Com. v. Solomon, I.
CourtSuperior Court of Pennsylvania
Date FiledMay 21, 2026
Docket2790 EDA 2024
JudgeKunselman
StatusPublished
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Full Opinion
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2026 PA Super 106
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
IYANU ELIJAH SOLOMON : No. 2790 EDA 2024
Appeal from the Order Entered September 5, 2024
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0001527-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
IYANU ELIJAH SOLOMON : No. 2894 EDA 2024
Appeal from the Order Entered September 5, 2024
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0001527-2020
BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.*
DISSENTING OPINION BY KUNSELMAN, J.: FILED MAY 21, 2026
I respectfully dissent. My learned colleagues in the Majority vacate the
order denying the Commonwealth’s motion to remove Iyanu Elijah Solomon
from the Accelerated Rehabilitation Disposition (“ARD”) program. However,
this Court has held that orders denying removal from ARD are non-appealable,
interlocutory orders. See Commonwealth v. Worzel, 1457 EDA 2022, 2023
WL 3018876 (Pa. Super. 2023) (non-precedential decision). As a member of
the unanimous panel that decided Worzel, I stand by our decision.
Additionally, this Court has cited Worzel with approval in Commonwealth v.
____________________________________________
* Former Justice specially assigned to the Superior Court.
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Myers, 325 A.3d 790, 794 n.2 (Pa. Super. 2024). Therefore, I would deny
the Commonwealth’s petition for allowance of appeal (docketed at 2790 EDA
2024) and would quash its notice of appeal (docketed at 2894 EDA 2024).
According to the Commonwealth’s factual allegations, on February 10,
2020, Mr. Solomon was a freshman at Villanova University and a player on the
football team. Campus police caught him and some of his teammates stealing
clothing from an equipment room. The police arrested and charged them with
burglary and related offenses.1
On August 11, 2020, the trial court admitted Mr. Solomon to ARD.
In March of 2021, the campus police filed three new charges against Mr.
Solomon and rearrested him. A few weeks later, based on those new charges,
the Commonwealth moved for Mr. Solomon’s removal from ARD.
Mr. Solomon failed to appear for an April 28, 2021 ARD-removal
hearing, and the trial court granted the Commonwealth’s motion. A week
later, on May 5, 2021, Mr. Solomon filed a motion to open the order, because
he never received notice of the April 28 hearing. This 2020 case was put on
the criminal trial list, but it was repeatedly continued while the 2021 case on
the new charges proceeded. A jury eventually acquitted Mr. Solomon of one
of the 2021 charges, and the Commonwealth filed nolle prosequi on the
others.
____________________________________________
1 See 18 Pa.C.S.A. §§ 3502(a)(4), 3503(a)(11), 3921(a), and 3925(a).
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On May 3, 2024, this 2020 case resumed. The court scheduled a hearing
on Mr. Solomon’s outstanding motion to open the April 28, 2021 Order
removing him from ARD. Both sides submitted briefs prior to the hearing.
Seven weeks later, the trial court convened a hearing on Mr. Solomon’s
motion to open. At the beginning of the hearing, the trial court asked whether
the Commonwealth could prove that Mr. Solomon received notice of the
original removal hearing. See N.T., 6/27/24, at 3-4. The Commonwealth
admitted it could not, and the court said, “if you don’t have notice, then it
takes us back in time, so . . . are you all prepared to do the removal hearing
today . . . ?” Id. at 6. The Commonwealth responded that it was prepared
to argue its motion to remove Mr. Solomon from ARD. See id. at 7-8. Thus,
everyone agreed that the April 28, 2021 Order removing Mr. Solomon from
ARD was either opened or void ab initio, due to Mr. Solomon’s lack of notice.
The Commonwealth said that its position in 2021 was that Mr. Solomon
should be removed from ARD, because of his subsequent charges. Given that
those charges were now dismissed, the Commonwealth found itself in a
different procedural posture. Id. at 8. Nonetheless, while those charges were
pending, the Commonwealth investigated and discovered that Mr. Solomon
had a juvenile adjudication that he did not disclose in his original application
for ARD. Based on Mr. Solomon’s failure to disclose that offense, the
Commonwealth claimed that it would not have approved him for ARD. For
this reason, the Commonwealth again asked that Mr. Solomon be removed
from ARD.
