Com. v. Paterson, D. ( 2019 )

J-S64023-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID PATERSON :
:
Appellant : No. 540 WDA 2019
Appeal from the PCRA Order Entered March 27, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0014198-2015
BEFORE: BOWES, J., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 3, 2019
David Paterson appeals, pro se, from the order, entered in the Court of
Common Pleas of Allegheny County, denying as untimely his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. We quash.
The bulk of the procedural history of this matter is irrelevant to our
disposition of this appeal. On March 21, 2016, Paterson entered a negotiated
guilty plea to multiple counts of rape and incest of a minor at two different
docket numbers. On August 29, 2016, the trial court sentenced Paterson to
an aggregate term of 10 to 20 years’ incarceration, followed by 10 years of
probation. Post-sentence motions were denied and Paterson timely appealed.
He withdrew his appeal on January 12, 2017.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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Paterson filed the instant PCRA petition, his second, on February 4,
2019. The court dismissed the petition as untimely by order dated March 27,
2019. Paterson filed a single notice of appeal, listing both docket numbers,
on April 9, 2019. On April 10, 2019, the court ordered Paterson to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Paterson did not file a Rule 1925(b) statement.
Paterson raises the following question for our review: “Whether the
PCRA court erred in denying [Paterson] relief?” Brief of Appellant, at 4.
Prior to addressing the merits of Paterson’s claim, we must address the
fact that he filed a single notice of appeal from an order that resolved issues
relating to two different docket numbers. Pennsylvania Rule of Appellate
Procedure 341(a) directs that “an appeal may be taken as of right from any
final order of a government unit or trial court.” Pa.R.A.P. 341(a). “The Official
Note to Rule 341 was amended in 2013 to provide clarification regarding
proper compliance with Rule 341(a)[.]” Commonwealth v. Walker, 185
A.3d 969, 976 (Pa. 2018). The Official Note now reads:
Where . . . one or more orders resolves issues arising on more
than one docket or relating to more than one judgment, separate
notices of appeals 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.
In Walker, our Supreme Court construed the above-language as
constituting “a bright-line mandatory instruction to practitioners to file
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separate notices of appeal.” Walker, 185 A.3d at 976-77. Therefore, “the
proper practice under Rule 341(a) is to file separate appeals from an order
that resolves issues arising on more than one docket. The failure to do so
requires the appellate court to quash the appeal.” Id. at 977. However, the
Court tempered its holding by making it prospective only, recognizing that
“[t]he amendment to the Official Note to Rule 341 was contrary to decades of
case law from this Court and the intermediate appellate courts that, while
disapproving of the practice of failing to file multiple appeals, seldom quashed
appeals as a result.” Id. Accordingly, the Walker Court directed that “in
future cases Rule 341 will, in accordance with its Official Note, require that
when a single order resolves issues arising on more than one lower court
docket, separate notices of appeal must be filed. The failure to do so will
result in quashal of the appeal.” Id. (emphasis added).
The Walker opinion was filed on June 1, 2018. Paterson’s pro se notice
of appeal containing two docket numbers was filed on April 9, 2019.
Accordingly, we are required to quash this appeal in accordance with Rule 341
and Walker.1
Appeal quashed.
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1 Even if we did not quash Paterson’s appeal pursuant to Walker, we would
find his appellate claim waived for failure to comply with the PCRA court’s
order directing him to file a Rule 1925(b) statement. See Commonwealth
v. Lord, 719 A.2d 306 (Pa. 1998) (to preserve claim for appellate review,
defendant must comply whenever trial court orders filing of statement of
errors complained of on appeal).
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Judge Bowes joins this Memorandum.
Judge Pellegrini concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/3/2019
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