Com. v. Formica, J. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JOSEPH FORMICA
Appellant : No. 1049 MDA 2018
Appeal from the PCRA Order Entered May 25, 2018
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0004689-2011,
CP-36-CR-0004737-2011
BEFORE: LAZARUS, J., OTT, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 13, 2019
Joseph Formica appeals pro se from the order, entered in the Court of
Common Pleas of Lancaster County, denying his pro se petition filed pursuant
to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Based
upon our Supreme Court's decision, Commonwealth v. Walker, 185 A.3d
969 (Pa. 2018), we quash the appeal.
The trial court summarized the procedural history as follows:
Following a consolidated jury trial, [Formica] was convicted on
March 8, 2013[,] of the following offenses: [on] Docket 4689-
2011, one count of [r]ape, one count of [i]nvoluntary [d]eviate
[s]exual [i]ntercourse ("IDSI"), one count of [a]ggravated
[i]ndecent [a]ssault, and one count of [i]ndecent [a]ssault; [on]
Docket 4737-2011, one count of [s]tatutory [s]exual [a]ssault,
one count of IDSI, one count of [u]nlawful [c]ontact with a
[m]inor, and one count of [c]orruption of [m]inors. On May 28,
2013, the [c]ourt sentenced [Formica] to an aggregate term of
twenty-three (23) years' to forty-six (46) years' incarceration in a
state correctional institution.
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[Formica] did not thereafter appeal his judgment of sentence to
the Superior Court. Rather, on May 22, 2014, [Formica] filed a
pro se [m]otion for [p]ost-[c]onviction [c]ollateral [r]elief
pursuant to the [PCRA]. The Court appointed Maryjean Glick,
Esquire, to represent [Formica] in the disposition of his PCRA
claim. On September 22, 2014, following a Grazier hearing, the
[c]ourt permitted [Formica] to proceed pro se and allowed counsel
to withdraw.
After the [c]ourt granted [Formica] numerous extensions of time
to file an amended PCRA [p]etition, and subsequent to a brief stay
of the proceedings, Jeffrey Conrad, Esquire, entered his
appearance for [Formica] on September 7, 2016. Following a
hearing held on September 9, 2016[,] regarding [Formica's] PCRA
[p]etition, the [c]ourt resentenced [Formica] and dismissed the
[p]etition. On November 21, 2016, the [c]ourt granted [a]ttorney
Conrad's motion to withdraw. On December 5, 2016, [Formica],
pro se, filed a notice of appeal to the Superior Court, which
dismissed [Formica's] appeal on February 3, 2017[,] due to
[Formica's] failure to comply with Pa.R.A.P. 3517.
On September 8, 2017, [Formica] filed his second pro se PCRA
Petition. The [c]ourt appointed Christopher P. Lyden, Esquire, to
represent [Formica] in the disposition of his PCRA claim. On
December 15, 2017, after finding no non -frivolous issues in the
Petition, counsel filed a [n]o-[m]erit Metter pursuant to
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988), and
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), in which
counsel sought to withdraw from representing [Formica]. On
February 16, 2018, the [c]ourt denied counsel's motion to
withdraw due to an error in counsel's [n]o-[m]erit Metter
regarding the date [Formica's] judgment of sentence became
final. Counsel filed a second [n]o-[m]erit Metter/[nn]otion to
[w]ithdraw on February 28, 2018.
On May 2, 2018, following an independent review of the record,
the [c]ourt granted counsel's motion to withdraw and issued a
notice of intent to dismiss [Formica's] PCRA [p]etition without a
hearing pursuant to Pa.R.Crim.P. 907. After receiving no response
from [Formica], the [c]ourt dismissed [Formica's] PCRA [p]etition
on May 25, 2018. The instant appeal followed.
[Formica] was ordered to file a concise statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b). On June
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22, 2018, [Formica] filed a timely 1925(b) Statement. The
Commonwealth filed its response on July 17, 2018.
Trial Court Opinion, 8/30/18, at 1-3 (footnotes omitted).
Before we can delve into the merits of Formica's appeal, we must
address the fact that he filed a single notice of appeal from an order that
resolved issues arising on two different docket numbers. Pennsylvania Rule
of Appellate Procedure 341(a) directs that "an appeal may be taken as a right
from any final order of a government unit or trial court." Pa.R.A.P. 341(a).
"The Official Note to Rule 341 was amended in 2013 to provide clarification
regarding proper compliance with Rule 341(a)." Commonwealth v. Walker,
185 A.3d 969, 976 (Pa. 2018). The Official Note now reads:
Where . one or more orders resolves issues arising on more
. .
than one docket or relating to more than one judgment, separate
notices of appeal must be filed. Commonwealth v. C.M.K., 932
A.2d 111, 113 & n.3 (Pa. Super. 2007) (quashing appeal taken by
single notice of appeal from order on remand for consideration
under Pa.R.Crim.P. 607 of two persons' judgments of sentence).
Pa.R.A.P. 341, Official Note.
In Walker, our Supreme Court construed the above language as a
"bright -line" rule mandating practitioners "file separate appeals from an order
that resolves issues arising on more than one docket. The failure to do so
requires the appellate court to quash the appeal." Walker, 185 A.3d at 977.
This mandate applies to all appeals. See Id.; Commonwealth v. Williams,
206 A.3d 573 (Pa. Super. 2019) (holding Rule 341(a) requires practitioners
file separate notices of appeal in PCRA appeals involving more than one docket
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number). The Supreme Court's ruling only applies prospectively. Walker,
185 A.3d at 77.
Walker was filed on June 1, 2018. Here, Formica filed his notice of
appeal containing two docket numbers on June 11, 2018. He hand -dated the
notice of appeal June 3, 2018. Because Formica's notice of appeal post-dates
the Walker decision, he was required to file separate notices of appeal for
each docket number. Therefore, we must quash this appeal in accordance
with Rule 341 and Walker.
Appeal quashed. Jurisdiction relinquished.
Judge Ott joins the Memorandum.
President Judge Emeritus Ford Elliott notes her dissent.
Judgment Entered.
f---7D. Seletyn,
Jseph
Prothonotary
Date: 08/13/2019
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