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Specifically, the Assistant District Attorney said:
If we find out that information [i.e. that there was a prior
juvenile adjudication] when someone is in the [ARD]
program, we would have filed for a removal hearing and
asked that he be terminated from the program at that time,
so . . . I am asking that the Court stand on the removal that
was – well, I won’t say stand on removal, because we’re
doing a new hearing, but I would ask that he be removed
from the program at this time.
Id. at 10 (emphasis added).
The court then heard arguments from defense counsel that the victim,
Villanova University, did not object to Mr. Solomon remaining in ARD. Defense
counsel also explained that Mr. Solomon did not lie on the ARD application,
given the language of the questions on the ARD form. After hearing extensive
arguments from both sides, the court took the matter under advisement.
On September 5, 2024, the trial court denied the Commonwealth’s
motion to remove Mr. Solomon from ARD. The Commonwealth petitioned for
allowance of appeal to this Court. It also filed a notice of appeal, based on its
claim that the trial court’s denial of removal would substantially handicap the
Commonwealth’s prosecution of Mr. Solomon. 2
Unlike the Majority, I conclude that this Court lacks appellate jurisdiction
over the trial court’s September 5, 2024 Order denying the Commonwealth’s
motion to remove Mr. Solomon from ARD. Because “the question of
appealability implicates the jurisdiction of this Court, the issue may be raised
____________________________________________
2 See Pa.R.A.P. 311 and 313.
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by this Court sua sponte.” Commonwealth v. Horn, 172 A.3d 1133, 1135
(Pa. Super. 2017). “Jurisdiction is purely a question of law; the appellate
standard of review is de novo, and the scope of review plenary.”
Commonwealth v. Seiders, 11 A.3d 495, 496–97 (Pa. Super. 2010).
Generally, a party may appeal only from a final judgment of sentence,
and this Court will quash an appeal from any prior interlocutory orders. See
Commonwealth v. Getz, 598 A.2d 1309, 1310 (Pa. 1991); see also 42
Pa.C.S.A. § 742; Pa.R.A.P. 341(a). A final order is any order that “disposes of
all claims and of all parties.” Pa.R.A.P. 341(b). This rule prevents undue delay
and avoids piecemeal appellate review, which disrupts the orderly proceeding
of litigation in a trial court. See Commonwealth v. Scott, 578 A.2d 933,
941 (Pa. Super. 1990).
We have said, “An ARD determination provides no exception to the
general rule” regarding finality of orders. Getz, 598 A.2d at 1310 (citations
omitted). “Rather, it constitutes a non-final proceeding in which the resolution
of the criminal prosecution is merely held in abeyance. Acceptance of ARD is
an interlocutory matter and consequently is not appealable.” Id.; see also
Horn, 172 A.3d at 1137-38 (citing Getz and quashing the defendant’s appeal
from an order denying his petition to be removed from ARD).
Further, the Rules of Criminal Procedure place the authority to remove
a person from the ARD program in the sole discretion of the trial court. When
the Commonwealth alleges a violation of ARD, the trial court shall conduct a
hearing on the issue. If the court finds that “the defendant has committed a
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violation of a condition of the program, the judge may order . . . that the
program be terminated . . . .” Pa.R.Crim.P. 318(C) (emphasis added). The
drafters’ use of the permissive word “may” also impliedly grants the judge the
authority not to terminate the program. “No appeal shall be allowed from
such order.” Id.
In fact, we have held that the Commonwealth has no right to take an
interlocutory appeal from an order refusing to remove a defendant from ARD
in Commonwealth v. Worzel, 1457 EDA 2022, 2023 WL 3018876 (Pa.
