Com. v. Pickard, K. ( 2020 )

J-S20003-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEVIN PICKARD :
:
Appellant : No. 3443 EDA 2018
Appeal from the Judgment of Sentence Entered August 17, 2012
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0013280-2010,
CP-51CR-0013277-2010, CP-51CR-0013279-2010
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEVIN PICKARD :
:
Appellant : No. 2164 EDA 2019
Appeal from the Judgment of Sentence Entered August 17, 2012
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0013277-2010,
CP-51-CR-0013279-2010, CP-51-CR-0013280-2010
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEVIN PICKARD :
:
Appellant : No. 2165 EDA 2019
J-S20003-20
Appeal from the Judgment of Sentence Entered August 17, 2012
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0013277-2010,
CP-51-CR-0013279-2010, CP-51-CR-0013280-2010
BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 29, 2020
Appellant, Kevin Pickard, appeals1 nunc pro tunc from the judgment of
sentence entered on August 17, 2012, at trial court docket numbers CP-51-
CR-0013277-2010, CP-51-CR-0013279-2010, and CP-51-CR-0013280-
2010.2 After careful review, we conclude that we are constrained to remand
for further proceedings consistent with this Memorandum.
At the outset, we must review a procedural matter and determine if
these consolidated appeals are properly before us. The record reveals that
trial court docket numbers CP-51-CR-0013277-2010, CP-51-CR-0013279-
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1 On September 9, 2019, this Court sua sponte consolidated the above-
captioned appeals pursuant to Pa.R.A.P. 513.
2 In his separate notices of appeal filed at each trial court docket number,
Appellant purports to appeal from the November 19, 2018 order denying his
nunc pro tunc post-sentence motion. It is well settled that an appeal lies from
the judgment of sentence, not the denial of post-sentence motions. See,
e.g., Commonwealth v. Pratt, 930 A.2d 561, 562 n.1 (Pa. Super. 2007).
We have corrected the appeal paragraphs accordingly.
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2010, and CP-51-CR-0013280-2010 were joined for trial,3 and Appellant
proceeded to a jury trial that began on June 13, 2012. On June 25, 2012, the
jury found Appellant guilty of the following crimes: one count of aggravated
assault at trial court docket number CP-51-CR-0013279-2010; a second count
of aggravated assault at trial court docket number CP-51-CR-0013280-2010;
and a third count of aggravated assault and one count of possessing an
instrument of crime (“PIC”) at trial court docket number CP-51-CR-0013277-
2010.4 N.T, 6/25/12, at 10-12.
On August 10, 2012, the trial court sentenced Appellant to three
concurrent terms of five to ten years of incarceration followed by five years of
probation on each of the aggravated-assault convictions and a concurrent
term of five years of probation for PIC. N.T., 8/10/12, at 18. The trial court
specified that the aggregate sentence was five to ten years of incarceration
followed by five years of probation. Id.
On August 16, 2012, the Commonwealth filed a motion for
reconsideration, averring that the aggregate sentence was too lenient and
asking the trial court to impose a longer term of total confinement.
Commonwealth’s Motion for Reconsideration, 8/16/12, at 2-5. On August 17,
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3 A fourth trial court docket number, CP-51-CR-0015074-2010, was also
joined for trial; however, CP-51-CR-0015074-2010 is not part of the instant
appeal.
4All three aggravated assault counts were convictions under 18 Pa.C.S. §
2702(a)(1), and the single count of PIC was a violation of 18 Pa.C.S. § 907(a).
