J-A08012-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

BRIAN DAVID SMITH,

Appellant No. 1644 MDA 2014

Appeal from the Order Entered September 11, 2014

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0005199-2013

BEFORE: SHOGAN, WECHT, and STRASSBURGER,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED APRIL 17, 2015

Appellant, Brian David Smith, appeals from the order granting the 

Commonwealth’s motion in limine to allow certain testimonial evidence at 

trial. For reasons that follow, we quash the appeal. 

Appellant was charged with involuntary deviate sexual intercourse with 

a child, aggravated indecent assault, indecent exposure, corruption of 

minors, indecent assault and endangering the welfare of children arising 

from incidents involving S.D. The Commonwealth subsequently filed a 

notice under Pa.R.E. 404(b), indicating its intent to introduce evidence of 

prior crimes, wrongs, or acts: specifically, evidence of the circumstances 

surrounding Appellant’s conviction of indecent assault in 1997. This 

____________________________________________

*

 Retired Senior Judge assigned to the Superior Court.
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evidence would consist of testimony from the victim in that case, K.S., 

concerning assaults committed upon her by Appellant when she was seven 

or eight years old. The Commonwealth also filed a motion in limine seeking 

a court ruling on the admissibility of this same evidence. 

Following a hearing and submission of briefs, the trial court granted 

the Commonwealth’s motion on September 11, 2014, ruling that the 

evidence was admissible. On September 30, 2014, Appellant filed a notice 

of appeal, a Pa.R.A.P. 1925(b) statement, and a motion to reconsider. The 

trial court subsequently denied the motion for reconsideration for lack of 

jurisdiction based upon the notice of appeal. The trial court issued an order 

dated October 27, 2014, dismissing1 Appellant’s notice of appeal on the 

basis that Appellant failed to timely file a Pa.R.A.P. 1925(b) statement,2and 

alternately, that the appeal was from an interlocutory order. 

By order filed November 7, 2014, this Court ordered Appellant to show 

cause as to how this appeal satisfied the requirements of Pa.R.A.P. 313 and 

why the appeal should not be quashed as taken from an unappealable order. 

Appellant filed a response on November 24, 2014, in which he provided 

support for his assertion that the instant order was an appealable collateral 

____________________________________________

1 We note that although the trial court judge stated that he was dismissing 

Appellant’s notice of appeal, trial court judges are unable to dismiss a notice 

of appeal. 

2 As noted, Appellant filed a Pa.R.A.P. 1925(b) statement simultaneously 

with the notice of appeal.
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order pursuant to Pa.R.A.P. 313. By order filed December 1, 2014, this 

Court discharged the show-cause order and referred the issue to the merits 

panel for consideration.

Appellant presents the following issues for our review:

1. “Did the Honorable Trial Court err in granting a Motion in 

Limine permitting testimony of K.S., concerning the sexual 

assault committed upon her sixteen years ago by the defendant 

in his present jury trial?”

2. “Will admission of this remote bad act evidence be more 

prejudicial than probative, and ultimately violate the defendant’s 

right to due process?”

3. “If the bad act evidence is properly admitted, did the 

Honorable Trial Court err by not limiting introduction of K.S.’s 

testimony or by omitting a curative instruction for the jury?”

Appellant’s Brief at 3 (verbatim).

Before addressing the merits of Appellant’s claims, we must determine 

whether this matter is properly before us. “We do not have jurisdiction over 

non-appealable orders.” Commonwealth v. Frey, 41 A.3d 605, 609 (Pa. 

Super. 2012). An order is appealable if it is: (1) a final order, see Pa.R.A.P. 

341-342; (2) an interlocutory order appealable by right or permission, see

42 Pa.C.S. § 702(b); Pa.R.A.P. 311-312, 1311-1312; or (3) a collateral 

order, see Pa.R.A.P. 313. See also Frey, 41 A.3d at 609. 

While Appellant does not address the appealability of the order before 

us in his appellate brief, he did so in his response to this Court’s show-cause 

order. In it, Appellant argued that the order at issue is a collateral order, 

and as such, it is properly before us for review. Collateral Order Doctrine As 
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Applied To September 11, 2014 Order, 11/24/14, at 1-6. Appellant 

contends that the requisite three prongs of Pa.R.A.P. 313 have been met. 

