.3d ---, 2022 PA Super 169 (Pa. Super. filed
Oct. 4, 2022) (en banc). In Moroz, our Court overruled Chichkin, holding
that the portion of section 3806(a) that equates prior acceptance of ARD to a
prior conviction for purposes of imposing a section 3804 mandatory minimum
sentence passes constitutional muster.
Consequently, the Commonwealth is no longer barred from presenting
evidence of a prior ARD at a sentencing hearing. 2 Therefore, the
Commonwealth can no longer demonstrate that its prosecution has been
____________________________________________
2 We note that this case has a unique procedural posture due to the pre-trial
nature of the underlying order denying the motion in limine. When the
Commonwealth’s appeal was filed, Chichkin was still controlling, and, thus,
the Commonwealth’s case was substantially handicapped by the trial court’s
denial of its motion in limine because trial was the only time the
Commonwealth could present evidence of Urrutia’s 2011 DUI and ARD
acceptance. See Chichkin, supra. However, during the pendency of this
appeal, Chichkin was overruled by Moroz and now the Commonwealth is
expressly permitted to present a prior ARD at the sentencing hearing to
enhance mandatory minimums of second or subsequent DUI convictions. See
Moroz, supra. Thus, the Commonwealth’s case is no longer substantially
handicapped, and the appeal can no longer be taken as of right. See Pa.R.A.P.
311(d).
-2-
J-S24025-22
terminated or substantially handicapped, as required by Pa.R.A.P. 311(d). 3
Accordingly, we lack jurisdiction to entertain this interlocutory appeal, and we
quash.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2022
____________________________________________
3 Appellate review of any court order is a jurisdictional question. See
Commonwealth v. Parker, 173 A.3d 294, 296 (Pa. Super. 2017). We may
raise the issue of jurisdiction sua sponte. See Commonwealth v. Yarris,
731 A.2d 581, 587 (Pa. 1999).
-3-