Com. v. Johnson, O.

J-S45003-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ODELL JOHNSON :
:
Appellant : No. 2823 EDA 2018
Appeal from the PCRA Order Entered September 21, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009190-2010,
CP-51-CR-0009191-2010
BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*
DISSENTING MEMORANDUM BY PELLEGRINI, J.: FILED OCTOBER 17, 2019
Respectfully, I dissent for reasons similar to those outlined in
Commonwealth v. Hackley, 1769 MDA 2018, at 4 n.1 (September 23,
2019) (non-precedential decision).1
Odell Johnson (Johnson) filed a single notice of appeal captioned with
two docket numbers, CP-51-CR-0009190 (9090) and CP-51-CR-0009191
(9191). The sole order on review in this case is captioned with a single trial
court docket number, 9191, and 9090 is omitted. It appears that the
prothonotary never entered a separate order bearing that latter docket
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 If filed after May 1, 2019, Superior Court memorandum decisions may be
cited for their persuasive value. See Pa.R.A.P. 126(b).
J-S45003-19
number. This reasonably suggested that the two matters were treated as one
for filing and appellate purposes. In fact, after Johnson filed his notice of
appeal, the trial court entered an order pursuant to 1925(b) captioned with
both trial court docket numbers and requiring Johnson to file “a [single]
Concise Statement of Errors Complained of on Appeal, within twenty-one days
of the date of this [single] ORDER[.]”
These facts mirror those in Hackley, where we found that defects in the
notice of appeal were not attributable to the appellant:
In Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), our
Supreme Court held that under Pa.R.A.P. 341, an appeal must be
quashed if a defendant files only a single notice of appeal as to
multiple docket numbers. Although Hackley filed one notice of
appeal for two docket numbers, Walker is inapplicable here
because the trial court and the Prothonotary treated the
proceedings in a way that is tantamount to complete consolidation
under one docket number.
Here, certified records on appeal were prepared for docket
numbers 2017-3539 and 2017-3536, but only the latter includes
an order of judgment of sentence. The order bears both docket
numbers, but advises Hackley of having 30 days “from this order”
(in the singular), to appeal to the Superior Court. In so writing,
the trial court essentially told Hackley that there was one order,
and that he was entitled to only one appeal. This Court held
recently in Commonwealth v. Stansbury, 303 EDA 2019 *3 (Pa.
Super. September 5, 2019), that a party may file a single notice
of appeal in these circumstances because it results from a
breakdown of court operations.
The case docket for 2017-3539 further confirms the existence of
at most a single order because it does not contain a judgment of
sentence or any other document relating to the present appellate
proceedings. Instead, the Prothonotary’s handwritten notes next
to several entries on the case docket sheet direct the reader to
“See 3536-17.” Pa.R.A.P. 301(b) provides that “Every order shall
be set forth on a separate document,” but the trial court only set
-2-
J-S45003-19
forth one document – the order entered at 2017-3536, which bore
the two docket numbers. This means there was no separate order
entered at 2017-3539 for Hackley to appeal. See Pa.R.A.P.
301(a) (“no order of a court shall be appealable until it has been
entered upon the appropriate docket in the lower court.”)
(Emphasis added). Indeed, the inclusion of two docket numbers
in the one order raises the question of whether any appealable
order was entered at all. See Pa.R.A.P. 301(b) (making entry of
a separate document for each order a “requisite” for
appealability). Thus, it is clear that Hackley’s notice of appeal
comports with Walker because the trial court was responsible for
any of its potential defects.
Hackley, 1769 MDA 2018, at 4 n.1
As in Hackley, Johnson’s non-compliance with Walker resulted from
the prompting of the trial court and the prothonotary, who treated the
consolidated proceedings as a single case. The trial court repeatedly advised
that Johnson needed to appeal from only a single order to preserve his
appellate issues. His appeal should not be quashed because of acting in
accordance with the trial court’s misstatements. Thus, I would attribute
Johnson’s defective notice of appeal to a breakdown in court operations and
decline to find Walker applicable.2
____________________________________________
2 See also Commonwealth v. Stansbury, 303 EDA 2019 *3 (Pa. Super.
September 5, 2019) (“We have many times declined to quash an appeal when
the defect resulted from an appellant’s acting in accordance with
misinformation relayed to him by the trial court.”); Commonwealth v. Cox,
114 WDA 2019, at 1–2 (Pa. Super. September 13, 2019) (non-precedential
decision) (same).
-3-