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2012, the trial court granted the Commonwealth’s motion for reconsideration
and vacated the August 10, 2012 sentencing order. The trial court
resentenced Appellant as follows: at trial court docket number CP-51-CR-
0013277-2010, the trial court imposed a sentence of five to ten years of
incarceration for aggravated assault, followed by a consecutive term of two to
four years of incarceration for PIC. N.T., 8/17/12, at 27. At trial court docket
number CP-51-CR-0013279-2010, the trial court sentenced Appellant to a
consecutive term of five to ten years of incarceration for aggravated assault,
id. at 27-28, and at trial court docket number CP-51-CR-0013280-2010, the
trial court imposed another consecutive sentence of five to ten years of
incarceration. Id. at 28. The trial court ordered Appellant to serve the
sentences consecutively, resulting in an aggregate sentence of seventeen to
thirty-four years of incarceration. Id. Appellant did not file a direct appeal.
On November 15, 2012, Appellant filed a timely pro se petition pursuant
to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.
Thereafter, Appellant, pro se, filed numerous documents with the PCRA court,
and eventually, the PCRA court appointed counsel.5 Counsel filed an amended
PCRA petition on October 15, 2014, and the PCRA court held a hearing on
January 29, 2016. Following the hearing, the PCRA court reinstated
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5The record is unclear concerning the delay between the filing of Appellant’s
pro se PCRA petition and the appointment of counsel.
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Appellant’s right to file post-sentence motions and a direct appeal nunc pro
tunc. Order, 1/29/16.
On February 3, 2016, the Commonwealth filed a timely appeal from the
January 29, 2016 order that was docketed at Superior Court docket number
401 EDA 2016. Notwithstanding the Commonwealth’s appeal, five days later,
Appellant filed a post-sentence motion nunc pro tunc challenging the
discretionary aspects of his sentence. Post-sentence Motion, 2/8/16. The
docket reflects that Appellant’s post-sentence motion was denied by operation
of law on June 13, 2016. Appellant filed an appeal to this Court on July 12,
2016, that was docketed at Superior Court docket number 2221 EDA 2016.
On September 18, 2017, this Court stayed the appeal at 2221 EDA 2016
pending a decision in the Commonwealth’s appeal at 401 EDA 2016. On
October 25, 2017, we affirmed the PCRA court’s January 29, 2016 order
reinstating Appellant’s right to file post-sentence motions and a direct appeal
nunc pro tunc in the Commonwealth’s appeal at 401 EDA 2016.
Commonwealth v. Pickard, 179 A.3d 599, 401 EDA 2016 (Pa. Super. filed
October 25, 2017) (unpublished memorandum). On March 16, 2018, this
Court dismissed Appellant’s appeal at 2221 EDA 2016 due to Appellant’s
failure to file a brief.
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While we are constrained to conclude that the appeal at 2221 EDA 2016
was not properly before this Court, it is of no moment.6 As the PCRA court
pointed out, the Commonwealth’s appeal precluded the PCRA court from
addressing Appellant’s post-sentence motion. PCRA Opinion, 10/5/16, at 2
(citing Pa.R.A.P. 1701(a)).7 The PCRA court correctly concluded that
Appellant’s February 8, 2016 post-sentence motion was premature. See
Commonwealth v. Pearson, 685 A.2d 551, 556–557 (Pa. Super. 1996)
(pursuant to Pa.R.A.P. 1701(a), once a notice of appeal is filed, the trial court
is divested of jurisdiction to act further in the matter); see also
Commonwealth v. Melvin, 103 A.3d 1, 58 (Pa. Super. 2014) (once an
appeal is filed, the trial court has no jurisdiction to modify its sentence).
As noted above, despite the impropriety of Appellant’s February 8, 2016
post-sentence motion, the record reflects an administrative order stating the
motion was “denied by operation of law.” Order, 6/13/16. Contrary to the
June 13, 2016 order, the PCRA court explained in its October 5, 2016 opinion
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6This Court did not reach the merits of the appeal at 2221 EDA 2016, and our
order dismissing the appeal in no way hampers our review in the instant
appeal. See generally Commonwealth v. Reed, 971 A.2d 1216, 1220-
1221 (Pa. 2009) (distinguishing a dismissal of an appeal on a procedural basis
such as the failure to file a brief versus a dismissal on the merits that
implicates the law of the case doctrine).
