Com. v. West, D. ( 2020 )

J-S63012-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DARRYL (DEWS) WEST :
:
Appellant : No. 743 EDA 2019
Appeal from the PCRA Order Entered February 5, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001366-2012,
CP-51-CR-0001772-2012, CP-51-CR-0014064-2011
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DARRYL DEWS :
:
Appellant : No. 744 EDA 2019
Appeal from the PCRA Order Entered February 5, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001366-2012,
CP-51-CR-0001772-2012, CP-51-CR-0014064-2011
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DARRYL DEWS :
:
Appellant : No. 745 EDA 2019
Appeal from the PCRA Order Entered February 5, 2019
J-S63012-19
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001366-2012,
CP-51-CR-0001772-2012, CP-51-CR-0014064-2011
BEFORE: GANTMAN, P.J.E., MURRAY, J., and STRASSBURGER, J.*
MEMORANDUM BY GANTMAN, P.J.E.: FILED JANUARY 16, 2020
Appellant, Darryl (Dews) West, appeals pro se from the order entered
in the Philadelphia County Court of Common Pleas, which denied his first
petition filed under the Post Conviction Relief Act (“PCRA”).1 Based on this
Court’s decision in Commonwealth v. Creese, 216 A.3d 1142 (Pa.Super.
2019), we are constrained to quash the appeal.
The relevant facts and procedural history of this case are as follows. On
September 24, 2013, a jury convicted Appellant at three docket numbers of
12 counts of robbery and three counts each of conspiracy and possessing
instruments of crime, in connection with Appellant’s robberies of three
barbershops. The court sentenced Appellant on November 8, 2013, to an
aggregate 50 to 100 years’ imprisonment. This Court affirmed the judgment
of sentence on July 28, 2015, and our Supreme Court denied allowance of
appeal on February 14, 2018. See Commonwealth v. Dews, 125 A.3d 462(Pa.Super. 2015), appeal denied, 645 Pa. 570, 181 A.3d 1080 (2018).
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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Appellant timely filed a pro se PCRA petition on May 10, 2018, and a pro
se supplemental PCRA petition on June 25, 2018. The court appointed
counsel, who subsequently filed a motion to withdraw and Turner/Finley “no-
merit” letter.2 On December 14, 2018, the court issued notice of its intent to
dismiss the petition without a hearing per Pa.R.Crim.P. 907. Appellant
responded pro se on January 17, 2019. On February 5, 2019, the court denied
PCRA relief and let counsel withdraw. Appellant filed a pro se notice of appeal
at each underlying docket, on February 28, 2019.3 Each notice of appeal listed
all three docket numbers. Appellant attached to each notice of appeal a
“petition for permission to file [Rule] 1925(b) statement,” stating the issues
he intended to raise on appeal. On March 8, 2019, the court ordered Appellant
to file a concise statement per Pa.R.A.P. 1925(b). Appellant did not respond.4
Appellant raises the following issues on appeal:
WHETHER…TRIAL COUNSEL FAILED TO INVESTIGATE AND
PRESENT MITIGATING EVIDENCE OF TRAUMATIC AND
ABUSIVE CHILDHOOD OR CALL AVAILABLE CHARACTER
____________________________________________
2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
3 This Court consolidated the appeals.
4In its opinion, the PCRA court stated Appellant’s issues were waived because
Appellant did not respond to the Rule 1925(b) order. Nevertheless,
Appellant’s “petition for permission to file [Rule] 1925(b) statement,”
constituted a “preemptive” Rule 1925(b) statement, which merely limited
Appellant to raising on appeal the issues included in that filing. See generally
Commonwealth v. Snyder, 870 A.2d 336 (Pa.Super. 2005) (explaining that
where appellant files Rule 1925(b) statement on his own accord he is limited
on appeal to raising those issues presented in voluntary concise statement).
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WITNESS[ES] VIOLAT[ING] HIS RIGHT UNDER THE SIXTH
AMENDMENT TO THE U.S. CONSTITUTION AND ART. 1.,
SEC. 9 & 10 OF THE PENNSYLVANIA CONSTITUTION
PURSUANT TO WILLIAMS V. TAYLOR, 529 U.S. 362 [, 120
S.CT. 1495, 146 L.ED.2D 389] (2000) AND WIGGINS V.
SMITH, 5[3]9 U.S. 510[, 123 S.CT. 2527, 156 L.ED.2D
471] (2003)[?]
WHETHER…TRIAL COUNSEL FAILED TO PRESERVE ON
DIRECT APPEAL THE LEGALITY OF SENTENCING
[APPELLANT] TO CONSECUTIVE TEN TO TWENTY [YEARS’
INCARCERATION] FOR A SINGLE CRIMINAL EPISODE OF
BROTHER BARBERSHOP VIOLAT[ING] HIS RIGHTS UNDER
THE FIFTH AMENDMENT TO THE U.S. CONSTITUTION AND
ART. 1, SEC. 9 OF THE PENNSYLVANIA CONSTITUTION
PURSUANT TO COMMONWEALTH V. BRADLEY, 575 PA.
141[, 834 A.2D 1127] (2003) AND COMMONWEALTH V.