Super. 2023) (non-precedential decision). This Court said an order “denying
the Commonwealth’s motion to terminate [a defendant’s] participation in ARD
. . . is not an appealable order.” Id. *2. Hence, the Worzel Court quashed
the Commonwealth’s appeal. I find Worzel persuasive and would follow its
holding.
The Majority dismisses Worzel as unpersuasive, because, in Worzel,
we “did not discuss whether the Commonwealth’s appeal was proper under
[Pennsylvania Rule of Appellate Procedure] 313 because the Commonwealth
failed to raise Rule 313 in its notice of appeal.” Majority Opinion, ___ A.3d.
___, ___ (Pa. Super. 2026). The fact that the Commonwealth “failed” to
assert Rule 313 as a basis for our appellate jurisdiction in Worzel is telling,
and it should give the Majority pause. There, the Commonwealth apparently
recognized that an order denying its motion to remove someone from ARD
does not satisfy the test for appealability under Rule 313. As a result, the
Commonwealth did not bother citing to that Rule in Worzel.
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Under Rule 313, an interlocutory order is immediately appealable if it
meets the definition of a collateral order. “A collateral order is an order
separable from and collateral to the main cause of action where the right
involved is too important to be denied review and the question presented is
such that if review is postponed until final judgment in the case, the claim will
be irreparably lost.” Pa.R.A.P. 313(b). The order in question fails to satisfy
the third prong of the test: i.e., “the claim will be irreparably lost.” Id.
The Majority asserts that an order denying the Commonwealth’s motion
to remove someone from ARD meets the third prong of the test, but it does
not prove that assertion. See Majority Opinion, ___ A.3d at ___. In fact, the
Majority does not even make a definitive pronouncement on this prong.
Instead, the best the Majority can offer is the speculation that “the
Commonwealth’s right to contest [Mr. Solomon’s] reinstatement into ARD
most likely will be irreparably lost if appellate review is delayed until the end
the of this case.” Id. (emphasis added).
Critically, “mostly likely lost” is not the test for immediate appealability
under Rule 313(b). For the collateral-order rule to apply, this Court must find
that “the claim will be irreparably lost.” Pa.R.A.P. 313(b) (emphasis added).
By stretching the Rules of Appellate Procedure, the Majority gives the
Commonwealth a right to an interlocutory appeal that would otherwise not be
allowed. Furthermore, even if “most likely will be irreparably lost” were the
test for appealability under Rule 313(b) (and it’s not), the order in question –
denying the Commonwealth’s motion for removal – would not meet that test
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either. As I explain below, the Commonwealth can appeal from the final order
in the case, i.e., the order dismissing the charges and expunging Mr.
Solomon’s record.
The Majority misconstrues the order on appeal. The Majority apparently
thinks that the appealed-from order involves “the Commonwealth’s right to
contest [Mr. Solomon’s] reinstatement . . . .” Majority Opinion, ___ A.3d at
___. As the procedural posture of this case makes clear, however, the
Commonwealth conceded that the court had improperly removed Mr.
Solomon from ARD without notice on April 28, 2021. Therefore, at the start
of the June 27, 2024 hearing, all the parties agreed that the April 28, 2021
order was either opened or was void ab initio. The trial court then conducted
a new hearing on the Commonwealth’s motion to remove Mr. Solomon from
ARD. This was not a hearing on Mr. Solomon’s motion to be reinstated to ARD.
Thus, the Majority’s Rule 313(b) analysis focused upon a right not at issue in
the case. Because Mr. Solomon was not seeking reinstatement to ARD, the
issue of the Commonwealth’s need or right to “challenge reinstatement” is not
before us in this appeal. Indeed, the Majority’s entire analysis of Rule 313 is
based on a right not before us.
According to the Majority, if Mr. Solomon “completes the ARD program
satisfactorily, he will have the right to obtain dismissal of the burglary charge
and expungement of this charge from his arrest record.” Id. “Thus, if the
Commonwealth does not exercise its right to contest reinstatement now, and
if the court’s ruling below was erroneous, the ruling likely cannot be undone
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later.” Id. (emphasis added). The Majority cites no law to support its
conclusory statements, and, in fact, there is none.
