Com. v. Gardner, B. ( 2020 )

J-A22020-19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA, : PENNSYLVANIA
:
Appellee :
:
v. :
:
BYRON LEE RORIE-GARDNER, :
:
Appellant : No. 3381 EDA 2018
Appeal from the Judgments of Sentence Entered October 26, 2018
in the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0002652-2018
CP-15-CR-0002653-2018
BEFORE: MURRAY, J., STRASSBURGER, J.* and PELLEGRINI, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 09, 2020
Byron Lee Rorie-Gardner (Appellant) appeals from his judgments of
sentence for two convictions of criminal trespass entered on October 26, 2018.
After review, we are compelled to quash the appeal pursuant to
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), and Pa.R.A.P. 341(a).
Briefly, the facts underlying this appeal are as follows. The
Commonwealth charged Appellant with two summary counts of criminal
trespass in two separate criminal informations. The charge at CP-15-CR-
0002652-2018 (2652-18) was based upon Appellant’s presence on July 24,
2018, at a mobile home park owned by UMH Properties, Inc. The charge at
CP-15-CR-0002653-2018 (2653-18) was based upon Appellant’s presence at
the same park on April 16, 2018.
* Retired Senior Judge assigned to the Superior Court.
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The cases proceeded to a summary trial on October 23, 2018. At the
start of the trial, the Commonwealth moved to consolidate the two matters
for trial, and the oral motion was granted without objection. After taking the
matters under advisement at the conclusion of the trial, the trial court issued
a guilty verdict the following day. On October 26, 2018, the trial court
sentenced Appellant to 2 to 90 days of incarceration at each docket, to run
concurrently with each other. The court credited Appellant with time served
and released him on immediate parole.
Appellant filed timely a notice of appeal from his judgment of sentence.
After Appellant complied with the trial court’s Pa.R.A.P. 1925(b) order, the
trial court issued its Rule 1925(a) opinion.
Appellant presents three issues for our consideration, all of which relate
to his argument that these matters should have been pursued civilly under
the Landlord and Tenant Act, 68 P.S. §§ 250.101-250.602, and the
Manufactured Homes Community Rights Act, 68 P.S. §§ 398.1-398.16.1,
instead of under the Crimes Code. See Appellant’s Brief at 4-5.
Before we may address the merits of Appellant’s issues, we must first
determine whether Appellant filed separate notices of appeal at each docket
in conformity with Walker, or advanced reasons excusing his failure to do so.
In Walker, our Supreme Court adopted the bright-line rule in the Official Note
to Rule 341 mandating that practitioners file separate notices of appeal in all
future cases “when a single order resolves issues arising on more than one
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lower court docket.” 185 A.3d at 470. Failure to comply “will result in quashal
of the appeal.” Id.
On January 3, 2019, this Court issued a per curiam order directing
Appellant to show cause why the appeal should not be quashed in light of
Pa.R.A.P. 341, as interpreted in Walker. Appellant timely filed a response,
and this Court discharged the rule to show cause and deferred the issue to the
merits panel for disposition.
In his response to the rule to show cause, Appellant set forth the
following reasons why we should not quash his appeal. First, Appellant
pointed to the trial court’s consolidation of the two cases. Response to Rule
to Show Cause, 1/11/2019, at 1. Next, he argues that two appeals would
“merely double the paperwork” because “the same record,” “the same
opinion,” and “the same sentencing will be filed.” Id. at 4. He asserts that
this Court likely would have consolidated the two cases on appeal because it
involves one record and identical charges and legal issues for both cases. Id.
He contends Walker should not apply to his case because his case involves
one defendant, whereas Walker involved four cases with four defendants.
Id. Appellant concludes by noting that the Commonwealth has not suffered
prejudice and does not object to the cases proceeding as one appeal. Id. at
5.
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Our review of the certified record reveals that while there was one trial
and other intermingled filings,1 there is not one record; each case bears its
own docket number and docket. Each docket contains a separate sentencing
sheet with the single respective docket number at the top. The certified record
contains only one notice of appeal bearing both docket numbers. The notice
of appeal appears in the certified record for 2652-18, but not 2653-18.
Appellant’s certificate of service for the notice of appeal references his sending
of copies of “the [n]otice of [a]ppeal” to the people required by Pa.R.A.P. 906.
Certificate of Service, 9/18/2019, at 1. His response to the rule to show cause
gives no indication that he filed separate notices of appeal. Therefore, it
appears that Appellant improperly filed one notice of appeal from two
judgments of sentence on two separate dockets in violation of Walker. Cf.
Commonwealth v. Johnson, 236 A.3d 1141 (Pa. Super. 2020) (en banc)
(holding that inclusion of multiple docket numbers on separately filed
notices of appeal was not grounds for quashal under Walker) (emphasis
added).
None of the reasons advanced by Appellant in his response to the rule
to show cause excuses his failure to comply with Walker. Due to the broad
language used by our Supreme Court in Walker, this Court has not limited
the application of Walker to cases involving multiple defendants. See
1For example, the guilty verdict lists both docket numbers, but was docketed
only at 2652-18.
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Johnson, 236 A.3d at 1146 (“Notably, Walker did not specifically address
the situation in this case, where one defendant appeals from one judgment of
sentence, entered following one trial on multiple criminal dockets. In this
circumstance, the problems identified in … Walker involving multiple
defendants do not exist. Nonetheless, where a single defendant challenges his
sentence relating to ‘more than one docket,’ Walker requires that defendant
to file separate notices of appeal.”).
Additionally, although 2652-18 and 2653-18 were consolidated for trial
purposes, each case maintained a separate docket, requiring the filing of
separate notices of appeal at each docket. See C.T.E. v. D.S.E., 216 A.3d
296, 299 (Pa. Super. 2019) (quashing notice of appeal where appellant filed
a single notice of appeal from two docket numbers, despite their consolidation
in the lower court).2 Furthermore, our Supreme Court made clear in Walker
that consolidation of cases for appeal is a matter for the Superior Court to
decide, not an appellant on the appellant’s own initiative. Walker, 185 A.3d
at 976; see also Pa.R.A.P. 513 (“Where there is more than one appeal from
the same order, or where the same question is involved in two or more appeals
2 We note that an issue regarding the application of Walker to cases
consolidated in the trial court is pending before our Supreme Court. See
Always Busy Consulting, LLC v. Babford & Company, Inc., 235 A.3d 271(Pa. 2020) (considering whether this Court erred in quashing appeal pursuant
to Walker where “[p]etitioner failed to file a notice of appeal at a separate
docket number in a consolidated case, when [p]etitioner filed separate notices
of appeal at the consolidated docket number, as directed and required by the
trial court”).
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in different cases, the appellate court may, in its discretion, order them to
be argued together in all particulars as if but a single appeal. Appeals may be
consolidated by stipulation of the parties to the several appeals.”) (emphasis
added).
Accordingly, we are constrained to find Appellant’s failure to file a
separate notice of appeal at each of the two docket numbers violates Walker
and Rule 341, and is fatal to this appeal.
Appeal quashed.
Judge Murray joins the memorandum.
Judge Pellegrini files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/20
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