IN THE COURT OF COMMON PLEAS OF CAMBRIA COUNTY, PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEALTH OF
PENNSYLVANIA, No. 1246-2014

vs.

KEITH REED,

Defendant
.
PETITION FOR PERMISSION TO APPEAL

And now comes the Defendant KEITH REED (Defendant), by and through his

Counsel, TIMOTHY S. BURNS, ESQ., and files the within PETITION FOR PERMISSION TO

APPEAL, averring as follows:

STATEMENT OF THE BASIS FOR THE

JURISDICTION OF THE SUPERIOR COURT

The right to an interlocutory appeal taken by permission is set forth by statute in 42 Pa.

Cons. Stat. Ann. 702(b) as follows:

When a court or other government unit, in making an interlocutory order in a matter in

which its final order would be within the jurisdiction of an appellate court, shall be of the
opinion that such order involves a controlling question of law as to which there is
substantial ground for difference of opinion and that an immediate appeal from the order
may materially advance the ultimate termination of the matter, it shall so state in such
order. The appellate court may thereupon, in its discretion, permit an appeal to be taken
from such interlocutory order.

Accordingly, the Defendant submits that the Superior Court has discretionary jurisdiction

to hear the within appeal, as per the following elements set forth in Commonwealth v. Dennis,

580 Pa. 95, 102, 859 A.2d 1270, 1275 (2004):

(1) The order involves a controlling question of law.

(2) There is a substantial ground for difference of opinion regarding the question of law;\

and;

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(3) An immediate appeal would materially advance the ultimate termination of the

matter.

THE TEXT OF THE ORDER IN QUESTION

NOW, this 1st day of February, 2017, it is hereby ORDERED AND DECREED

that Defendants Motion to Dismiss All Charges With Prejudice Pursuant to

Pennsylvania Rule of Criminal Procedure 600(D)(1) is DENIED. The Court will file a

full Opinion forthwith.

By The Court:

_________________________________
Linda Rovder-Fleming, J.

(A copy of said Order is attached hereto, and marked as Exhibit A.)

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 CONCISE STATEMENT OF THE CASE

The Defendant along with two other individuals have been charged with the

alleged homicide of Tony Lorenzo Phillips on March 30, 2014 in the parking lot of

Edders Den, a bar in Johnstown, Cambria County, Pennsylvania. As a result of the

alleged incident, Defendant was charged with the following on April 4, 2014:

(1)Criminal Homicide in the First Degree, 18 Pa. C.S.A. 2501(a);

(2)Criminal Conspiracy in the First Degree, 18 Pa. C.S.A. 903(a)(1);

(3)Hindering Apprehension or Prosecution, 18 Pa. C.S.A. 5105(a)(1);

(4)Obstructing Administration of Law or Other Law Enforcement, 18 Pa. C.S.A.

5101.

At a Preliminary Hearing on June 25, 2014, MDJ Musulin held Defendants charges

for Court, along with the other two Codefendants. On August 5, 2014, the Defendant was

formally arraigned.

On October 9, 2014, the Commonwealth filed a Motion to Consolidate the

Defendants case, along with the two other Codefendants. After conducting a hearing on

the matter, Judge Fleming issued an Opinion and Order on December 11, 2014 denying

the Commonwealths Motion, and ordered separate trials for each Defendant. On January

6, 2015, the Commonwealth filed a Motion for Reconsideration which the Trial Court

denied by Order dated January 13, 2015.

On January 12, 2015, the Commonwealth filed a Notice of Appeal to the Superior

Court of Pennsylvania, certifying that the Order from which the appeal was taken will

terminate or substantially handicap the prosecution. The Superior Court subsequently

directed the Commonwealth to file a brief on or before April 28, 2015. On April 28,

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2015, the Commonwealth filed a First Application for Extension of Time in which to

File Brief and Reproduced Record. By Order dated May 4, 2015, the Superior Court

directed the Commonwealth to file its brief on or before June 29, 2015. On June 29,

2015, the Commonwealth filed a Second Application for Extension of Time in Which to

File Brief and Reproduced Record. By Order dated July 7, 2015, the Superior Court

directed the Commonwealth to file its brief and reproduced record with eight (8) days.

The Commonwealth subsequently filed its brief and reproduced record in the Superior

Court on July 15, 2015.

On August 14, 2015, counsel for the Defendant filed a First Application for

Extension of Time in Which to File Brief and Reproduced Record. By Order dated

August 21, 2015, the Superior Court directed the Defendant to file his brief on or before

October 13, 2015. On October 13, 2015, the Defendant filed his brief with the Superior

Court. On October 27, 2015, the Commonwealth filed a Reply Brief with the Superior

Court.

