Com. v. Sears, D. ( 2021 )

J-A30030-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
DA’RAN MALIK SEARS : No. 292 MDA 2019
Appeal from the PCRA Order Entered January 17, 2019
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0001293-2013
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
DA’RAN MALIK SEARS : No. 293 MDA 2019
Appeal from the PCRA Order Entered January 17, 2019
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0000293-2014
BEFORE: DUBOW, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY NICHOLS, J.: FILED: JANUARY 13, 2021
The Commonwealth appeals from the order granting Appellee Da’Ran
Malik Sears’ petition for relief under the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9545. Based on our review of the record, the
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* Retired Senior Judge assigned to the Superior Court.
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Commonwealth’s response to our order, and in light of Commonwealth v.
Walker, 185 A.3d 969 (Pa. 2018), we quash.
Briefly, Appellee was charged at Docket No. 1293-2013 with involuntary
manslaughter and receiving stolen property for a shooting that occurred in
2013. See Docket No. 1293-2013. Approximately nine months later, the
Commonwealth filed an additional charge at Docket No. 293-2014 for third-
degree murder based on the same underlying incident. See Docket No. 293-
2014.
Following a consolidated jury trial, Appellee was convicted of all charges
and sentenced to twenty-to-fifty years’ incarceration. Appellee filed a direct
appeal, and this Court affirmed Appellee’s judgment of sentence on February
14, 2017. See Commonwealth v. Sears, 1738 MDA 2015, at 2 (Pa. Super.
filed Feb. 14, 2017) (unpublished mem.).
Appellee filed a timely pro se PCRA petition on November 27, 2017. The
PCRA court appointed counsel, who filed an amended petition on Appellee’s
behalf. Therein, Appellee argued that his trial counsel was ineffective for
advising him not to enter an open guilty plea to the charges at Docket No.
1293-2013 and for failing to anticipate that the Commonwealth would file the
third-degree murder charge at Docket No. 293-2014, which resulted in
Appellee receiving a much greater sentence. Am. PCRA Pet., 1/24/18, ¶ 26,
50. The PCRA court conducted an evidentiary hearing at which trial counsel
and Appellee testified.
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On January 17, 2019, the PCRA court issued an order granting
Appellee’s petition. Specifically, the PCRA court vacated Appellee’s judgments
of sentence at Docket Nos. 1293-2013 and 293-2014 and scheduled a new
guilty plea and sentencing hearing. PCRA Ct. Order, 1/17/19. The PCRA court
specified that Appellee would “be permitted to plead open to all counts under
[Docket No.] 1293-2013. The plea of guilty and the sentence on said counts
shall preclude the Commonwealth from proceeding with prosecution under
[Docket No.] 293-2014.” Id. In addition to listing both trial court docket
numbers, the PCRA court’s order was placed in the record for both cases.
On February 12, 2019, the Commonwealth filed one notice of appeal
that listed both docket numbers. The clerk of courts docketed the
Commonwealth’s notice of appeal at both trial court docket numbers and
placed a copy of the notice in the record for each case.
On February 22, 2019, this Court issued a rule to show cause for the
Commonwealth to explain why we should not quash the appeal based on our
Supreme Court’s decision in Walker. Order, 2/22/19. On March 8, 2019, the
Commonwealth filed a response indicating that “[i]t was the Commonwealth’s
intention that only one appeal be filed, that being to Docket No. 293-2014 and
assigned Superior Court Docket No. 293 MDA 2019. We would request that
the appeal at 292 MDA 2019 be withdrawn.” Commonwealth’s Resp. to Rule
to Show Cause, 3/8/19. On April 1, 2019, this Court discharged the rule to
show cause and referred the issue to this panel.
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The Commonwealth subsequently filed a court-ordered Pa.R.A.P.
1925(b) statement and the PCRA court issued a Rule 1925(a) opinion
addressing the Commonwealth’s claims.
After reviewing the record, the Commonwealth’s brief, and the
Commonwealth’s response to this Court’s rule to show cause, it was unclear
whether the Commonwealth (1) filed a single notice of appeal at one trial court
docket number; or (2) filed two identical notices of appeal, one at each trial
court docket number. Therefore, on October 30, 2020, we issued an order
directing the Commonwealth to clarify whether it filed separate notices of
appeal at each docket number in compliance with Walker and
Commonwealth v. Jerome Johnson, 236 A.3d 1141 (Pa. Super. 2020) (en
banc). Order, 10/30/20.
