Commonwealth v. Williams , 206 A.3d 573 ( 2019 )

J-S84010-18
2019 PA Super 81COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
KENNETH WILLIAMS,
Appellant No. 1797 EDA 2018
Appeal from the PCRA Order Entered May 11, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s):
CP-51-CR-0001587-2010
CP-51-CR-0003262-2010
CP-51-CR-0003265-2010
CP-51-CR-0007274-2010
BEFORE: BENDER, P.J.E., OTT, J., and FORD ELLIOT, P.J.E.
OPINION BY BENDER, P.J.E.: FILED MARCH 20, 2019
Appellant, Kenneth Williams, appeals pro se from the post-conviction
court’s May 11, 2018 order that denied, as untimely, his petition filed under
the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful
review, we are constrained to quash this appeal.
The PCRA court summarized the procedural history of Appellant’s case,
as follows:
On January 27, 2012, following a jury trial before this
[c]ourt, [Appellant] … was convicted[, in four separate cases,] of
six counts of robbery (18 Pa.C.S. § 3701(a)(1)(i)), six counts of
criminal conspiracy (18 Pa.C.S. § 903(a)), and four counts of
possessing an instrument of crime[] (“PIC”) (18 Pa.C.S. §907(a)).
The [c]ourt deferred sentencing so that a pre-sentence report and
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mental health evaluation could be prepared. On June 15, 2012,
the [c]ourt denied [Appellant’s] untimely[-]filed pro se motion for
reconsideration. On that date, the [c]ourt imposed concurrent
sentences of fifteen to thirty years’ incarceration on the charge of
robbery, fifteen to thirty years[’ incarceration] on the charge of
criminal conspiracy, and no further penalty was ordered on the
PIC charge. On June 21, 2012, the Commonwealth filed a Motion
to Reconsider/Modify Sentence.
On September 10, 2012, upon reconsideration, the [c]ourt
vacated the June 15[, 2012] sentence and imposed concurrent
sentences of ten to twenty years[’ incarceration] on the charges
of robbery and criminal conspiracy, and two and a half to five
years’ incarceration on the PIC charge to run consecutive to the
charges of robbery and criminal conspiracy.
On October 2, 2012, [Appellant] filed an appeal with the
Superior Court of Pennsylvania. On January 28, 2013, the
Superior Court of Pennsylvania dismissed [Appellant’s] appeal for
failure to comply with Pa.R.A.P. []3517. On May 7, 2013,
[Appellant] filed a pro se [PCRA] … Petition. On May 2, 2014,
Attorney Mitchell Strutin filed an amended PCRA petition on behalf
of [Appellant]. On July 18, 2014, upon consideration of
[Appellant’s] amended PCRA petition, this [c]ourt reinstated
[Appellant’s] appellate rights nunc pro tunc to the Superior Court
of Pennsylvania with no objection from the Commonwealth. On
August 10, 2014, [Appellant] filed a Statement of Errors
Complained of on Appeal pursuant to Pa.R.A.P. 1925(b). On
October 14, 2015[,] the Superior Court of Pennsylvania affirmed
[Appellant’s] conviction. [Commonwealth v. Williams, 2140
EDA 2014, unpublished memorandum (Pa. Super. filed Oct. 4,
2015), appeal denied, 136 A.3d 981 (Pa. 2016).]
On August 4, 2017, [Appellant] filed a second pro se Petition
for Post-Conviction Relief. The [c]ourt appointed Attorney Mark
Franklin as PCRA counsel who filed a [Turner/]Finley[1] [no-
merit] letter [and a petition to withdraw] on March 1, 2018. The
[c]ourt denied [Appellant’s] PCRA and permitted Mr. Franklin to
____________________________________________
1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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withdraw on May 11, 2018. [Appellant] was notified via certified
mail.
On June 5, 2018, [Appellant] appealed the [c]ourt’s decision
to deny his PCRA.
PCRA Court Opinion, 7/18/18, at 1-2.
Before we can delve into the merits of Appellant’s appeal, we must
address the fact that he filed a single notice of appeal for an order that
resolved issues relating to four 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
separate notices of appeal.” Walker, 185 A.3d at 976-77. Therefore, the
Walker Court held that “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
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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. Here, Appellant’s pro
se notice of appeal containing multiple docket numbers was hand-dated June
4, 2018, and the envelope in which it was mailed bears a postmark of June 5,
2018. The Philadelphia County Clerk of Courts time-stamped the notice of
appeal on June 5, 2018.2 In light of this record, we are compelled to conclude
that Appellant’s non-compliant notice of appeal was filed after the Walker
decision. Therefore, we must quash this appeal in accordance with Rule 341
and Walker.
____________________________________________
2 On July 27, 2018, this Court issued a per curiam order directing Appellant to
show cause why his appeal should not be quashed pursuant to Walker.
Appellant filed a response, baldly claiming that he mailed his notice of appeal
on May 29, 2018, and, thus, pursuant to the prisoner-mailbox rule, we must
deem his notice as having been filed before Walker. See Motion to Show
Cause in the Quashal of Notice of Appeal, 8/6/18, at 1-2 (unnumbered) (citing
Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (holding that a pro
se prisoner’s notice of appeal shall be deemed filed on the date it is placed in
a prison mailbox or deposited with prison authorities for mailing)). However,
nothing in the record supports Appellant’s claim that he mailed his notice of
appeal on May 29, 2018. To the contrary, the record indicates that he mailed
the notice on June 4, 2018, at the earliest.
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Appeal quashed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/20/19
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