On March 15, 2016, in a published decision, the Superior Court quashed and

remanded the Commonwealths appeal. On April 13, 2016, the Commonwealth filed a

Petition for Allowance of Appeal to the Pennsylvania Supreme Court. On October 13,

2016, the Supreme Court denied the Commonwealths Petition for Allowance of Appeal.

The Trial Court was divested of jurisdiction from January 12, 2015 through

November 3, 2016, because of the Commonwealths appeals and delays.

On December 21, 2016, the Defendant, who at the time was pro-se, filed a Motion to

Dismiss All Charges With Prejudice Pursuant to Pennsylvania Rule of Criminal

Procedure 600(D)(1). Your under-signed counsel was subsequently appointed to

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 represent the Defendant in the within proceedings, and filed a supporting brief on January

23, 2017.

On January 24, 2017, the Court conducted a lengthy hearing on the Defendants

Motion along with the other two Codefendants who also filed Rule 600 Motions. The

gist of the legal arguments presented by the Defendant, as well as the Codefendants was

that the time for the Commonwealths appeal should be counted against the

Commonwealth, because its appeal (that being a pre-trial appeal on a non-evidentiary

issue) was not proper in the first place, based upon the holdings in Commonwealth v.

Saunders, 483 Pa. 29, 394 A.2d 52 (1978), as well as Commonwealth v. Smith, 518 Pa.

524, 544 A.2d 943 (1988). The Defendant also relied on the holding in Commonwealth

v. Woodard/Reed/Cambric, 136 A.3d 1003 (2016), which is the decision quashing the

Commonwealths case sub judice.

On February 1, 2017, the Trial Court issued an Order denying the Defendants

Rule 600 Motion, with an Opinion to be filed forthwith.

THE CONTROLLING QUESTION OF LAW

The controlling issue of law before the Court is as follows:

For Rule 600 purposes, does the time it takes for the Commonwealth to take a

pre-trial appeal raising a non-evidentiary issue to the Superior Court, along with the time it

takes for a discretionary Petition for Allowance of Appeal to the Supreme Court count against

the Commonwealth when said appeals are quashed or denied, especially in light of the

holdings in Commonwealth v. Saunders, 483 Pa. 29, 394 A.2d 52 (1978), as well as

Commonwealth v. Smith, 518 Pa. 524, 544 A.2d 943 (1988) which clearly state that the issue

appealed in the within case by the Commonwealth was not a pre-trial appealable issue.

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 CONCISE STATEMENT OF THE REASONS WHY A

SUBSTANTIAL GROUND EXISTS FOR A DIFFERENCE OF OPINION ON THE

QUESTION AND WHY AN IMMEDIATE APPEAL MAY MATERIALLY ADVANCE

THE TERMINATION OF THE MATTER

The Defendant respectfully submits that there does exist a difference of opinion regarding

the Controlling Question of Law herein, and an immediate appeal may materially advance the

termination of the matter, as an immediate appeal will determine whether the Defendants case

will proceed to trial or else be dismissed due to Rule 600.

The Defendant notes that in Commonwealth v. Woodard/Reed/Cambric, 136 A.3d 1003

(2016) (a copy of which is attached hereto, and marked as Exhibit B), the Superior Court held

that the Trial Courts denial of the Commonwealths Motion for Joinder did not terminate or

substantially handicap the prosecution, and thus was not an appealable interlocutory order.

Woodard at 1003. The Court noted that it will not accept blindly the Commonwealths

certification of substantial hardship when an appeal is sought for non-evidentiary interlocutory

orders. Id. The Court further held that:

Here, the Commonwealth is free to seek conviction on all counts, against each
defendant, in three separate trials. Therefore, denial of the motion for joinder does
not terminate or substantially handicap the prosecution and is not appealable
under Rule 311(d). Id. To expand Rule 311(d) to encompass such interlocutory
review would be to disturb the orderly process of litigation. Strict application of
the Rule assures that trials will go forward as scheduled. Id. at 1007.

In other words, the Court in Woodward found that the Commonwealths certification that

the lower courts order either terminated or substantially handicapped the prosecution was

meritless, and more importantly, the issue that the Commonwealth raised was not an appealable

issue in the first place.

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 Next, the Defendant notes that in Commonwealth v. Saunders, 483 Pa. 29, 394 A.2d 522

(1978) (a copy of which, is attached hereto, and marked as Exhibit C), the Court found that a

Trial Court Order, which refused to consolidate for trial charges against a defendant arising out

of two purse snatchings occurring within one hour of each other, was not final because the

Commonwealth was still free to seek convictions on all counts, although two separate trials

would be required, thus the Supreme Court did not have jurisdiction over the appeal of the

Commonwealth.

The decision in Saunders was relied upon by the Supreme Court in Commonwealth v.

