Com. v. Evans, A. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
ASHLEY MARIE EVANS :
:
Appellant : No. 1093 MDA 2020
Appeal from the PCRA Order Entered July 21, 2020
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0006128-2017,
CP-22-CR-0006163-2017
BEFORE: NICHOLS, J., KING, J., and MUSMANNO, J.
MEMORANDUM BY KING, J.: FILED JULY 13, 2021
Appellant, Ashley Marie Evans, appeals pro se from the order entered in
the Dauphin County Court of Common Pleas, which dismissed her first petition
brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We remand the
case with instructions.
The relevant facts and procedural history of this case are as follows.
Appellant fired several shots at, but did not hit, the victim on September 20,
2017. Resulting from this incident, the Commonwealth charged Appellant with
several offenses on two separate dockets. On October 30, 2018, following a
bench trial, the court convicted Appellant as follows: (1) on docket number
6163 CR 2017, of Criminal Attempt – Criminal Homicide and Firearms not to
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1 42 Pa.C.S.A. §§ 9541-9546.
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be Carried Without a License, and (2) on docket number 6128 CR 2017, of
Receiving Stolen Property. The court sentenced Appellant on December 18,
2018 to 8-16 years’ imprisonment for Criminal Attempt – Criminal Homicide,
five years’ probation for Firearms not to be Carried Without a License, and two
years’ probation for Receiving Stolen Property. Appellant did not file any post-
sentence motions or a direct appeal.
On November 1, 2019, Appellant timely filed a pro se PCRA petition
including both docket numbers and alleging ineffective assistance of trial
counsel. The court appointed counsel, who filed a motion to withdraw and
“no-merit” letter on January 21, 2020, pursuant to Commonwealth v.
Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley,
550 A.2d 213 (Pa.Super. 1988) (en banc). On June 25, 2020, the court
granted counsel’s motion to withdraw and filed a notice of intent to dismiss
Appellant’s PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907.
Appellant filed a pro se response on July 17, 2020. On July 21, 2020, the
court denied PCRA relief.
Appellant subsequently filed a single pro se notice of appeal containing
both underlying docket numbers.2 On August 31, 2020, the court ordered
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2 Although Appellant’s notice of appeal was not docketed until August 24,
2020, it is dated August 18, 2020. Giving Appellant the benefit of the
“prisoner mailbox rule,” we deem the filing timely. See Commonwealth v.
Chambers, 35 A.3d 34 (Pa.Super. 2011), appeal denied, 616 Pa. 625, 46
A.3d 715 (2012) (explaining prisoner mailbox rule provides that pro se
(Footnote Continued Next Page)
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Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained
of on appeal; Appellant complied.
Appellant raises two issues for our review:
Did the PCRA court err by dismissing Appellant’s PCRA
claiming that trial counsel was ineffective representing
Appellant due to his “dislike” toward her based on her
sexuality[?] This causing him to fail in defending her
according to her Sixth Amendment Due Process [r]ights,
therefore[,] violating her 6th Amendment [r]ight to fair
representation?
Did the PCRA court err by dismissing Appellant’s PCRA
petition without an evidentiary hearing because there were
factual issues present herein that required resolution before
the matter could be dismissed?
(Appellant’s Brief at 4) (some capitalization omitted).
As a preliminary matter, we must address Appellant’s filing of a single
notice of appeal containing more than one docket number. 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 generally “requires the appellate court to
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prisoner’s document is deemed filed on date he delivers it to prison authorities
for mailing).
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quash the appeal.” Id. Absent extraordinary circumstances such as fraud or
some breakdown in the processes of the court, this Court has no jurisdiction
to entertain an untimely appeal. Commonwealth v. Patterson, 940 A.2d
493 (Pa.Super. 2007), appeal denied, 599 Pa. 691, 960 A.2d 838 (2008).
In Commonwealth v. Stansbury, 219 A.3d 157 (Pa.Super. 2019), this
Court declined to quash an appeal under Walker, where the PCRA court had
misinformed the appellant about the manner in which to take an appeal. This
Court explained:
In the case sub judice, the PCRA court advised [a]ppellant
that he could appeal the dismissal of his PCRA petition by
filing within thirty days a notice of appeal from its order.
The court, still referring to its order that disposed of a PCRA
petition pending at two separate docket numbers, again
utilized the singular in advising [a]ppellant where to file
“Said notice of appeal.” Order, 1/4/19 (emphasis added).
Hence, while Walker required that [a]ppellant file separate
notices of appeal at each docket number, the PCRA court
informed [a]ppellant that he could pursue appellate review
by filing a single notice of appeal.
We conclude that such misstatements as to the manner that
[a]ppellant could effectuate an appeal from the PCRA court’s
order amount to a breakdown in the court operations such
that we may overlook the defective nature of [a]ppellant’s
[otherwise] timely notice of appeal rather than quash
pursuant to Walker.
Id. at 160 (internal footnote and brackets omitted) (emphasis in original).
See also Commonwealth v. Larkin, 235 A.3d 350, 354 (Pa.Super. 2020)
(en banc), appeal denied, ___ Pa. ___, 2021 WL 1185865 (2021) (declining
to quash appeal under Walker where PCRA court utilized singular language
in order informing defendant of appellate rights; stating, “[w]e agree with the
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panel in Stansbury and reaffirm its holding that we may overlook the
requirements of Walker where, as here, a breakdown occurs in the court
system, and a defendant is misinformed or misled regarding his appellate
rights”).
Instantly, the PCRA court denied relief by order entered July 21, 2020.
The order listed both underlying criminal docket numbers in the caption. The
order states:
AND NOW, this 21st day of July, 2020, upon independent
consideration of the Petition for Post Conviction Collateral
Relief submitted by Petitioner on November 1, 2019, and
this Court’s Notice of Intention to Dismiss the PCRA dated
June 25, 2020, said petition is hereby DISMISSED.
Petitioner is hereby advised of her right to appeal this
Order to the Superior Court of Pennsylvania within thirty
(30) days from the date of this Order. The Clerk of Court
is directed to send a copy of this Order to the petitioner by
certified mail, return receipt requested.
(Order, filed July 21, 2020) (some emphasis in original omitted) (some
emphasis added). Here, the PCRA court misinformed Appellant about the
manner in which to take an appeal. The court’s instruction for Appellant to
“appeal this Order” (which contained both underlying docket numbers in the
caption) suggested that Appellant needed to file only one notice of appeal from
the PCRA court order pertaining to both docket numbers. The court’s
misstatement in this regard constitutes a breakdown in the operations of the
court such that we may overlook the defective nature of Appellant’s otherwise
timely notice of appeal. See Larkin, supra; Stansbury, supra. Therefore,
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we decline to quash the appeal under Walker.
Based on its conclusion that quashal was proper under Walker, the
PCRA court declined to issue a Rule 1925(a) opinion on the merits in this case.
(See PCRA Court Opinion, filed October 22, 2020, at 2). Likewise, the
Commonwealth’s brief does not address Appellant’s issues, concluding this
Court should quash the appeal under Walker. (See Commonwealth’s Brief
at 4). Under these circumstances, the best resolution of this case is to remand
for the PCRA court to prepare a supplemental opinion addressing all properly
preserved claims. The PCRA court shall have 30 days to prepare its
supplemental opinion. After the court certifies its decision and returns the
record to this Court, the Prothonotary shall establish a new briefing schedule
so that the parties may have an opportunity to respond to the court’s
supplemental opinion. Accordingly, we remand the case with instructions.
Case remanded with instructions. Panel jurisdiction is retained.
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