Com. v. Pratt, H. ( 2019 )

J-A13044-19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
HENRY PRATT, :
:
Appellant : No. 3194 EDA 2018
Appeal from the PCRA Order Entered October 17, 2018
in the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0002336-2015
CP-15-CR-0003331-2014
BEFORE: SHOGAN, J., NICHOLS, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 13, 2019
Henry Pratt (Appellant) appeals pro se from the October 17, 2018
order dismissing his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we quash.
We set forth the PCRA court’s summary of the procedural history of
Appellant’s case as follows.
On November 20, 2015 [Appellant] entered into a
negotiated guilty plea [at docket number] CP-15-CR-2336-
2015[,] in which he [pleaded] guilty to one count of access
device fraud …. At the same time, [Appellant] entered into a
negotiated guilty plea to one count of forgery … [at docket
number] CP-15-CR-3331-2014.
On the same day, [Appellant] was sentenced to the
agreed[-]upon sentence of two years of probation on the one
count of access device fraud followed by two years of probation
on the one count of forgery. As the probation sentences were
run consecutive to one another, [Appellant] received an
* Retired Senior Judge assigned to the Superior Court.
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aggregate sentence of four years of probation. [Appellant] did
not file any post-sentence motions or a direct appeal. …
On June 11, 2018, [Appellant] filed the pro se PCRA
petition, which is now the subject of this appeal.
PCRA Court Opinion, 12/28/2018, at 1-2 (unnecessary capitalization and
parenthetical numbers omitted).
Counsel was appointed, and counsel filed a “no-merit” letter and
petition to withdraw as counsel pursuant to Commonwealth v. Turner,
544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213(Pa. Super. 1988) (en banc). Appellant pro se filed a response. On
September 18, 2018, the PCRA court issued notice of its intent to dismiss
the petition without a hearing pursuant to Pa.R.Crim.P. 907. Appellant
objected. On October 17, 2018, the PCRA court dismissed Appellant’s
petition as untimely filed and granted counsel’s petition to withdraw as
counsel. This timely-filed appeal followed.1
Preliminarily, we must address Appellant’s failure to comply with
Pa.R.A.P. 341 by filing 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)....”
1Appellant timely filed a concise statement pursuant to Pa.R.A.P. 1925(b),
but did not serve a copy on the PCRA court. The PCRA court issued a
Pa.R.A.P. 1925(a) opinion.
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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 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).
Commonwealth v. Williams, ___ A.3d ___, 2019 WL 1272699 at *2 (Pa.
Super. 2019).
Walker was filed on June 1, 2018. Appellant filed the instant single
notice of appeal on October 29, 2018, listing two lower court docket
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numbers.2 Because Appellant failed to comply with Rule 341 and Walker,
we must quash this appeal. See Williams, supra (quashing incarcerated
defendant’s post-Walker pro se notice of appeal, filed June 4 or 5, 2018,
from PCRA order resolving issues related to four different docket numbers).3
2In his application for reargument, Appellant contends that he complied with
Rule 341 and Walker because he sent two separate notices of appeal at
each lower court docket number. See Application for Reargument,
7/24/2019, at 2, Exhibit A. Although Appellant includes an exhibit of the
purported notices of appeal, the notices do not contain any timestamp or
evidence of their mailing. Moreover, upon review of the record, it is
apparent that these purported notices of appeal were never filed and are not
part of the certified record. Finally, although Appellant filed an application to
correct the record, he did not seek in that application to include the above-
mentioned “missing” notices of appeal. See Application for Correction of the
Original Record, 1/31/2019.
[U]nder the Pennsylvania Rules of Appellate Procedure,
any document which is not part of the officially certified record is
deemed non-existent—a deficiency which cannot be remedied
merely by including copies of the missing documents in a brief or
in the reproduced record. The emphasis on the certified record
is necessary because, unless the trial court certifies a document
as part of the official record, the appellate judiciary has no way
of knowing whether that piece of evidence was duly presented to
the trial court or whether it was produced for the first time on
appeal and improperly inserted into the reproduced record.
Simply put, if a document is not in the certified record, the
Superior Court may not consider it.
Commonwealth v. Preston, 904 A.2d 1, 6-7 (Pa. Super. 2006) (citations
omitted). Because this Court may not consider documents outside the
certified record, the only notice of appeal this Court may consider in
addressing Appellant’s Walker compliance is the October 29, 2018 single
notice of appeal listing two lower court docket numbers, which clearly
violates the mandates of Walker.
3 This author disagrees with a strict application of Walker to incarcerated
pro se appellants because it is not congruent with our Supreme Court’s
(Footnote Continued Next Page)
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Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/13/19
(Footnote Continued) _______________________
decision in Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017) (holding
that the presumption that information in the public domain is known to PCRA
petitioners cannot apply to incarcerated petitioners). However, pursuant to
Williams, supra, this author recognizes that he is constrained to apply
Walker strictly to pro se incarcerated appellants. See Commonwealth v.
Beck, 78 A.3d 656, 659 (Pa. Super. 2013) (“This panel is not empowered to
overrule another panel of the Superior Court.”).
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