Com. v. Horan, P. ( 2019 )

J-A15045-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PATRICK HORAN :
:
Appellant : No. 3504 EDA 2018
Appeal from the PCRA Order Entered October 31, 2018
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0002572-2006,
CP-48-CR-0002868-2006, CP-48-CR-0002881-2006
BEFORE: BENDER, P.J.E., GANTMAN, P.J.E., and COLINS*, J.
JUDGMENT ORDER BY COLINS, J.: FILED MAY 31, 2019
Appellant, Patrick Horan, pro se, appeals from the order entered
October 31, 2018, that dismissed his petition filed under the Post Conviction
Relief Act (“PCRA”)1 without a hearing. We quash this appeal.
This Court previously summarized underlying factual and procedural
history of this action in Commonwealth v. Horan, No. 1790 EDA 2010,
unpublished memorandum at 1-5 (filed March 24, 2011) (reinstating
Appellant’s direct appeal rights), and Commonwealth v. Horan, No. 979
EDA 2011, unpublished memorandum at 1-4 (Pa. Super. filed March 15,
2012) (affirming judgment of sentence). We therefore need not restate
____________________________________________
1 42 Pa.C.S. §§ 9541–9546.
* Retired Senior Judge assigned to the Superior Court.
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them herein. On August 19, 2014, Appellant filed a PCRA petition, which the
PCRA court granted in part. On October 2, 2014, the trial court resentenced
Appellant. In 2018, Appellant pro se filed the instant PCRA petition arguing
that his rights pursuant to the Fourth Amendment of the United States
Constitution and Article I, Section 8 of the Pennsylvania Constitution were
violated when the Commonwealth tracked his cellular telephone’s location
without a warrant. PCRA Petition, 8/15/2018, at 3-4. The PCRA court
dismissed the petition without a hearing.2 On November 25, 2018, Appellant
filed one notice of appeal from three separate dockets.
The Official Note to Rule 341 of the Pennsylvania Rules of
Appellate Procedure provides in relevant part:
Where . . . one or more orders resolves issues arising on
more than one docket or relating to more than one
judgment, separate notices of appeals 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).
____________________________________________
2 PCRA court did not appoint counsel to represent Appellant. Although the
current PCRA petition was Appellant’s first since his 2014 resentencing and
Appellant is currently serving sentences at all three docket numbers,
Appellant’s instant PCRA petition only challenged his original conviction and
not his new sentence. Accordingly, the resentencing does not “reset the
clock,” his present PCRA petition is not considered his “first” petition for his
conviction, and he consequently is not entitled to counsel. See
Commonwealth v. McKeever, 947 A.2d 782, 785-86 (Pa. Super. 2008).
Had Appellant been entitled to counsel, we would not have quashed,
because the procedural error leading to quashal may not have occurred had
the appeal been filed by an attorney instead of a pro se appellant. See
Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (stating that we
presume counsel acts effectively).
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Pa.R.A.P. 341, Official Note.
Until recently, it was common practice for courts of this
Commonwealth to allow appeals to proceed, even if they failed
to comply with Pa.R.A.P. 341.
While our Supreme Court recognized that the practice of
appealing multiple orders in a single appeal is discouraged
under Pa.R.A.P. 512 (joint appeals), it previously
determined that “appellate courts have not generally
quashed [such] appeals, provided that the issues involved
are nearly identical, no objection to the appeal has been
raised, and the period for appeal has expired.” K.H. v.
J.R., 826 A.2d 863, 870 (Pa. 2003) (citation omitted).
In the Interest of: P.S., 158 A.3d 643, 648 (Pa. Super. 2017)
(footnote omitted).
However, on June 1, 2018, our Supreme Court in
[Commonwealth v.] Walker[, 185 A.3d 969 (Pa. 2018),] held
that the practice violated Pennsylvania Rule of Appellate
Procedure 341, and the failure to file separate notices of appeal
for separate dockets must result in quashal of the appeal. See
Walker, 185 A.3d at 977. The Court stated unequivocally:
“The Official Note to Rule 341 provides a bright-line mandatory
instruction to practitioners to file separate notices of appeal. . . .
The failure to do so requires the appellate court to quash the
appeal.” Id. at 976-77.
Because the mandate in the Official Note was contrary to
“decades of case law from this Court and the intermediate
appellate courts,” the Walker Court announced that its holding
would apply prospectively only. Id. at 977. Accordingly,
Walker applies to appeals filed after June 1, 2018, the date
Walker was filed. Id.
* * *
2 We recognize the harsh - perhaps draconian -
consequence of quashing any appeal . . . However, our
role as an intermediate appellate court is clear. “It is not
the prerogative of an intermediate appellate court to
enunciate new precepts of law or to expand existing legal
doctrines. Such is a province reserved to the Supreme
Court." Moses v. T.N.T. Red Star Exp., 725 A.2d 792,
801 (Pa. Super. 1999). It is well-settled that “the Superior
Court is an error correcting court and we are obliged to
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apply the decisional law as determined by the Supreme
Court of Pennsylvania.” Commonwealth v. Montini, 712
A.2d 761, 769 (Pa. Super. 1998).
In re M.P., 204 A.3d 976, 980-81 & n.2 (Pa. Super. 2019).
Appellant’s notice of appeal was filed November 25, 2018 – after the
deadline of Commonwealth v. Walker (June 1, 2018). Consequently,
Walker compels quashal of the current appeal.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/31/19
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