Com. v. Spearman, M. ( 2020 )

J-S01011-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MELVIN SPEARMAN :
:
Appellant : No. 700 EDA 2019
Appeal from the Judgment of Sentence Entered March 26, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008773-2017,
CP-51-CR-0008781-2017, CP-51-CR-0008782-2017,
CP-51-CR-0008802-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MELVIN SPEARMAN :
:
Appellant : No. 701 EDA 2019
Appeal from the Judgment of Sentence Entered March 26, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008773-2017,
CP-51-CR-0008781-2017, CP-51-CR-0008782-2017,
CP-51-CR-0008802-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MELVIN SPEARMAN :
:
Appellant : No. 702 EDA 2019
Appeal from the Judgment of Sentence Entered March 26, 2018
J-S01011-20
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008773-2017,
CP-51-CR-0008781-2017, CP-51-CR-0008782-2017,
CP-51-CR-0008802-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MELVIN SPEARMAN :
:
Appellant : No. 703 EDA 2019
Appeal from the Judgment of Sentence Entered March 26, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008773-2017,
CP-51-CR-0008781-2017, CP-51-CR-0008782-2017,
CP-51-CR-0008802-2017
BEFORE: BOWES, J., KUNSELMAN, J., and STRASSBURGER, J.*
MEMORANDUM BY BOWES, J.: FILED MARCH 05, 2020
Melvin Spearman appeals nunc pro tunc from the imposition of a
judgment of sentence of five years of probation, after a judge convicted him
of multiple counts of terroristic threats, stalking, harassment, and contempt
for violating a protection from abuse order, at four docket numbers. We quash
these appeals as premature.
Given our disposition, a full recitation of the underlying facts of this case
is unnecessary. Suffice it to say that Appellant harassed his son’s mother on
four separate occasions and during each incident threatened harm to her and
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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her family. Appellant was charged at separate docket numbers for each
incident, but the cases were consolidated for trial. At the conclusion of the
March 26, 2018 non-jury trial, Appellant was convicted of the aforementioned
crimes. After conviction, Appellant waived his right to a pre-sentence
investigation and was immediately sentenced as detailed above. On February
8, 2019, Appellant’s direct appeal rights were reinstated nunc pro tunc
pursuant to Post-Conviction Relief Act (“PCRA”). On February 28, 2019,
Appellant filed in each case a notice of appeal listing all four trial court docket
numbers.
This Court issued a rule to show cause why the appeal should not be
quashed pursuant to Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018)
(holding that an appeal must be quashed if an appellant fails to file separate
notices of appeal at each docket number implicated by an order resolving
issues that involve more than one trial court docket). See also
Commonwealth v. Creese, 216 A.3d 1142, 1144 (Pa.Super. 2019)
(concluding that Walker mandates that “a notice of appeal may contain only
one docket number”). Upon receiving a response from counsel, in which
counsel claimed that he filed four separate notices of appeal each of which
contained all four docket numbers, this Court discharged the rule and referred
the issue to this merits panel.1
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1 The Commonwealth declined to address the Walker issue in its brief.
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Our review of the record leads us to conclude that this appeal should be
quashed, not because of a violation of Walker, but due to the absence of a
final appealable order. Hence, any appeal is premature. With the exception
of an appeal from a judgment of sentence announced in open court, “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). However, when a direct
appeal from a judgment of sentence follows a PCRA court’s reinstatement of
a defendant’s direct appeal rights, the defendant is required to file his nunc
pro tunc direct appeal “within 30 days of the entry of the order reinstating his
direct appeal rights.”2 Commonwealth v. Wright, 846 A.2d 730, 735 (Pa.
Super. 2004). An order is properly entered upon the docket by indication
thereon of “(a) the date of receipt in the clerk’s office of the order or court
notice; (b) the date appearing on the order or court notice; and (c) the date
of service of the order or court notice.” Pa.R.Crim.P. 114(C)(2).
The PCRA court’s February 8, 2019 orders in the instant cases have not
been properly entered on their respective dockets. The entry for the order
fails to indicate the date when such service was made in accordance with the
mandates of Pa.R.Crim.P. 114(C)(2).
____________________________________________
2 Additionally, the PCRA court must inform the defendant that the nunc pro
tunc direct appeal must be filed within thirty days of the entry of the PCRA
order reinstating his rights. Commonwealth v. Wright, 846 A.2d 730, 735
(Pa.Super. 2004). This Court will not quash an appeal as untimely if the PCRA
court failed to provide that information. See id. at 735-36. The written order
at issue in this appeal did include the thirty day time requirement.
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Accordingly, we quash this appeal as premature. After the clerk of court
notes service of the orders reinstating appellate rights nunc pro tunc on the
different dockets as required by 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 orders.
Appeals quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/5/20
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