7Rule 1701(a) provides, in relevant part, as follows: “after an appeal is taken
or review of a quasijudicial order is sought, the trial court or other government
unit may no longer proceed further in the matter.”
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that once the Commonwealth filed its appeal, the PCRA court lacked
jurisdiction to consider Appellant’s post-sentence motion, and the PCRA court
“dismissed [Appellant’s premature post-sentence motion] pending the
outcome of the Commonwealth’s appeal [at 401 EDA 2016].” PCRA Opinion,
10/5/16, at 2-3. Thus, there is a conflict in the record concerning the basis
upon which Appellant’s February 8, 2016 nunc pro tunc post-sentence motion
was denied.
It is well settled that this Court may raise issues of jurisdiction sua
sponte. Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa. Super.
2007). It appears that in an abundance of caution, Appellant filed the appeal
at Superior Court docket number 2221 EDA 2016 after the clerk of courts8
filed the June 13, 2016 administrative order denying the post-sentence motion
by operation of law. However, we agree with the PCRA court’s conclusion that
once the Commonwealth filed its notice of appeal, the PCRA court lacked
jurisdiction to address Appellant’s February 8, 2016 post-sentence motion.
PCRA Opinion, 10/5/16, at 2-3 (citing Pa.R.A.P. 1701(a)); Pearson, 685 A.2d
at 556-557. We resolve the conflict in the record as follows: the
Commonwealth’s appeal rendered Appellant’s post-sentence motion
premature; the order deeming the post-sentence denied by operation of law,
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8See Pa.R.Crim.P. 720(B)(3)(c) (“When a post-sentence motion is denied by
operation of law, the clerk of courts shall … enter an order on behalf of the
court … that the post-sentence motion is deemed denied.”).
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therefore, was a legal nullity; accordingly, this Court’s dismissal of Appellant’s
appeal at 2221 EDA 2016 was unnecessary because the appeal should not
have been before our Court. See Commonwealth v. Spencer, 496 A.2d
1156, 1160 (Pa. Super. 1985) (noting that a trial court order entered without
jurisdiction was a legal nullity and an appeal therefrom was also a nullity).
Following this Court’s October 25, 2017 affirmance of the PCRA court’s
January 29, 2016 order in the appeal at 401 EDA 2016, jurisdiction was
returned to the PCRA court when the record was remanded on December 5,
2017. See Pa.R.A.P. 2572(a)(2) (providing the time in which a record on
appeal to an intermediate appellate court is to be remanded following
disposition of the appeal).9 Once jurisdiction returned to the PCRA court,
Appellant filed his nunc pro tunc post-sentence motion on December 22,
2017.10 After Appellant filed his nunc pro tunc post-sentence motion, the
PCRA court granted at least two continuances. Order, 5/11/18;11 Order,
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9The certified record in the appeal at 401 EDA 2016 was remanded to the
PCRA court on December 5, 2017.
10Appellant’s December 22, 2017 post-sentence motion nunc pro tunc was
nearly identical to Appellant’s post-sentence motion nunc pro tunc that was
prematurely filed on February 8, 2016.
11We are aware that the court had 120 days to decide the December 22, 2017
post-sentence motion pursuant to Pa.R.Crim.P. 720. When the motion was
not ruled upon, it could have been deemed denied by operation of law 120
days later on Monday, April 23, 2018. Pa.R.Crim.P. 720(B)(3)(a). When a
post-sentence motion is deemed denied, the clerk of courts must enter an
order reflecting this denial and serve copies on the parties. Pa.R.Crim.P.
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9/18/18. The PCRA court explained that “after numerous delays, the [PCRA
court] denied [the motion] on November 19, 2018.” PCRA Court Opinion,
1/10/19, at 2. On November 29, 2018, Appellant filed timely appeals at trial
court docket numbers CP-51-CR-0013277-2010, CP-51-CR-0013279-2010,
and CP-51-CR-0013280-2010. Appellant’s appeals were docketed at Superior
Court docket number 3443 EDA 2018, and Appellant’s three notices of appeal
bore all three relevant trial court docket numbers.
In Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), our Supreme
Court explained that “[t]he Official Note to Rule 341 provides a bright-line
mandatory instruction to practitioners to file separate notices of appeal.” Id.
at 976-977. “Where ... one or more orders resolves issues arising on more
than one docket or relating to more than one judgment, separate notices of
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720(B)(3)(c). A notice of appeal must be filed within thirty days of the entry
of the order denying the post-sentence motion by operation of law.
Pa.R.Crim.P. 720(A)(2)(b). Herein, the clerk of courts failed to enter an order
disposing of Appellant’s post-sentence motion. Instead, the PCRA court
granted motions to continue on May 11, 2018, and September 18, 2018. This
Court has held that there is a breakdown in the operation of the courts when
the clerk of courts fails to enter an order denying a post-sentence motion by
operation of law after 120 days under Rule 720. Commonwealth v.
Braykovich, 664 A.2d 133, 138 (Pa. Super. 1995); Patterson, 940 A.2d at
498-499. Although the clerk entered an order denying Appellant’s earlier and
prematurely filed post-sentence motion by operation of law, there was no
order entered following the filing of the December 22, 2017 post-sentence
motion. Because there was no order denying the post-sentence motion by
operation of law, and the PCRA court subsequently entered a dispositive order
on November 19, 2018, we conclude that we may consider Appellant’s current
appeal as a timely appeal from a final order. See generally Braykovich,
664 A.2d at 135-138 (discussing the impact a breakdown in the operation
court has on final orders and appellate review).
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appeals must be filed.” Id. at 976 (quoting Pa.R.A.P. 341, Note). The failure
to file separate notices of appeal at each docket requires the appellate court
to quash the appeal. Id. at 977. Our Supreme Court held that Walker applies
prospectively to appeals filed after June 1, 2018. Id. at 971.
After our Supreme Court filed its decision in Walker, a panel of our
Court decided Commonwealth v. Creese, 216 A.3d 1142 (Pa. Super. 2019)
(Strassburger, J., dissenting). In Creese, the Majority concluded that the
appellant did not comply with the requirements set forth in Walker.
Specifically, the appellant in Creese filed four identical notices of appeal, each
listing all four trial court docket numbers. Creese, 216 A.3d at 1144. The
Majority quashed the appeals holding “[this Court] may not accept a notice of
appeal listing multiple docket numbers, even if those notices are included in
the records of each case. Instead, a notice of appeal may contain only one
docket number.” Id.
In the instant case, because Appellant’s notices of appeal each displayed
more than one docket number, we issued a Rule to Show Cause as to why the
appeals should not be quashed pursuant to Walker. Rule to Show Cause,
12/7/18. Appellant did not respond. On June 25, 2019, this Court issued a
second Rule to Show Cause as to why the appeals should not be quashed
pursuant to Walker. Rule to Show Cause, 6/25/19. Appellant filed his
response on July 16, 2019, in which he asserted that he filed separate notices
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of appeal at each trial court docket number. Response to Rule to Show Cause,
7/16/19.
On August 5, 2019, this Court filed an order referring the Walker issue
to this panel and vacating the briefing schedule. Order, 8/5/19. We further
noted that although Appellant filed three separate notices of appeal on
November 29, 2018, which listed the three trial court docket numbers on each
appeal, the clerk of the trial court transmitted only one notice of appeal to the
Prothonotary of this Court for filing. Id. We concluded that the clerk of the
trial court failed to comply with Pa.R.A.P. 905(b), which provides “The clerk
shall immediately transmit to the prothonotary of the appellate court named
in the notice of appeal a copy of the notice of appeal.” Id. Therefore, in
addition to 3443 EDA 2018, we directed the Prothonotary of this Court to list
two additional Superior Court docket numbers. Id. Accordingly, these
consolidated appeals appear at Superior Court docket numbers 3443 EDA
2018, 2164 EDA 2019, and 2165 EDA 2019.
