Com. v. Morrow, J. ( 2019 )

J-S43041-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN BOYD MORROW :
:
Appellant : No. 1806 MDA 2018
Appeal from the Judgment of Sentence Entered May 23, 2018
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0000886-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN BOYD MORROW :
:
Appellant : No. 1807 MDA 2018
Appeal from the Judgment of Sentence Entered May 23, 2018
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0000887-2017
BEFORE: GANTMAN, P.J.E., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 22, 2019
Appellant John Boyd Morrow appeals from the judgments of sentence
entered by the Court of Common Pleas of Franklin County on two separate
dockets. After careful review, we are constrained to quash this appeal.
In April 2017, Appellant was charged at docket number 886-2017 with
burglary, trespass, indecent assault, unlawful restraint, terroristic threats,
simple assault, and strangulation. Appellant was charged at docket number
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S43041-19
887-2017 with indecent assault and criminal assault. The Commonwealth filed
a motion to join the cases for trial, which the trial court subsequently granted.
On February 23, 2018, the jury convicted Appellant of all charges on
both dockets. On May 23, 2018, the trial court imposed an aggregate term of
360-740 months’ incarceration for the convictions at docket number 886-
2017. At docket 887-2017, the trial court imposed a concurrent term of 300-
600 months’ incarceration for the indecent assault conviction and a
consecutive 12-24 month term for the simple assault conviction. Appellant
filed a post-sentence motion, which the trial court subsequently denied in a
single order listing both docket numbers.
On October 31, 2018, Appellant filed a notice of appeal listing both
docket numbers. The original notice of appeal was filed at docket number
887-2011; a photocopy of that notice of appeal was placed in the record for
docket number 886-2011. On January 17, 2018, this Court sua sponte
consolidated the two cases into one appeal.
On January 18, 2019, this Court issued a Rule to Show Cause for
Appellant to explain why his appeal should not quashed pursuant to
Commonwealth v. Walker, ___Pa.___, 185 A.3d 969, 971 (Pa. 2018)
(holding that “where a single order resolves issues arising on more than one
docket, separate notices of appeal must be filed for each of those cases”). On
January 30, 2019, Appellant filed a counseled response, claiming the appeal
should not be quashed as the lower court joined the two cases for trial at the
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Commonwealth’s request. On February 5, 2018, this Court discharged the
Rule to Show Cause and referred the matter to the merits panel.
The Official Note to Pa.R.A.P. 341 provides, in relevant part:
Where … one or more orders resolves issues arising on more
than one docket or relating to more than one judgment, separate
notices of appeal must be filed. Commonwealth v. C.M.K., 932
A.2d 111, 113 & n.3 (Pa.Super. 2007) (quashing appeal taken by
single notice of appeal from order on remand for consideration
under Pa.R.Crim.P. 607 of two persons’ judgments of sentence).
Pa.R.A.P. 341, Official Note.
Until recently, courts of this Commonwealth would allow appeals to
proceed even if they failed to conform with Pa.R.A.P. 341. See In the
Interest of P.S., 158 A.3d 643 (Pa.Super. 2017). However, on June 1, 2018,
our Supreme Court emphasized in Walker that Rule 341 requires that “where
a single order resolves issues arising on more than one docket, separate
notices of appeal must be filed for each case.” Walker, 185 A.3d at 971. The
Court concluded that “[t]he Official Note to Rule 341 provides a bright-line
mandatory instruction to practitioners to file separate notices of appeal. … The
failure to do so requires the appellate court to quash the appeal.” Id. at 976-
77. See Commonwealth v. Luciani, 201 A.3d 802, 805 n.2 (Pa.Super.
2018) (recognizing that, despite the fact that charges filed at two separate
docket numbers are joined for trial, appellants are required to file separate
notices of appeal under Walker). The Supreme Court provided that its
decision applies prospectively to appeals filed after June 1, 2018, the date
Walker was filed.
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In this case, on October 31, 2018, Appellant filed two identical notices
of appeal listing both docket numbers. As Appellant’s notice of appeal was
filed after Walker was decided, we must apply the principle set forth in
Walker. In doing so, we find that Appellant has not complied with Walker
in filing duplicate notices of appeal listing both docket numbers.
In a similar case, Commonwealth v. Creese, ___A.3d___, 2019 PA
Super 241 (Pa.Super. Aug. 14, 2019), this Court quashed an appeal where
the appellant filed four identical notices of appeal that listed all four docket
numbers. This Court provided as follows:
We read our Supreme Court's decision in Walker as instructing
that we may not accept a notice of appeal listing multiple docket
numbers, even if those notices are included in the records of each
case. Instead, a notice of appeal may contain only one docket
number. We recognize the severity of this application. However,
if we consistently apply Walker by quashing any notice of appeal
filed after June 1, 2018 that contains more than one docket
number, consistent with Walker, and regardless of what occurred
in the actual filing of that notice of appeal below, it will ultimately
benefit appellants and counsel by providing clear guidance on how
to satisfy Walker and Rule 341(a). Conversely, if we create
exceptions to Rule 341 and Walker to avoid a harsh result, we
will return to a scenario that the amendment to the Official Note
and Walker sought to abrogate. In addition, we will do a
disservice to appellants and counsel by applying the rule in a
manner that is both confusing and inconsistent, the latter of which
would be patently unfair.
Creese, 2019 Pa. Super. 241, at *2.1
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1 This Court explained how our Prothonotary may treat the appeal when an
appellant files a notice of appeal listing multiple docket numbers, even when
this notice of appeal is placed in the records for each of the cases:
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In light of the aforementioned precedent, we are constrained to quash
the appeal.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/2019
____________________________________________
Our Court will then assign an appellate docket number to each
case, and either consolidate the appeals by per curiam order, or
assign them consecutive journal numbers, at which point the
panel may then consolidate the appeals if it so chooses. The four
captions in this appeal, which were generated administratively, do
not cure the Walker violation. The clerk of courts have purely
ministerial powers. See In re Administrative Order, 594 Pa.
346, 936 A.2d 1, 9 (2007) (“It is ‘well settled’ in the intermediate
appellate courts of this Commonwealth that the role of the
Prothonotary of the court of common pleas, while vitally
important, is purely ministerial .... Further, as ‘[t]he Prothonotary
is merely the clerk of the court of Common Pleas[,] [h]e has no
judicial powers, nor does he have power to act as attorney
for others by virtue of his office.”) (emphasis added)).
Creese, 2019 Pa. Super. 241, at *2, n. 2 (emphasis in original).
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