As stated above, our appellate rules allow a party to appeal from a final
order in a case; a final order is one that disposes of all claims and all parties.
See Pa.R.A.P. 341(b).
In an ARD proceeding, an order is not final until the court grants the
defendant’s motion to dismiss the charges. Upon successfully completing
ARD, “the defendant may move the court for an order dismissing the charges.”
Pa.R.Crim.P. 319. The Commonwealth may file an objection to that motion.
See id. If the trial court grants the motion to dismiss the charges over the
Commonwealth’s objection, that order is final, because it disposes of all the
Commonwealth’s claims against all the parties. See Myers, supra, (holding
that the trial court’s order dismissing charges after ARD is a final, appealable
order and the trial court’s order denying removal from ARD is not immediately
appealable based on Horn and Worzel. In Myers, the trial court sua sponte
granted the defendant’s motion to dismiss the charges without giving the
Commonwealth an opportunity to object. This Court remanded for a hearing
to allow the Commonwealth to exercise its right to object to the dismissal. The
Commonwealth also wanted to challenge the court’s prior order declining to
find the defendant in violation of ARD. We declined to rule on that issue in
the appeal, because given our disposition to remand for a hearing on the
motion to dismiss, the ARD issue was interlocutory and not yet appealable.
Here, I believe we are bound by Myers and must quash.
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Once the court enters an order dismissing the charges against a
defendant after completion of the ARD program, the prior order denying the
Commonwealth’s motion to remove a defendant from ARD can be brought into
question for appellate review. A “notice of appeal filed from the entry of the
final order in an action draws into question the propriety of any prior non-final
orders.” Rohm & Haas Co. v. Lin, 992 A.2d 132, 149 (Pa. Super. 2010).
Then, on appeal, if this Court determines that the trial court erred in denying
removal from ARD, we could – like any other final order – reverse the order
dismissing the charges and reverse or vacate the order denying the
Commonwealth’s motion to remove the defendant from ARD. The prosecution
of the defendant would resume. In other words, if we delay consideration of
an order denying the Commonwealth’s motion to remove someone from ARD,
until after the final order, the Commonwealth’s claim that the trial court
erroneously denied its motion will not “be irreparably lost.” Pa.R.A.P. 313(b);
Myers, supra.
The Majority disagrees with my analysis, because it thinks that I am
suggesting that the Commonwealth must wait until the court grants a
defendant’s motion to dismiss the charges before it can file a motion to
remove a defendant from ARD. To be clear, that is not what I am suggesting.
The procedure that I am suggesting is that the Commonwealth do
exactly what it did in this case, which is to file the motion to remove
immediately when it believes it has grounds for removal. Here, the
Commonwealth filed a motion to remove under Pa.R.Crim.P. 318, and the trial
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court denied it. I agree with the Majority that the Commonwealth must file
a timely motion for removal “during the period of the program” under Rule
318 to preserve the issue of removal from ARD for appeal.
The fact that the Commonwealth makes the motion during the program,
however, does not render the order denying that motion a final order.
Instead, I suggest that the Rules mandate that the Commonwealth must wait
to appeal from that order.
Hence, the alleged “flaw in [my] argument” that the Majority believes it
has identified, does not exist. Majority Opinion, ___ A.3d ___, ____. I am
not setting up a waiver trap for the Commonwealth. Quite the opposite. In
my analysis, I assume that the Commonwealth filed a timely motion for
removal during the ARD period, and the trial court denied that motion, so
that the Commonwealth has preserved the issue. Then, the Commonwealth
may renew the objection based on its prior motion to remove (not unlike a
post-sentence motion), when the defendant moves for dismissal of the
charges. If the trial court overrules the Commonwealth’s objection, the
Commonwealth can appeal from that final order with its claim of error as to
removal properly preserved.
