Com. v. Woodard, R. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
ROBERT WOODARD
Appellant No. 1380 EDA 2019
Appeal from the PCRA Order entered April 8, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at Nos: CP-51-CR-0220171-1992, CP-51-CR-0220261-
1992, CP-51-CR-0222811-1992, CP-51-CR-0238091-1992,
CP-51-CR-0220351-1992
BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.
MEMORANDUM BY STABILE, J.: FILED JUNE 08, 2020
Appellant, Robert Woodard, appeals from the April 8, 2019 order
entered in the Court of Common Pleas of Philadelphia County denying his
petition for collateral relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we quash the appeal.
The PCRA court summarized the relevant factual and procedural
background as follows.
[Appellant] was convicted of five counts of robbery, four counts of
burglary, three counts of possessing an instrument of crime, and
one count of rape on December 10, 1992. [Appellant] was
sentenced on March 29, 1993 to an aggregate term of 48 to 96
years. Following [Appellant]’s appeal, the Superior Court affirmed
his sentence in 1994. [Appellant] filed his first PCRA petition on
July 5, 1994. An amended petition was subsequently filed by
appointed counsel. The Honorable Genece E. Brinkley denied
[Appellant]’s PCRA [petition] on September 9, 1996. On October
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6, 1998, the Pennsylvania Supreme Court denied [Appellant]’s
petition for allocatur.
Over the next twenty-one years, [Appellant] filed a series of other
PCRA [petitions], all of which were dismissed by the [PCRA court].
PCRA Court Opinion, 4/8/19, at 1-2 (footnotes omitted).
At issue here are three identical PCRA petitions which Appellant filed on
November 29, 2018, December 17, 2018, and January 9, 2019, respectively.
On April 8, 2019, the PCRA court dismissed the three petitions. The order,
which effectively consists of one sentence, reads: “[F]ollowing a review of the
pleadings and record, the petitions of [Appellant] for post-conviction relief are
hereby DISMISSED for the reasons stated in the accompanying opinion.”
Order, 4/8/19 (emphasis in original).
Appellant timely filed five identical pro se notices of appeal, each listing
the five trial dockets numbers listed above. The appeals at docket numbers
1381 EDA 2019, 1382 EDA 2019, 1383 EDA 2019, and 1384 EDA 2019 were
dismissed for failure to file a brief. Regarding the pro se appeal at docket
number 1380 EDA 2019, we issued a rule to show cause why the appeal should
not be quashed in light of Commonwealth v. Walker, 185 A.3d 969 (Pa.
June 1, 2018).1 Appellant filed a pro se response in which he never addressed
Walker and its consequences.
____________________________________________
1 Walker prospectively requires separate notices of appeal from an order
resolving issues arising on more than one trial court docket. Walker was
decided on June 1, 2018. Therefore, the requirement for separate notices of
appeal applies to the April 8, 2019 order at issue in this case.
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On October 30, 2019, we entered an order informing the parties that
the Walker issue will be referred to the panel assigned to decide the merits
of appeal.
Initially, we find we must address another problem antecedent to the
Walker issue. The order being appealed here violates Pennsylvania Rules of
Criminal Procedure 907(4) and 114.
Rule 907(4) provides:
When the petition is dismissed without a hearing, the judge
promptly shall issue an order to that effect and shall advise the
defendant by certified mail, return receipt requested, of the right
of appeal from the final order disposing of the petition and of the
time limits within which the appeal must be filed. The order shall
be filed and served as provided in Rule 114.
Pa.R.Crim.P. 907(4). Pursuant to Rule 114, service shall be in writing by
“sending a copy to an unrepresented party by certified, registered, or first
class mail addressed to the party’s place of . . . confinement.” Pa.R.Crim.P.
114(B)(3)(a)(v). Further, the docket entries shall contain the date of receipt
in the clerk’s office of the order, the date appearing on the order, and the date
of service of the order. Pa.R.Crim.P. 114(C). Finally, Pa.R.A.P. 301 provides
that “no order of a court shall be appealable until it has been entered upon
the appropriate docket in the lower court.” Pa.R.A.P. 301(a)(1). An order
properly is entered upon the docket by complying with Pa.R.Crim.P. 114(C).
Here, the order does not advise Appellant of the right to appeal or the
time limits within which the appeal must be filed. It appears it was served by
certified mail, but there is no indication of return receipt requested, the docket
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entries recording the date of receipt of the order, the date appearing on the
order, or the date of service of the order.
Yet, despite all the irregularities with the order and the docketing of the
order, Appellant timely filed the instant appeal on May 1, 2019. Thus,
timeliness of the instant appeal is not at issue here.
What does remain however are the multiple irregularities with the
service and docketing of the order denying PCRA relief. Irregularities such as
those listed above typically result in quashal of an appeal without prejudice to
an appellant to file a new appeal upon rectification of the clerk of court’s
errors. See, e.g., Commonwealth v. Volz, No. 695 EDA 2019, unpublished
memorandum (Pa. Super. filed February 3, 2020); Commonwealth v.
Lowery, No. 3363 EDA 2018, unpublished memorandum (Pa. Super. filed
February 27, 2020). As in Volz and Lowery, we too quash the instant appeal
as premature. After the clerk of courts serves Appellant the April 8, 2019
order in accordance with Pa.R.Crim.907(4) and notes such service on the
docket as per Rule 114(C), Appellant will have thirty days from the date of
service to timely file separate notices of appeal at each docket implicated by
the order. See Walker, supra.
Appeal quashed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/8/20
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