The Commonwealth filed a response indicating that “[a] separate
[n]otice of [a]ppeal was not filed for each case; both docket numbers were
incorrectly listed on the [n]otice of [a]ppeal.” Commonwealth’s Resp. to
Order, 11/9/20, at 1. The Commonwealth reiterated that it “only intended to
file one appeal under [Docket No.] 293-2014.” Id. at 2. The Commonwealth
also acknowledged that the original notice of appeal was “defective,” but
referred this Court to the first argument in its appellate brief. Id. at 3.
Appellee filed a response requesting that we quash the Commonwealth’s
appeal based on Walker and Jerome Johnson. Appellee’s Resp. to Order,
11/13/20.
On appeal, the Commonwealth raises the following issues:
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1. Commonwealth v. Walker does not require quashal under
the circumstances of [this] case.
2. Trial counsel was not ineffective for failing to advise [Appellee]
of third degree murder[,] an offense with which [Appellee] was
not charged.
3. Counsel was not ineffective for not having a guilty plea for third
degree murder scheduled prior to August 1, 2014.
Commonwealth’s Brief at 1 (some formatting altered).
Initially, we must address the Commonwealth’s claim that even though
it “filed a single notice of appeal from an order granting [PCRA] relief on two
dockets, under the circumstances of the case, [Walker] is inapplicable.”
Commonwealth’s Brief at 10.
The Commonwealth first argues that, unlike the defendants in Walker,
Appellee “effectively stipulated to consolidation” by filing a single PCRA
petition that listed both docket numbers. Id. at 10. Additionally, the
Commonwealth asserts that Appellee did not raise separate ineffectiveness
claims at each docket, but instead “stated only a single claim of ineffectiveness
by virtue of counsel’s action at [Docket No.] 1293-2013.” Id. at 11. The
Commonwealth explains that the PCRA court’s order vacated Appellee’s third-
degree murder conviction at Docket No. 293-2014 and “barred further
prosecution on that charge if [Appellee] pled to [Docket No. 1293-2013].” Id.
at 11 n.2. Therefore, the Commonwealth reiterates that its notice of appeal
was “really only from [Docket] 293-2014 although the relief was based upon
a finding of ineffectiveness under [Docket] 1293-2013.” Id.
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The Commonwealth also claims that Appellee is “the party responsible
for the procedure that caused the Commonwealth to file but one appeal.” Id.
at 10. Specifically, the Commonwealth contends that Appellee’s filing of one
PCRA petition listing two docket numbers “placed the Commonwealth in the
untenable position of filing one appeal for two separate dockets.” Id. at 11.
The Commonwealth concludes that “under the circumstances of this case,
Walker is not applicable and the appeal should not be quashed.” Id.
Appellee responds that he did not stipulate to consolidation “as is
envisioned by the Walker decision and Pennsylvania’s Rules of Appellate
[P]rocedure.” Appellee’s Brief at 9. Further, he asserts that “filing a single
PCRA petition at the trial court level is not a stipulation to consolidation at the
appellate level.” Id. Appellee argues that not only did he “raise issues related
to each docketed case, but the Commonwealth has appealed both issues and
argued both issues in its brief.” Id. at 10. Therefore, Appellee concludes that
“[t]he Commonwealth violated the bright line rule of Pa.R.A.P. 341 and
Walker” and that therefore, “quashal of the appeal is required.” Id. at 11.
In Walker, our Supreme Court concluded that Pa.R.A.P. 341 provides a
“bright-line mandatory instruction to practitioners to file separate notices of
appeal.” Walker, 185 A.3d at 976-77. The Walker Court held that “where
a single order resolves issues arising on more than one docket, separate
notices of appeal must be filed for each case.” Id. at 971. “The failure to do
so requires the appellate court to quash the appeal.” Id. at 977.
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In Commonwealth v. Creese, 216 A.3d 1142 (Pa. Super. 2016), the
appellant filed a notice of appeal listing four trial court docket numbers. On
appeal, a panel of this Court noted that although it was impossible to
determine whether counsel filed separate notices of appeal, it “appear[ed]
that one notice of appeal listing all four docket numbers was simply
photocopied and placed in each record, conceivably by the clerk of courts.”