MCCLINTIC, [589 PA. 465,] 909 A.2D 1241 [(2006)?]
WHETHER…TRIAL COUNSEL WAS INEFFECTIVE FOR
FAILING TO [REQUEST] AN INSTRUCTION ON EYEWITNESS
IDENTIFICATION TESTIMONY (1) TO TELL THE JURY IT
COULD RECEIVE THE TESTIMONY WITH CAUTION AND (2)
PREJUDICE [APPELLANT’S] DEFENSE THAT CREATED A
CONCLUSIVE PRESUMPTION THAT THE EYEWITNESS’S
CERTAINTY MADE HIS IDENTIFICATION UNASSAILABLE
VIOLAT[ING] [APPELLANT’S] RIGHT UNDER THE
FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION
AND ART. 1, SECS 9 & 10 OF THE PENNSYLVANIA
CONSTITUTION PURSUANT TO COMMONWEALTH V.
KLOIBER, [378 PA. 412,] 106 A.2D 820 [(1954), CERT.
DENIED, 348 U.S. 875, 75 S.CT. 112, 99 L.ED. 688 (1954)]
AND SANDSTROM V. MONTANA, 442 U.S. 510[, 99 S.CT.
2450, 61 L.ED.2D 39] (1979)[?]
WHETHER THE JURY SELECTION PROCEDURE IMPLICATED
DUE PROCESS, SIXTH AMENDMENT AND EQUAL
PROTECTION PRINCIPLES WHEN APPELLANT [WAS NOT]
PRESENT DURING THIS CRITICAL STAGE OF VOIR DIRE OF
POTENTIAL JUROR #10 PRIOR TO [TRIAL] VIOLAT[ING] HIS
RIGHTS TO [A] JURY TRIAL UNDER THE FIFTH AND
FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION
AND ART. 1, SECS 9 & 10 OF THE PENNSYLVANIA
CONSTITUTION PURSUANT TO MCDONOUGH POWER
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EQUIP V. GREENWOOD, 464 U.S. 548[, 104 S.CT. 845,
78 L.ED.2D 663] (1984)[?]
WHETHER FAILURE OF THE COMMONWEALTH TO DISCLOSE
UNDERSTANDING WITH WITNESS ABOUT TESTIFYING WAS
A BRADY[ V. MARYLAND, 373 U.S. 83, 83 S.CT. 1194, 10
L.ED.2D 215 (1963)] VIOLATION, WHICH TRIAL COUNSEL
NEVER PRESERVED THIS CLAIM ON DIRECT APPEAL
VIOLATED [APPELLANT’S] RIGHT UNDER THE SIXTH AND
FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION
AND ART. 1, SECS 9 & 10 OF THE PENNSYLVANIA
CONSTITUTION PURSUANT TO COMMONWEALTH V.
STRONG, 563 PA. 455[, 761 A.2D 1167 (2000)] AND
NAPUE V. ILLINOIS, 360 U.S. 264[, 79 S.CT. 1173, 3
L.ED.2D 1217] (1959)[?]
WHETHER…THE COMMONWEALTH[’S] FAILURE TO
DISCLOSE PERSONNEL FILE AND OTHER INFORMATION
ABOUT DET. ANTHONY JACKSON FOR BIAS AND
PREJUDICE, WHICH THIS INFORMATION WAS CRITICAL TO
[APPELLANT’S] DEFENSE VIOLATED HIS RIGHT UNDER THE
FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION
AND ART. 1, SECS 9 & 10 OF THE PENNSYLVANIA
CONSTITUTION PUSUANT TO BRADY[, SUPRA] AND
GIGLIO V. UNITED STATES, 405 U.S. 150[, 92 S.CT. 763,
31 L.ED.2D 104] (1972)[?]
(Appellant’s Brief at 3-4).
Preliminarily, on June 1, 2018, our Supreme Court held in
Commonwealth v. Walker, 646 Pa. 456, 185 A.3d 969 (2018), that the
common practice of filing a single notice of appeal from an order involving
more than one docket will no longer be tolerated, because the practice violates
Pa.R.A.P. 341, which requires the filing of “separate appeals from an order
that resolves issues arising on more than one docket.” Walker, supra at
469, 185 A.3d at 977. The failure to file separate appeals under these
circumstances “requires the appellate court to quash the appeal.” Id.
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Recently, in Creese, a panel of this Court interpreted 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.” Id. at 1144.
Instantly, Appellant filed three pro se notices of appeal, one at each
underlying docket. Appellant’s notices of appeal pre-date Creese, so he
arguably complied with Walker, which did not specify a “one docket number
only per notice of appeal” mandate. We also recognize that Appellant, who is
pro se, had no way to intuit the additional requirement Creese grafted onto
Walker. Still, we are bound by Creese, which expressly prohibits a notice of
appeal listing multiple docket numbers. Accordingly, we must quash this
appeal.5
Appeal quashed.
Judge Murray joins this memorandum.
Judge Strassburger files a dissenting statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/16/20
____________________________________________
5Moreover, we would have affirmed the denial of PCRA relief because each of
Appellant’s claims is waived or otherwise merits no relief.
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