Here, it is clear beyond any doubt that the September 5, 2024 Order,
denying the Commonwealth’s motion to remove Mr. Solomon from ARD, does
not satisfy the third and final prong of the definition of a collateral order. Thus,
in Worzel, supra, neither the Commonwealth nor our panel mistakenly failed
to invoke Pa.R.A.P. 313 as a basis for appellate jurisdiction. It was clear to all
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involved in Worzel that Rule 313 does not apply to an order refusing to
remove a defendant from ARD, because such an order is not collateral. See
Pa.R.A.P. 313(b).
By misclassifying the September 5, 2024 Order as a collateral order, the
Majority has expanded the appellate jurisdiction of this Court and disregarded
the policy of the Supreme Court of Pennsylvania disfavoring piecemeal
appeals. As Chief Justice Todd has made abundantly clear, we are to “construe
the collateral order doctrine narrowly . . . to avoid piecemeal determinations
and the consequent protraction of litigation.” Rae v. Pennsylvania Funeral
Directors Association, 977 A.2d 1121, 1129 (Pa. 2009) (quoting Sullivan
v. Philadelphia, 107 A.2d 854, 855 (Pa. 1954)). “Such piecemeal litigation
imposes a substantial burden on the orderly administration of justice.” Id.
(some punctuation and citations omitted).
Further, the Majority’s reliance upon Commonwealth v. Boos, 620
A.2d 485 (1993) (“Boos II”), and Commonwealth v. Shearer, 882 A.2d
462 (Pa. 2005), does not persuade me otherwise. First, in Boos, the
Commonwealth filed its appeal to this Court in 1989 – i.e., before the appellate
rules changed the definition of what constitutes a “final order.” See
Commonwealth v. Boos, 02783 PHL 89, (Pa. Super. 1990), reversed, 620
A.2d 485 (Pa. 1993) (non-precedential decision) (“Boos I”). “Prior to 1992,
there were cases that deemed an order final if it had the practical effect of
putting a party out of court, even if the order did not end the litigation as to
all claims and all parties.” Pa.R.A.P. 341 Comment. Now, that Rule restricts
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appeals to a “final order,” which is defined as an order that “dispose of all
claims and all parties.” Pa.R.A.P. 341(b)(1). In the present appeal, the order
from which the Commonwealth appealed does not satisfy the modern
definition of a “final order,” because the order disposed of no claims and no
parties.
Admittedly, Boos II stated in a footnote, “The instant order terminated
the Commonwealth’s prosecution of the DUI charge against appellee. The
order, therefore, is final for the purpose of appeal.” Boos II, 620 A.2d at 487
n.5. However, because the Commonwealth took its appeal in that case in
1989, the Commonwealth appealed under the former version of the Rules.
Hence, when the Supreme Court adopted a new definition of “final
order,” the holding of the Boos II footnote became obsolete. The new Rule
341(b)(1) and its definition of “final order” have legislatively supplanted the
statement on finality in the Boos II footnote. Indeed, because Boos II was
decided in February of 1993 and the new Rule 341(b)(1) was already in effect,
it was interpreting a Rule that no longer existed. Hence, the precedential
value of Boos II encompasses only appeals taken prior to when the new Rule
341(b)(1) went into effect in 1992.
Here, the Commonwealth appealed on October 4, 2024, well after the
new definition of “final order” became the law. Thus, the Commonwealth took
the instant appeal several decades after the new Rule 341(b)(1) went into
effect. The Boos II footnote, addressing finality under the repealed rule, is
inapplicable to this appeal.
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Also, Shearer was not an ARD case; thus, it is clearly distinguishable
from the procedural posture of this appeal. Shearer merely cites Boos, for
the proposition that interlocutory orders not involving suppression issues may
be appealed under Rule 311(d). However, the Shearer Court offers no
analysis of the appealability of orders denying removal from ARD. That
decision does not bind this Court on the question of whether this appeal was
from a “final order,” as that phrase is now defined in Pa.R.A.P. 341(b)(1).
Thus, as I interpret the precedents, the Supreme Court has never analyzed or
ruled on the appealability of an order denying the Commonwealth’s motion to
remove a person from ARD under the current Rules of Appellate Procedure.
