Com. v. Gould, C. ( 2020 )

J-S28030-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CARL GOULD :
:
Appellant : No. 1746 MDA 2019
Appeal from the PCRA Order Entered August 29, 2019
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0004022-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CARL ERIC GOULD :
:
Appellant : No. 1747 MDA 2019
Appeal from the PCRA Order Entered August 29, 2019
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0005383-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CARL GOULD :
:
Appellant : No. 1748 MDA 2019
Appeal from the PCRA Order Entered August 29, 2019
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0000402-2016
J-S28030-20
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CARL GOULD :
:
Appellant : No. 1749 MDA 2019
Appeal from the PCRA Order Entered August 29, 2019
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0000403-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CARL GOULD :
:
Appellant : No. 1750 MDA 2019
Appeal from the PCRA Order Entered August 29, 2019
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0001870-2016
BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED AUGUST 13, 2020
Appellant, Carl Eric Gould, appeals pro se from the order entered August
29, 2019, which dismissed his petition for collateral relief filed pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
In August 2015, the Commonwealth criminally charged Appellant with
numerous drug-related offenses. In the information docketed at
CP-36-CR-0004022-2015 (“4022-2015”), the Commonwealth charged
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Appellant with two counts of possession with intent to deliver (“PWID”). In
the information docketed at CP-36-CR-0005383-2015 (“5383-2015”), the
Commonwealth charged Appellant with PWID (cocaine), possession of drug
paraphernalia, and conspiracy.1 Following a bench trial, the court found
Appellant guilty of the aforementioned crimes and sentenced him to an
aggregate term of two and one-half to seven years' incarceration. This Court
affirmed Appellant’s judgment of sentence on May 9, 2018 and our Supreme
Court subsequently denied allocatur on October 2, 2018. Commonwealth v.
Gould, 187 A.3d 927 (Pa. Super. 2018), appeal denied 194 A.3d 1040 (Pa.
2018).
On May 9, 2019, Appellant filed a timely, pro se PCRA petition and the
PCRA court subsequently appointed counsel to represent Appellant in the
proceedings. On July 24, 2019, however, court-appointed counsel filed a
motion to withdraw as counsel and a no-merit letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On July 31, 2019, the
PCRA court issued notice that it intended to dismiss Appellant’s PCRA petition
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1 In addition, the Commonwealth charged Appellant with similar drug charges
in the information docketed at CP-36-CR-0000402-2016 (“0402-2016”),
CP-36-CR-0000403-2016 (“0403-2016”), and CP-36-CR-0001870-2016
(“1870-2016”). The trial court, however, dismissed the charges lodged at
dockets 0402-2016 and 0403-2016 and the Commonwealth nolle prossed the
charges listed at docket 1870-2016. See N.T. Suppression Hearing, 9/15/17,
at 21-22.
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in 20 days without holding a hearing. PCRA Court Order, 7/31/19, at 1; see
also Pa.R.Crim.P. 907(1). Appellant filed a response to the Turner/Finley
letter on August 15, 2019. The PCRA court dismissed Appellant’s petition and
granted counsel leave to withdraw on August 29, 2019.2 PCRA Court’s Order,
8/29/19, at 1.
On October 1, 2019, Appellant filed a timely pro so notice of appeal to
this Court.3 The notice of appeal contained multiple trial court docket
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2 The PCRA court’s 907 notice and its order dismissing Appellant’s PCRA
petition listed five docket numbers: 4022-2015, 5383-2015, 0402-2016,
0403-2016, and 1870-2016. See PCRA Court’s Order, 7/31/19, at 1; PCRA
Court’s Order, 8/29/19, at 1. Appellant’s notice of appeal also listed each of
the aforementioned five trial court docket numbers. Appellant, however, was
only convicted for the crimes docketed at 4022-2015 and 5383-2015. As
mentioned above, the trial court dismissed dockets 0402-2016 and
0403-2016. The Commonwealth also nolle prossed the charges docketed at
1870-2016.
3Pursuant to Pa.R.A.P. 903, a “notice of appeal. . . shall be filed within 30
days after the entry of the order from which the appeal is taken.” Pa.R.A.P.