Id. at 3-6. 

Under Pa.R.A.P. 313(a), an appeal may be taken as of right from a 

collateral order of an administrative agency or lower court. Rule 313(b) 

permits a party to take an immediate appeal as of right from an otherwise 

unappealable interlocutory order if the order meets the three following 

requirements: 1) the order must be separable from and collateral to the 

main cause of action; 2) the right involved must be too important to be 

denied review; and 3) the question presented must be such that if review is 

postponed until after final judgment, the claim will be irreparably lost. 

Pa.R.A.P. 313(b); Commonwealth v. Mitchell, 72 A.3d 715, 718 (Pa. 

Super. 2013). “All three prongs of Rule 313(b) must be met before an order 

may be subject to a collateral appeal; otherwise, the appellate court lacks 

jurisdiction over the appeal.” Commonwealth v. Harris, 32 A.3d 243, 248 

(Pa. 2011). Additionally, “we construe the collateral order doctrine 

narrowly. In adopting a narrow construction, we endeavor to avoid 

piecemeal determinations and the consequent protraction of litigation.” 

Commonwealth v. Sabula, 46 A.3d 1287, 1291 (Pa. Super. 2012). 

Specifically, Appellant argues that the first element of separability is 

met because “the issue of having a prior victim testify at a defendant’s 

current trial is absolutely separate from the merits of the currently charged 
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offense.” Collateral Order Doctrine As Applied to September 11, 2014 Order, 

11/24/14, at 3. Appellant maintains that whether Appellant is guilty of the 

instant charges is separable from the incident involving K.S.’s assault and 

her related testimony. Id. Appellant also contends that the second prong, 

requiring that the right is too important to be denied review, is met because 

the admissibility of this evidence impacts Appellant’s right to due process 

and a fair trial. Id. at 4. Appellant asserts that it is critical that a criminal 

defendant “have appellate review of an order that may affect the outcome of 

a jury trial.” Id. at 5. Appellant maintains that it is “more efficient, and fair 

to the accused to resolve these issues prior to the trial.” Id. As to the third 

element, Appellant argues that it is met because postponement of review 

until final judgment will result in the claim being irreparably lost. Id. at 5. 

Once the trial commences and K.S. presents her testimony, the disclosure 

cannot be undone and review is moot, according to Appellant. Id. Appellant 

further contends that the cost to Appellant to defend himself at trial and on 

appeal following entry of a final order is “staggering,” and as such, he should 

not have to wait until a final order has been entered to have this matter 

addressed. Id. at 5-6. 

In the case sub judice, assuming arguendo that the first two elements 

are met, Appellant’s claim fails to satisfy the third element. With regard to

the third element, this Court has explained:

To satisfy this element, an issue must actually be lost if review is 

postponed. Orders that make a trial inconvenient for one party 
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or introduce potential inefficiencies, including post-trial appeals 

of orders and subsequent retrials, are not considered as 

irreparably lost. An interest or issue must actually disappear 

due to the processes of trial.

Sabula, 46 A.3d at 1293. 

Any alleged inefficiencies with regard to a trial conducted prior to 

appellate review of the trial court’s order does not result in Appellant’s claim 

being irreparably lost. Appellant will not lose the opportunity to challenge 

the admission of testimony; he simply must wait to do so until a judgment 

of sentence has been imposed. Further, if Appellant is acquitted, the claim 

will be moot. Conversely, should Appellant be convicted, he has the option 

of filing a direct appeal and during that appeal, may challenge the admission 

of this testimony. If he prevails on that challenge, his remedy would be a 

new trial and any prejudice resulting from introduction of this testimony at 

the previous trial will no longer exist. As noted, the fact that inefficiencies 

may occur does not result in a claim being irreparably lost and, therefore, 

does not satisfy the third element of the collateral order test. Sabula, 46 

A.3d at 1293. 

Because Appellant has failed to satisfy the third prong of the collateral 

order test, we cannot agree with Appellant’s assertion that this order is an 

appealable collateral order. Harris, 32 A.3d at 248 (stating that all three 

prongs of Rule 313(b) must be met before an order may be subject to a 

collateral appeal). Therefore, we cannot reach the merits of Appellant’s 

issues because this is an interlocutory appeal and we lack jurisdiction. Id.
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Appeal quashed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/17/2015