Com. v. Bidding, A. ( 2019 )

J-S47041-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDREA E. BIDDING, :
:
Appellant : No. 227 MDA 2019
Appeal from the PCRA Order Entered January 18, 2019
in the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0002207-2008,
CP-40-CR-0002516-2008
BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: OCTOBER 15, 2019
Andrea E. Bidding (“Bidding”) appeals from the Order denying and
dismissing her first Petition for relief filed pursuant to the Post Conviction
Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. Additionally, Matthew
P. Kelly, Esquire (“Attorney Kelly”), has filed a Petition for leave to withdraw
as counsel, and an accompanying brief pursuant to Turner/Finley.1 We
quash the appeal, and dismiss Attorney Kelly’s Petition.
On April 23, 2009, Bidding entered a negotiated guilty plea to murder
of the third degree and criminal conspiracy to commit robbery at Luzerne
County docket number 2516-2008 (“2516-2008”), and one count of
possession of a controlled substance and two counts of possession with intent
____________________________________________
1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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to deliver at Luzerne County docket number 2207-2008 (“2207-2008”). The
trial court sentenced Bidding, at 2516-2008, to an aggregate term of 20 to 40
years in prison, and at 2207-2008, to an aggregate term of two to four years
in prison, to be served consecutively to the sentence at 2516-2008. On May
4, 2011, this Court affirmed Bidding’s judgments of sentence. See
Commonwealth v. Bidding, 30 A.3d 527 (Pa. Super. 2011) (unpublished
memorandum). Bidding did not file a Petition for allowance of appeal with the
Pennsylvania Supreme Court.
On August 3, 2018, Bidding filed a pro se PCRA Petition, her first.
Bidding was appointed counsel, who subsequently filed a Motion to Withdraw
and a “no-merit” letter pursuant to Turner/Finley. On January 18, 2019,
following a hearing, the PCRA court granted counsel’s Motion to Withdraw,
denied and dismissed Bidding’s Petition, and appointed Attorney Kelly as
Bidding’s appellate counsel.
Attorney Kelly filed a single Notice of Appeal, listing the two case
numbers for Bidding’s judgments of sentence. The trial court directed Bidding
to file a Pa.R.A.P. 1925(b) concise statement. In lieu of filing a concise
statement, Attorney Kelly indicated his intention to withdraw as counsel.
Attorney Kelly subsequently filed a Petition for leave to withdraw as counsel
and a Turner/Finley brief.
Before considering the merits of Bidding’s claims, we must first address
the fact that Bidding filed a single Notice of Appeal for two docket numbers.
Pennsylvania Rule of Appellate Procedure 341(a) provides that “an appeal may
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be taken as of right from any final order of a … trial court.” Pa.R.A.P. 341(a).
Additionally, the Official Note to Rule 341 directs that “[w]here … 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.” Id., Official
Note.
In Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), our Supreme
Court clarified that “[t]he Official Note to Rule 341 provides a bright-line
mandatory instruction to practitioners to file separate notices of appeal.” Id.
at 976-77. Accordingly, the Walker Court held that the failure to comply with
the dictates of Rule 341 and its Official Note would result in quashal of the
appeal. Id. at 977; see also id. (indicating that the Court’s holding would be
applied prospectively only, as “[t]he amendment to the Official Note to Rule
341 was contrary to decades of case law….”).
The Walker Opinion was filed on June 1, 2018. Here, Bidding filed her
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Notice of Appeal, listing both docket numbers, on February 5, 2019.2 Because
Bidding’s non-compliant Notice of Appeal was filed after the date of the
Walker decision, we are constrained to quash the appeal. See Walker, 185
A.3d at 977; Commonwealth v. Williams, 206 A.3d 573 (Pa. Super. 2019)
(quashing appeal where appellant filed a single notice of appeal containing
multiple docket numbers on June 5, 2018, just four days after the Walker
decision).
Appeal quashed. Jurisdiction relinquished. Petition for leave to
withdraw dismissed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2019
____________________________________________
2 On February 19, 2019, this Court issued a Rule to Show Cause why Bidding’s
appeal should not be quashed, pursuant to Walker. Bidding filed a timely
Response, arguing that Walker, which involved an appeal from a single order
disposing of separate motions filed by four defendants at four separate docket
numbers, see Walker, 185 A.3d at 971, is inapplicable to the instant case,
which concerns only one defendant. On March 14, 2019, this Court issued an
Order discharging the Rule to Show Cause, and referring the issue to the
merits panel. We conclude that Bidding’s attempt to distinguish the
circumstances of her case is unavailing, as neither Rule 341 nor Walker
indicates that a different standard must apply when multiple docket numbers
concern the same defendant. Instead, as the certified record reflects that the
trial court imposed a separate sentence at each docket number, Bidding’s
appeal clearly involves “one or more orders [which] resolves issues arising on
more than one docket or relating to more than one judgment[,]” Pa.R.A.P.
341, Official Note, and thus fits squarely within the dictates of Walker.
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