903(a). This Court, however, previously recognized that:
[t]he pro se prisoner's state of incarceration prohibits him
from directly filing an appeal with the appellate court and
prohibits any monitoring of the filing process. Therefore[,]
. . . a pro se prisoner's appeal shall be deemed to be filed
on the date that he delivers the appeal to prison authorities
and/or places his notice of appeal in the institutional
mailbox.
Commonwealth v. Perez, 799 A.2d 848, 851 (Pa. Super. 2002) (parallel
citations omitted).
Herein, we conclude that Appellant filed a timely notice of appeal. The PCRA
court dismissed Appellant’s PCRA petition on August 29, 2019. Thus, to be
considered timely, Appellant needed to file his notice of appeal by September
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numbers.4 On October 24, 2019, the PCRA ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b)(1). That order complied with all of the requirements set forth in Rule
1925(b)(3). Appellant, however, did not file a concise statement. As such, in
the PCRA court’s Rule 1925(a) opinion, the PCRA court declared that all of
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30, 2019. See 1 Pa.C.S.A. § 1908. The trial court’s docket reflects that
Appellant filed his pro se notice of appeal on October 1, 2019. Nonetheless,
as Appellant is a pro se prisoner, he is entitled to the benefit of the prisoner
mailbox rule. As such, we may accept “any reasonably verifiable evidence”
that Appellant “deposit[ed] the appeal with the prison authorities” on or before
September 30, 2019. Perez, 799 A.2d at 851. Appellant’s notice of appeal
dated September 22, 2019 supports the conclusion that he timely deposited
the notice with prison authorities. Accordingly, for purposes of this matter,
we shall treat Appellant’s notice of appeal as timely filed.
4 Our review of the certified record reveals that five separate photocopies of
Appellant’s notice of appeal, each listing docket numbers 4022-2015,
5383-2015, 0402-2016, 0403-2016, and 1870-2016, were entered on the trial
court dockets, and accordingly, on this Court's docket. On December 16,
2019, this Court issued a rule to show cause why the appeal should not be
quashed based upon our Supreme Court’s decision in Commonwealth v.
Walker, 185 A.3d 969 (Pa. 2018) (holding that “where a single order resolves
issues arising on more than one docket, separate notices of appeal must be
filed for each of those cases” pursuant to Pa.R.A.P. 341 and its note).
Appellant did not file a response. On July 9, 2020, however, an en banc panel
of this Court decided Commonwealth v. Johnson, 2020 WL 3869723 (Pa.
Super. 2020) (en banc) concerning the proper application of Commonwealth
v. Walker, 185 A.3d 969 (Pa. 2018) in light of Commonwealth v. Creese,
216 A.3d 1142 (Pa. Super. 2019) (reading Walker as a mandate to quash
appeal unless notice of appeal contains only one trial court docket number).
The Johnson Court explicitly overruled Creese, supra and held that as long
as the appellant files a separate notice of appeal at each trial court docket,
“[t]he fact that the notices [of appeal] contained [more than one trial court
docket number] is of no consequence.” Id. at *11. Accordingly, we decline
to quash the instant appeal.
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Appellant’s claims on appeal must be deemed waived. PCRA Court Opinion,
11/27/19, at 1.
We agree with the PCRA court and conclude that, since Appellant failed
to comply with the PCRA court's order to file and serve a concise statement of
errors complained of on appeal, Appellant waived all of his claims on appeal.5
Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not included in the [Rule 1925(b)
s]tatement ... are waived”); Commonwealth v. Castillo, 888 A.2d 775, 780
(Pa. 2005) (“in order to preserve their claims for appellate review, appellants
must comply whenever the trial court orders them to file a statement of
matters complained of on appeal pursuant to Pa.R.A.P. 1925. Any issues not
raised in a Pa.R.A.P. 1925(b) statement will be waived.”) (internal citations,
quotations, and corrections omitted) (some internal capitalization omitted).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/13/2020
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5 Appellant is not eligible for the remand procedure contemplated at Pa.R.A.P.
1925(c)(3) since he was not represented by counsel on October 24, 2019,
when the PCRA ordered the filing of a concise statement pursuant to Pa.R.A.P.
1925(b)(1). See Pa.R.A.P. 1925(c)(3) (permitting remand in criminal cases
where appellate court concludes that counsel for a defendant has been per se
ineffective in failing to file, or to timely file, a concise statement).
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