During the pendency of these appeals, an en banc panel of our Court
expressly overruled Creese’s mandate that a notice of appeal may contain
only one docket number. Commonwealth v. Johnson, ___ A.3d ___, ___,
2020 Pa. Super. 164, *5 (Pa. Super. filed July 9, 2020) (en banc)). Specifically,
the en banc Court opined that where an 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.”
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Id. Thus, pursuant to Johnson, although Appellant’s separate notices of
appeal bore more than one trial court docket number, the notices of appeal
do not run afoul of Walker or Pa.R.A.P. 341.
Next, we address the application of Pa.R.A.P. 1925. After Appellant filed
his timely notices of appeal on November 29, 2018, the PCRA court ordered
Appellant to comply with Pa.R.A.P. 1925(b) and file a statement of errors
complained of on appeal. Order, 12/3/18. Appellant failed to respond.
As a general rule, when the trial court orders an appellant to file a
Pa.R.A.P. 1925(b) statement, the appellant must comply in order to preserve
claims for appellate review; “[a]ny issues not raised in the Pa.R.A.P. 1925(b)
statement will be deemed waived.” Commonwealth v. Castillo, 888 A.2d
775, 780 (Pa. 2005) (quoting Commonwealth v. Lord, 719 A.2d 306, 309
(Pa. 1998)). However, our Supreme Court amended Pa.R.A.P. 1925 and
added a procedure for appellate courts to rectify a criminal appellant’s failure
to file a Pa.R.A.P. 1925(b) statement. The pertinent part of the amended rule
is found in subsection (c)(3), and provides as follows:
(c) Remand.
* * *
(3) If an appellant represented by counsel in a criminal case was
ordered to file a Statement and failed to do so or filed an untimely
Statement, such that the appellate court is convinced that counsel
has been per se ineffective, and the trial court did not file an
opinion, the appellate court may remand for appointment of new
counsel, the filing of a Statement nunc pro tunc, and the
preparation and filing of an opinion by the judge.
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Pa.R.A.P. 1925(c)(3). In addition, the Explanatory Note to subsection (c)(3)
provides the following guidance:
This subparagraph allows an appellate court to remand in criminal
cases only when an appellant, who is represented by counsel,
has completely failed to respond to an order to file a
Statement or has failed to do so timely. … Per se
ineffectiveness applies in all circumstances in which an
appeal is completely foreclosed by counsel’s actions, but
not in circumstances in which the actions narrow or serve to
foreclose the appeal in part. Commonwealth v. Rosado, 150
A.3d 425, 433-35 (Pa. 2016).
Pa.R.A.P. 1925, Note (emphases added).
Pursuant to Pa.R.A.P. 1925(c)(3), counsel’s failure to file a Pa.R.A.P.
1925(b) statement, as ordered, precludes appellate review, and it is
presumptively prejudicial and clear ineffectiveness. See Commonwealth v.
Burton, 973 A.2d 428, 432 (Pa. Super. 2009) (“The complete failure to file a
1925 concise statement is per se ineffectiveness because it is without
reasonable basis designed to effectuate the client’s interest and waives all
issues on appeal.”). Under Burton, “the remedy now for failure to file a 1925
concise statement is remand to allow nunc pro tunc filing of the statement.”
Id. at 431.
Accordingly, we conclude that the failure of Appellant’s counsel to file
the court-ordered Pa.R.A.P. 1925(b) statement amounts to per se
ineffectiveness. We remand for Appellant’s counsel to prepare and file a
Pa.R.A.P. 1925(b) statement nunc pro tunc within ten days of the date of this
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Memorandum and for the trial court to file a Pa.R.A.P. 1925(a) opinion within
forty-five days thereafter.
Case remanded for further proceedings consistent with this
Memorandum. Panel jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/20
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