J-S22007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

STANTON MCCREARY

                            Appellant                 No. 596 MDA 2015


                Appeal from the Order Entered January 5, 2015
                 In the Court of Common Pleas of York County
                Criminal Division at No(s): CP-67-CR-2521-2007


BEFORE: MUNDY, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.:                             FILED MARCH 11, 2016

        Appellant, Stanton McCreary, purports to appeal pro se from a January

5, 2015 order, entered in the Court of Common Pleas of York County. As

there is no such order, nor does the certified record contain any other final

order entered in this case, we quash this appeal.

        Briefly, on March 25, 2011, Appellant pled guilty to two counts of

stalking and one count of harassment,1 for which the trial court imposed an

aggregate sentence of five years’ probation. On October 29, 2012, the trial

court revoked Appellant’s probation and imposed an aggregate sentence of



____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2709 and 2709.1, respectively.
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two and one-half to five years’ imprisonment. Appellant did not file a direct

appeal with this Court.

       Appellant filed a pro se PCRA petition on August 21, 2013. The PCRA

court appointed counsel, who filed an amended petition on August 1, 2014.

On August 15, 2014, the PCRA court entered an order notifying Appellant of

its intention to dismiss his petition without a hearing under Pennsylvania

Rule of Criminal Procedure 907, and gave Appellant 20 days to file a

response.     No such response was filed, nor did the PCRA court enter an

order dismissing Appellant’s petition. Instead, PCRA counsel filed a motion

to withdraw as counsel, along with a “no-merit” letter pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v.

Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and their progeny. The

PCRA court entered an order granting counsel’s motion on October 8, 2014;

however, this order did not dismiss Appellant’s PCRA petition. On January

12, 2015, Appellant purported to file a notice of appeal to this Court in the

PCRA court from a January 5, 2015 order.         That same day, the clerk of

courts mailed a letter to Appellant explaining that no such order existed.2


____________________________________________
2
  It appears that Appellant was referencing a January 5, 2015 document,
drafted by him, attached to his notice of appeal, alleging that he had not
received any documents pertaining to the dismissal of his PCRA petition or
the granting of PCRA counsel’s motion to withdraw. Appellant’s confusion
may have stemmed from counsel’s Turner/Finley letter, which erroneously
suggested that such a final dismissal order existed by stating that Appellant
“should probably request and [sic] extension to the Superior Court of
(Footnote Continued Next Page)


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The letter also stated that his notice of appeal would be forwarded to this

Court, although the certified record does not contain any evidence of the

mailing. On February 10, 2015, Appellant filed a petition for review in this

Court which was docketed at 9 MDM 2015.           On April 6, 2015, this Court

entered an order stating that said petition was granted “only to the extent

that it shall be treated as a Notice of Appeal, filed in the trial court on

January 12, 2015.”3 Superior Court Order, 9 MDM 2015, 4/6/15, at 1. Our

order did not address whether this Court has appellate jurisdiction to

entertain Appellant’s appeal on its merits.

      Pennsylvania Rule of Appellate Procedure 301(a) states that “no order

of a court shall be appealable until it has been entered upon the appropriate

docket in the lower court.” Pa.R.A.P. 301(a). This Court has explained that

Rule 301(a) presents a jurisdictional issue, which is non-waivable, and may

be raised by this Court sua sponte. Johnston the Florist, Inc. v. TEDCO

Constr. Corp., 657 A.2d 511, 515 (Pa. Super. 1995) (en banc); see also

Commonwealth v. Gaines, 127 A.3d 15, 17 (Pa. Super. 2015) (en banc)


                       _______________________
(Footnote Continued)

Pennsylvania to file any further documents on [his] behalf or by privately
retained counsel.” Turner/Finley Letter, 9/29/14, at 2.
3
  We note that since Appellant’s petition for review was partially granted by
this Court, prior PCRA counsel was reappointed, but then Appellant was
permitted to proceed pro se following a hearing pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).




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(plurality) (stating, “[w]e may raise issues concerning our appellate

jurisdiction sua sponte[]”).

       Instantly, neither the certified record nor the PCRA court’s docket

contains a final order dismissing Appellant’s PCRA petition. Rule 910 states

that “[a]n order granting, denying, dismissing, or otherwise finally disposing

of a petition for post-conviction collateral relief shall constitute a final order

for purposes of appeal.” Pa.R.Crim.P. 910. As this Court recently explained,

“[b]y its plain text, Rule 910 has no exceptions. It is absolute.”       Gaines,

supra.    The PCRA court’s Rule 907 notice did not grant, deny, or dismiss

any part of Appellant’s petition, it only gave him notice that it would do so in

the future and that he may file a response within 20 days if he wished to do

so. PCRA Court Order, 8/15/14, at 2. As a result, it was not a final order.

Furthermore, we have thoroughly reviewed the certified record and have

found no subsequent final order dismissing Appellant’s PCRA petition.

Therefore, Rule 301(a) has not been satisfied in this case.

       Based on the foregoing, we conclude that the certified record is devoid

of a final order dismissing Appellant’s PCRA petition, as one was never

entered.4    Accordingly, we conclude that we are without jurisdiction and

quash this appeal.


____________________________________________
4
  We note that Appellant may file a new notice of appeal within 30 days of
the date on which the PCRA court enters its final order disposing of
Appellant’s PCRA petition.



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     Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/11/2016




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