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HomeMy WebLinkAbout98-991 CriminalCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NICHOLAS PRACHT NO. 98-0991 CRIMINAL TERM IN RE: PETITION FOR INTERLOCUTORY APPEAL BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., October 13, 2003. Defendant comes before this Court requesting permission to appeal two interlocutory orders made during Defendant's July 23, 2003, Post Conviction Relief Act ("PCRA") hearing in the above-captioned case.~ For the following reasons, Defendant's Petition for Permission To Appeal from Two Interlocutory Orders will be denied. An appeal from an interlocutory order may be authorized where 1) the issue involved is a "controlling question of law as to which there is a substantial ground for difference of opinion," and 2) an immediate appeal might "materially advance the ultimate termination of the matter.''2 For Defendant's petition to be granted, the orders at issue must fulfill both of these requirements. The first order Defendant seeks to appeal is the undersigned judge's refusal to dismiss Defendant's court-appointed counsel in an unrelated case which was heard by another judge and which was at the time, and still is, pending on appeal ~ Petition for Permission To Appeal From Two Interlocutory Orders, at 1, 7. (hereinafter Petition __). In a PCRA proceeding, only orders "granting, denying, dismissing, or otherwise finally disposing of" the petition constitute final, appealable orders. Pa. R. Crim. P. Rule 910. As the orders in question do not fit this description, they are interlocutory. : Act of July 9, 1976, P.L. 586, § 2, as amended, 42 Pa. C.S. § 702(b). in the Superior Court.3 This order fails the first requirement for an interlocutory appeal as opinions cannot differ, much less substantially, that jurisdiction was lacking to grant the relief requested. As such, Defendant's request to appeal this order will be denied. The second order Defendant seeks to appeal is the Court's refusal to compel testimony from various persons,4 including: the victim;5 a sex offender counselor;6 a Deputy District Attorney;7 the superintendent of the State Correctional Institution at Frackville;8 a law enforcement officer;9 several court- appointed attorneys;l° several physicians;~ and one of three Superior Court Judges involved in the direct appeal of Defendant's conviction in the above-captioned matter.~2 After listening to Defendant's offers of proof at the July 23, 2003 hearing, this Court determined that the testimony Defendant hoped to elicit from the proposed witnesses had little bearing on the matter sub judice,~3 and that to 3 Petition 1,7; N.T. 7-8, P.C.R.A. Hr'g., July 23, 2003 (hereinafter N.T. __) (wherein Defendant testified that court-appointed counsel "is on two different cases of mine, she is on a direct appeal, as well as this P.C.R.A. appeal, and ! don't want her representing me on either case."). This Court granted Defendant's request to dismiss counsel from the above-captioned matter. Id 4 Petition 1,7. 5 N.T. 12. 6 Id. at 18, 22. Id. at 10. 8 Id. at 13. 9 Id. at 8. N.T. 15. Id. at 24, 26. Id. at 11. For example, Defendant proffered that the Superior Court Judge would confess to a conspiracy with the law enforcement officer. N.T. 11-12. However, nowhere in the PCRA petition does Defendant argue conspiracy. See generally, Motion for Post Conviction Collateral Relief, March 25, 2002. 2 allow such testimony would have been to permit a venture into issues outside the scope of the PCRA petition. This determination was not a question of law, but one of fact, and thus also fails the first requirement for an interlocutory appeal. As such, Defendant's petition to appeal this second order is also denied. ORDER OF COURT AND NOW, this 13th day of October, 2003, after careful consideration of Defendant's Petition for Permission To Appeal from Two interlocutory Orders, and for the reasons stated in the accompanying opinion, Defendant's Petition for Permission To Appeal from Two interlocutory Orders is DENIED. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Daniel J. Sodus, Esquire Senior Assistant District Attorney Nicholas A. Pracht, DV-0813 SCi-Graterford P.O. Box 246, Route 29 Collegeville, PA 19428-0246 Defendant, Pro Se ~4 Even if this issue involved a question of law for which a "substantial ground for difference of opinion" existed, the testimony Defendant sought to elicit does not pertain to the PCRA petition, and thus an immediate appeal of this order could not "materially advance" the matter to its "ultimate termination." Act of July 9, 1976, P.L. 586, § 2, as amended, 42 Pa. C.S. § 702(b). As such, this order also failed the second prong of the interlocutory appeal analysis. 3 4 COMMONWEALTH Vo IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NICHOLAS PRACHT NO. 98-0991 CRIMINAL TERM IN RE: PETITION FOR INTERLOCUTORY APPEAL BEFORE OLER, J. ORDER OF COURT AND NOW, this 13th day of October, 2003, after careful consideration of Defendant's Petition for Permission To Appeal from Two Interlocutory Orders, and for the reasons stated in the accompanying opinion, Defendant's Petition for Permission To Appeal from Two Interlocutory Orders is DENIED. BY THE COURT, J. Wesley Oler, Jr., J. Daniel J. Sodus, Esquire Senior Assistant District Attorney Nicholas A. Pracht, DV-0813 SCI-Graterford P.O. Box 246, Route 29 Collegeville, PA 19428-0246 Defendant, Pro Se