Creese, 216 A.3d at 1144 n.1. Nonetheless, the Creese panel interpreted
Walker to mean that “we may not accept a notice of appeal listing multiple
docket numbers, even if those notices are included in the records of each
case.” Id. at 1144. Therefore, the Creese panel quashed the appellant’s
appeal, holding that “a notice of appeal may contain only one docket number.”
Id.
Recently, an en banc panel of this Court revisited our prior decision in
Creese. Jerome Johnson, 236 A.3d at 1148. Specifically, the Court
expressly overruled Creese to the extent that it required notices of appeal to
contain no more than one docket number. Id. However, the Court reaffirmed
Creese for the proposition that “a clerk of courts has only ministerial powers”
and “cannot perfect an appeal at multiple dockets when a lawyer fails to file
separate notices.” Id. at 1147 n.5 (citing Creese, 216 A.3d at 1144 n.2).
Here, the Commonwealth concedes that, like the appellant in Walker,
it filed a single notice of appeal from an order that resolved issues arising at
more than one docket number. See Commonwealth’s Brief at 10. Although
the Commonwealth listed two docket numbers on its notice of appeal, that
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fact alone does not require quashal. See Jerome Johnson, 236 A.3d at
1148.
However, while the Commonwealth’s notice of appeal appears in the
record for both cases, the Commonwealth specifically stated that a “separate
notice of appeal was not filed for each case,” and that it only intended to
appeal from the PCRA court’s order as it related to Docket No. 293-2014. See
Commonwealth’s Resp. to Order, 11/9/20, at 1 (emphasis in original).
Therefore, although a notice of appeal appears in the record for each case, it
is evident from the Commonwealth’s assertions that it failed to comply with
Walker and Rule 341(a). Under these circumstances, we are constrained to
quash.1 See Jerome Johnson, 236 A.3d at 1147 n.5 (reiterating that “the
clerk of courts cannot perfect an appeal at multiple dockets when a lawyer
fails to file separate notices”); cf. Commonwealth v. Rebecca Johnson,
236 A.3d 63 (Pa. Super. 2020) (concluding that, irrespective of whether the
defendant included multiple docket numbers on each notice of appeal, Walker
did not require quashal where the defendant filed three separate notices of
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1 We recognize that there may be instances where remand is appropriate for
a party to correct a purely technical defect in an otherwise timely notice of
appeal. See Commonwealth v. Williams, 106 A.3d 583 (Pa. 2014). Here,
however, the Commonwealth has repeatedly stated that it intentionally filed
a single notice of appeal in an effort to raise issues solely relating to Docket
No. 293-2014. Nonetheless, as discussed herein, the Commonwealth’s issues
relate to both docket numbers. Under these circumstances, we conclude that
remand is inappropriate. See id. at 588 (stating that the note to Pa.R.A.P.
902 “indicates that dismissal of a defective appeal remains an alternative
where the appellate court determines that an appellant has failed to take the
necessary steps to correct an identified defect”).
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appeal, one at each lower-court docket number) (relying on Jerome
Johnson, 236 A.3d at 1148).
Finally, we reject the Commonwealth’s claim that it only intended to
appeal from the order as it related to Docket No. 293-2014. In its brief, the
Commonwealth specifically challenges the PCRA court’s finding of
ineffectiveness in relation to Docket No. 1293-2013, which ultimately led to
the PCRA court’s disposition in both cases. See Commonwealth’s Brief at 11-
16. In any event, the PCRA court’s order clearly resolved issues pertaining to
both docket numbers, as the order vacated the sentences at both docket
numbers so that Appellant could plead guilty at Docket No. 1293-2013 and
barred the Commonwealth from proceeding with the third-degree murder
charge at Docket No. 293-2014. Therefore, because the PCRA court’s order
resolved issues pertaining to both trial court docket numbers, quashal is
necessary under Walker.
In sum, because the PCRA court’s order resolved matters relating to two
docket numbers, the Commonwealth was required to file two separate notices
of appeal. See Walker, 185 A.3d at 976-77. Because the Commonwealth
confirmed that it failed to do so, we are constrained to quash. See id.; see
also Jerome Johnson, 236 A.3d at 1148.
Appeal quashed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/13/2021
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