Smith, 518 Pa. 524, 544 A.2d 943 (1988) (a copy of which is attached hereto, and marked as

Exhibit D), wherein the Supreme Court reversed a Superior Court ruling, holding that the Trial

Courts Order granting severance of two criminal informations was not appealable (in Smith, the

Defendant was charged with aggravated assault and homicide of two separate individuals; the

Commonwealth moved to consolidate the cases; wherein, the Defendant objected, and the Trial

Court agreed with the Defendant). In its holding, the Court in Smith relied on the decision in

Saunders:

The order here appealed from granted the severance of two criminal informations.
In Commonwealth v. Saunders, 483 Pa. 29, 394 A.2d 522 (1978), we addressed
the appealability of such an order and had no problem in concluding that such an
order is interlocutory and thus not appealable. The reasoning for our decision was
that the Commonwealth was free to seek conviction on both counts in two
separate trials. Thus, the finality aspect and the ensuing prejudice inherent in
granting a suppression motion is not present when faced with a severance order.

The appeal being interlocutory and no specific authority having been cited
demonstrating that jurisdiction has been conferred upon this Court, there exists no
jurisdiction for us to consider the Commonwealth appeal. The order of the
Superior Court is reversed and the matter is remanded to the Court of Common
Pleas of Allegheny County for trial.

Smith at 527-8.

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 While there is no question that the issue appealed by the Commonwealth in this

case as interpreted by various decisions of the Pennsylvania was a non-appealable issue

which did not handicap nor terminate the Commonwealths prosecution of the Defendant, the

question that remains which provides a significant difference of opinion is whether the said

time the Commonwealths erroneous appeal took should be held against the Commonwealth

for Rule 600 purposes. The appellate courts are devoid of any case law on this issue when it

pertains to non-evidentiary pre-trial appeals (the Defendant does recognize that for pre-trial

evidentiary appeals, such as the denial of a suppression motion, that said time does not count

against the Commonwealth). In fact, Judge Fleming even asked at the January 27, 2017

hearing on this matter, if there was any case law that said such time in this matter would be

held against the Commonwealth, since the Commonwealth lost its appeal on a non-

evidentiary pre-trial appeal issue. As such, the Defendant submits that we have entered a

realm of legal first impression for which the Superior Court must rule.

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 WHEREFORE, and for the reasons so stated, the Defendant would respectfully request

that the Court grant his Petition for Permission to Appeal the Courts Order of February 1, 2017,

and certify said Order as an appealable Order. Further, the Defendant would ask that said Order

be amended per 42 Pa. Cons. Stat. Ann. 702(b), to include the following language: [t]hat such

order involves a controlling question of law as to which there is substantial ground for difference

of opinion and that an immediate appeal from the Order may materially advance the ultimate

termination of the matter.

Respectfully submitted,

__________________________
Timothy S. Burns, Esq.
Counsel for the Defendant.

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 IN THE COURT OF COMMON PLEAS OF CAMBRIA COUNTY, PENNSYLVANIA
CRIMINAL DIVISION

COMMONWEALTH OF
PENNSYLVANIA, No. 1246-2014

vs.

KEITH REED,

Defendant
.

SCHEDULING ORDER

AND NOW, this _____ day of _________________, 2017, upon review of the

Defendants PETITION FOR PERMISSION TO APPEAL, a hearing on this matter is scheduled

for the ______ day of _____________________, 20_______, in Courtroom No. _____, at _____

oclock _____.m., Cambria County Courthouse before the Honorable

Judge____________________________.

BY THE COURT:

____________________________ J.

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 IN THE COURT OF COMMON PLEAS OF CAMBRIA COUNTY, PENNSYLVANIA
CRIMINAL DIVISION

COMMONWEALTH OF
PENNSYLVANIA, No. 1246-2014

vs.

KEITH REED,

Defendant
.

ORDER

AND NOW, this ________ day of ___________________________, 2017, it is hereby

ORDERED, DIRECTED and DECREED, that the Defendant Keith Reeds Petition for

Permission to Appeal this Courts Order of February 1, 2017 is GRANTED; an amended,

certified Order in compliance with 42 Pa. Cons. Stat. Ann. 702(b) shall be forthcoming.

BY THE COURT:

____________________________________
J.

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 IN THE COURT OF COMMON PLEAS OF CAMBRIA COUNTY, PENNSYLVANIA
CRIMINAL DIVISION

COMMONWEALTH OF
PENNSYLVANIA, No. 1246-2014

vs.

KEITH REED,

Defendant
.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing PETITION FOR

PERMISSION TO APPEAL, was served on the following party as follows this 20th day of

February 2017:

Heath Long, Esq.

Scott Lilly, Esq.
Jessica Aurandt, Esq.
District Attorney of Cambria County
200 South Center Street
Cambria County Courthouse
Ebensburg, PA 15931

Keith Reed
Inmate
Cambria County Prison
425 Manor Drive
Ebensburg, PA 15931

BY: _________________________
Timothy S. Burns, Esquire

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