J. A11026/14 

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

v. :

:

JASON MERSCHAT, : No. 958 WDA 2013 

:

 Appellant :

Appeal from the Order Entered May 16, 2013, 

in the Court of Common Pleas of Allegheny County 

Criminal Division at No. CP-02-CR-0012256-2009 

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

v. :

:

JASON MERSCHAT, : No. 1452 WDA 2013 

:

 Appellant :

Appeal from the Order Entered August 21, 2013, 

in the Court of Common Pleas of Allegheny County 

Criminal Division at No. CP-02-CR-0012256-2009 

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

v. :

:

JASON MERSCHAT, : No. 1687 WDA 2013 

:

 Appellant :

Appeal from the PCRA Order, September 30, 2013, 

in the Court of Common Pleas of Allegheny County 

Criminal Division at No. CP-02-CR-0012256-2009 
J. A11026/14 

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BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED SEPTEMBER 12, 2014 

 This matter involves three consolidated appeals from orders entered 

by the Honorable Kathleen Durkin in the Court of Common Pleas of 

Allegheny County. 

HISTORY OF THE CASE 

 This case stems from a traffic stop which was initiated after appellant 

was observed speeding and a state trooper noticed appellant exhibiting 

various physical signs of being drunk and failing multiple field sobriety tests. 

Appellant was arrested and transported to the hospital for testing of his BAC, 

which was determined to be 0.195%. Appellant was charged with two 

counts of driving under the influence of alcohol, 75 Pa.C.S.A. § 3802(c) and 

§ 3802(a)(1), as well as one summary count of failing to drive within a 

single lane, two summary counts of exceeding the maximum speed limits, 

one summary count of careless driving, and one summary count of failing to 

use the safety belt system. 

 Before trial, appellant, through Gary Gerson, Esq., filed an omnibus 

motion asking the court to suppress evidence, which was denied, and a jury 

trial was held on July 30, 2010. The jury found appellant guilty of both 

counts of DUI, and Judge Durkin found appellant guilty of all summary traffic 

violations with the exception of failing to use the safety belt system. On 

November 3, 2010, he was sentenced at the first DUI count to a period of 
J. A11026/14 

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confinement of 90-180 days and a 4-year period of probation, with 

alternative housing and work release approved. 

 Appellant filed a motion for reconsideration, which was denied. A 

timely notice of appeal was filed, and on February 8, 2012, a panel of this 

court affirmed judgment of sentence. Commonwealth v. Merschat, 46 

A.3d 811 (Pa.Super. 2012). Appellant’s petition for allowance of appeal was 

denied on July 17, 2012. Commonwealth v. Merschat, 48 A.3d 1248 (Pa. 

2012). The procedural history concerning the three appeals which have 

been consolidated for our review follows. 

Appeal at No. 958 WDA 2013 - Motion for Early Termination of 

Probation 

 On February 19, 2013, appellant, through new counsel Jenna Rose 

Thorne, Esq., filed a motion for early termination of probation.1 The motion 

was denied on May 16, 2013. (Docket #40.) Thereafter, on June 7, 2013, 

current counsel, Arnold P. Bernard, Jr., entered his appearance and, on that 

same date, filed a notice of appeal from the denial of appellant’s motion. 

Appellant complied with the trial court order to file a concise statement of 

matters complained of on appeal, and the trial court has filed an opinion. 

(See Docket #44, 45, 46.) 

 

1

 On November 8, 2012, appellant had filed a petition for early parole; the 

motion was denied. 
J. A11026/14 

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Appeal at No. 1452 WDA 2013 - Illegal Sentence 

 On August 8, 2013, Attorney Bernard filed a motion to vacate illegal 

sentence. The motion was denied on August 21, 2013. A notice of appeal 

from this order was filed. Appellant argues that despite his pending appeal 

from the order denying termination of probation, the trial court had 

jurisdiction to correct the patent and obvious error. 

Appeal at No. 1687 WDA 2013 - Dismissal of PCRA Petition 

 Prior to the consolidation, on August 19, 2013, while the appeal at 

No. 958 WDA 2013 was pending and the appeal at No. 1452 WDA 2013 had 

yet to be taken, appellant filed a counseled petition, pursuant to the Post 

Conviction Relief Act (“PCRA”) through Michael Steven Sherman, Esq. 

Appellant’s petition presented three issues relating to the ineffective 

assistance of his trial counsel. On August 21, 2013, Judge Durkin filed 

notice of the court’s intention to dismiss appellant’s PCRA petition, stating 

that the court lacked jurisdiction to consider the petition due to appellant’s 

pending appeal at No. 958 WDA 2013. The petition was dismissed on 

September 30, 2013. On October 17, 2013, appellant filed a notice of 

appeal from this order. 
J. A11026/14 

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ANALYSIS 

 We will address the appeals in chronological order and first turn to the 

appeal at No. 958 WDA 2013, which concerns the motion for early 

termination of probation.2 

Sentencing is a matter vested in the sound discretion 

of the sentencing judge, and a sentence will not be 

disturbed on appeal absent a manifest abuse of 

discretion. An abuse of discretion is more than just 

an error in judgment and, on appeal, the trial court

will not be found to have abused its discretion unless 

the record discloses that the judgment exercised was 

manifestly unreasonable, or the result of partiality, 

prejudice, bias, or ill-will. 

Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa.Super. 2002), 

appeal denied, 820 A.2d 703 (2003) (citations omitted). 

 Appellant argues that the trial court erred in denying his motion for 

early termination of his probation. He claims he has been successfully 

rehabilitated and the aims of probation have been fulfilled. Appellant 

presented information to the court regarding his personal situation and his 

demonstrated good behavior and exemplary adjustment. In her opinion, 

Judge Durkin specifically noted that the statute expressly states that the 

court “may at any time terminate continued supervision or lessen or 

increase the conditions upon which an order of probation has been 

imposed.” 42 Pa.C.S.A. § 9771(a) (emphasis added). Judge Durkin did not 

 

2

 We disagree with the Commonwealth and find this was a final, appealable 

order under Pa.R.A.P. 341. 
J. A11026/14 

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find appellant’s arguments persuasive, and noted that appellant had not 

served “even a quarter of his probation” at the time he applied for early 

termination. Following our review, we cannot find that Judge Durkin abused 

her discretion in denying appellant’s motion. 

 The second appeal before this panel is at No. 1452 WDA 2013 and 

concerns the denial of appellant’s motion to vacate his allegedly illegal 

sentence. Appellant averred that pursuant to Commonwealth v. Musau, 

69 A.3d 754 (Pa.Super. 2013), the court was precluded from sentencing 

appellant to a penalty greater than 6 months for a second DUI conviction, 

and thus, his sentence of six months’ confinement followed by a 4-year 

period of probation was illegal.3 The trial court denied the motion, finding 

that it lacked jurisdiction due to the pending appeal at No. 958 WDA 2013. 

(Trial court opinion, 10/23/2013 at 2.) 

 At the outset, we note that this petition should have been treated as a 

PCRA petition; the PCRA is the sole means by which a defendant may obtain 

collateral relief. 42 Pa.C.S.A. § 9542; Commonwealth v. Johnson, 803 

A.2d 1291, 1293 (Pa.Super. 2002) (“We have repeatedly held that . . . any 

petition filed after the judgment of sentence becomes final will be treated as 

 

3

 Although Musau was decided after appellant’s sentencing hearing, because

it involved a first-time question of statutory interpretation, it is not a new 

rule of law, and generally would apply retroactively. Fiore v. White, 757 

A.2d 842, 848 (Pa. 2000) (“when we have not yet answered a specific 

question about the meaning of a statute, our initial interpretation does not 

announce a new rule of law”). 
J. A11026/14 

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a PCRA petition.”); Commonwealth v. Lutz, 788 A.2d 993, 996 n.7 

(Pa.Super. 2001) (holding that, generally, a filing that raises issues 

cognizable under the PCRA will be considered a PCRA petition); 

Commonwealth v. Guthrie, 749 A.2d 502, 503 (Pa.Super. 2000) 

(appellant’s “motion to correct illegal sentence” must be treated as PCRA 

petition).4

 The lawfulness of a probationary sentence, i.e., whether it 

exceeds the legal maximum, can be challenged via the PCRA. 42 Pa.C.S.A. 

§ 9543(a)(1)(i); 42 Pa.C.S.A. § 9543(a)(2)(vii). 

 Judge Durkin dismissed the motion to vacate illegal sentence filed by 

Attorney Bernard for lack of jurisdiction due to the pending appeal before 

this court at No. 958 WDA 2013. Appellant’s August 19, 2013 PCRA petition 

filed by Attorney Sherman was also dismissed by Judge Durkin for the same 

reason. Given that we have resolved the first appeal, we vacate these 

 

4

 Because appellant’s claim is cognizable under the PCRA, appellant must 

comply with the time requirements of Section 9545. Appellant’s judgment of 

sentence became final for purposes of the PCRA on Monday, October 15, 

2012, 90 days after the Pennsylvania Supreme Court denied review, and 

appellant did not seek an appeal with the United States Supreme Court. 

See 42 Pa.C.S.A. § 9545(b)(3); Rule 13, Rules of the United States 

Supreme Court (“a judgment becomes final at the conclusion of direct 

review, including discretionary review in the Supreme Court of the United 

States and the Supreme Court of Pennsylvania, or at the expiration of time 

for seeking the review.”). Thus, appellant’s counseled petition filed on 

August 8, 2013, was timely filed. 
J. A11026/14 

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orders and remand the matter to the trial court. This remand shall permit 

appellant to file an amended petition.5 

 Order denying appellant’s motion for early termination of probation is 

affirmed. Order dismissing appellant’s motion to vacate illegal sentence is 

vacated. Order dismissing appellant’s PCRA petition vacated. Remanded for 

proceedings consistent with this Memorandum. Appellant’s motion to 

correct/modify record pursuant to Pa.R.A.P. 1926 is denied as moot. 

Jurisdiction relinquished. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/12/2014 

 

5

 For the sake of clarity, nothing in this Memorandum should be interpreted 

as deciding the merits of appellant’s substantive claims regarding the 

appeals at No. 1452 WDA 2013 and No. 1687 WDA 2013.