Finally, the Majority’s reliance upon Pennsylvania Rule of Appellate
Procedure 311(d) fares no better than its reliance upon Boos II and Shearer.
According to the Majority, the Commonwealth may appeal to this Court from
the interlocutory order denying its motion to remove Mr. Solomon from ARD,
because the trial court’s decision “effectively terminates his prosecution.”
Majority Opinion, ___ A.3d at ___. This is demonstrably false.
As explained above, if the Commonwealth waits to appeal from the truly
final order in an ARD proceeding (i.e. the order dismissing the charges upon
a defendant’s successful completion of the program), then this Court can
correct any prior error. We can reverse both the order dismissing the charges
and the prior order denying the Commonwealth’s motion to remove the
defendant from ARD. At that point, the prosecution would be reopened. The
charges would be back in play, and we would remand the matter for a trial on
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the merits. Thus, the order denying the Commonwealth’s motion to remove
Mr. Solomon from ARD in no way “effectively terminate[d] his prosecution.”
Id.
Moreover, unlike an order suppressing the Commonwealth’s evidence or
striking some, but not all, charges from an information, an order denying
removal from ARD does not handicap the prosecution, as the Commonwealth
and the Majority suggest. This is so, because the successful completion of the
ARD program is not a trial on the merits of the charges. Hence, the
constitutional double-jeopardy prohibitions on a retrial do not apply.
“The constitutional prohibition against ‘double jeopardy’ was designed
to protect an individual from being subjected to the hazards of trial and
possible conviction more than once for an alleged offense.” Serfass v.
United States, 420 U.S. 377, 387 (1975) (emphasis added). “The underlying
idea . . . is that the State with all its resources and power should not be
allowed to make repeated attempts to convict an individual for an alleged
offense . . . .” Id. at 387-88 (some punctuation omitted).
Under the Double Jeopardy Clause, “once a defendant is placed in
jeopardy for an offense, and jeopardy terminates with respect to that offense,
the defendant may neither be tried nor punished a second time for the same
offense.” Commonwealth v. Hallman, 67 A.3d 1256, 1261 (Pa. Super.
2013). Critically though, “jeopardy attaches when the jury is sworn.” Id.
(emphasis added).
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All the cases which the Majority relies on to support its contention that
Worzel incorrectly limited the concept of handicapping the prosecution to
evidentiary rulings were procedurally distinguishable from this case. Those
cases were headed to a trial with a substantive ruling adverse to the
Commonwealth. If we did not permit a pretrial appeal, the Commonwealth
would have been forced to go to trial without all its evidence or charges, and
double jeopardy would attach. By contrast, in ARD, by its very nature, the
defendant is not heading to trial, so long as he remains in ARD. Thus, double
jeopardy does not attach upon successful completion of ARD, and the
Commonwealth does not face a trial while handicapped by a potentially
erroneous pretrial ruling.
Unlike the orders in those cases, an order denying a motion to remove
someone from ARD does not impose the prosecutorial handicap that the
Commonwealth claims under Rule 311(d). Instead, the error can be
corrected, and the Commonwealth can eventually go to trial, unhandicapped,
if it is successful on an appeal from the final order dismissing the charges.
Because there is no prosecution prior to the final, appealable order,
there is no basis for the Commonwealth’s contention that the order in question
handicapped its non-pending prosecution of Mr. Solomon. Indeed, during
ARD, “the criminal prosecution is . . . held in abeyance.” Getz, 598 A.2d at
1310 (citations omitted). The prosecution remains in abeyance until a timely
final-order appeal is taken and resolved. Hence, Rule 311(d) does not apply
to an ARD ruling.
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In my view, neither Appellate Rule 311(d) nor Appellate Rule 313 is a
valid basis for this Court to assert jurisdiction over the Commonwealth’s
premature, interlocutory appeal. Additionally, Criminal Procedure Rule 318(C)
provides that no appeal shall be allowed from orders regarding removal from
ARD. I would adopt Worzel as correctly decided, deny the Commonwealth’s
petition for allowance of appeal, and quash its related notice of appeal.
Therefore, I must respectfully dissent.
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