J-S51045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                                   :         PENNSYLVANIA
                                                   :
                v.                                 :
                                                   :
                                                   :
    JOSE A. VARGAS,                                :
                                                   :
                       Appellant                   :         No. 1620 MDA 2018

        Appeal from the Judgment of Sentence Entered August 29, 2018
                 in the Court of Common Pleas of Berks County
            Criminal Division at No(s): CP-06-CR-0001250-2017,
                           CP-06-CR-0001251-2017

BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                                FILED NOVEMBER 27, 2019

        Jose A. Vargas (“Vargas”) appeals from the judgment of sentence

entered following his conviction of possession of a controlled substance,

possession with intent to deliver a controlled substance, and delivery of a

controlled substance.1 We quash the appeal.

        In its Opinion, the trial court briefly described the facts underlying the

instant appeal as follows:

              On October 4, 2017, and October 26, 2017, a Berks County
        Undercover Detective (“[UC]”) was provided with pre-recorded
        U.S. currency for the purpose of engaging in undercover drug
        purchases along with an unnamed Confidential Source
        (hereinafter “CS”). On both dates, the CS and the [UD] contacted
        [Vargas] on Penn Street in the City of Reading[,] and asked
        [Vargas] to purchase drugs for the [UD].

                                     *         *       *
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1   See 35 P.S. § 780-113(a)(16), (30).
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            Eventually, [Vargas] procured and retrieved the requested
      drugs from a location nearby. In exchange, [Vargas] received ten
      dollars ($10), which he[,] in turn[,] used to buy himself drugs.

Trial Court Opinion, 5/6/19, at 1. The four packets delivered by Vargas were

determined to contain heroin.

      A jury convicted Vargas of the above-described charges.        Vargas’s

convictions were listed under two separate docket numbers: CP-06-CR-

0001250-2017 and CP-06-CR-0001251-2017. The trial court subsequently

sentenced Vargas to an aggregate term of 21 months to five years in prison,

followed by two years of probation. Thereafter, Vargas filed two Notices of

Appeal. Each Notice of Appeal listed both docket numbers, but a check mark

was placed next to the docket number of the respective appeal. Vargas also

filed a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters

complained of on appeal.

      Initially, only one of Vargas’s Notices of Appeal was forwarded to this

Court.   Consequently, on November 19, 2018, this Court issued a Rule to

Show Cause for Vargas to explain why we should not quash the appeal based

on our Supreme Court’s decision in Commonwealth v. Walker, 185 A.3d

969, 971 (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.”).   See Order, filed 11/19/18.     Counsel for Vargas filed a

response to the Rule, explaining that he had filed two identical Notices of

Appeal bearing the two trial court docket numbers.     Counsel attached the

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Notices of Appeal, which reflected that a different trial court docket number

was checked in the caption for each Notice of Appeal. This Court discharged

the Rule to Show Cause and referred the matter to the merits panel.

      Before addressing Vargas’s substantive claims, we first must determine

whether Vargas’s Notices of Appeal comply with Pa.R.A.P. 341 and our

Supreme Court’s decision in Walker. The Official Note to Pa.R.A.P. 341(a)

provides, in relevant part, as follows:

      Where...one or more orders resolves issues arising on more than
      one docket or relating to more than one judgment, separate
      notices of appeal 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).

Pa.R.A.P. 341, Official Note.

      On June 1, 2018, in Walker, our Supreme Court held that pursuant to

Rule 341, “where a single order resolves issues arising on more than one

docket, separate notices of appeal must be filed for each case.” Walker, 185

A.3d at 971. Our Supreme Court concluded that “[t]he 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. Our Supreme Court applied its holding

prospectively to appeals filed after June 1, 2018.

      Subsequently, in Commonwealth v. Creese, 2019 PA Super 241,

2019, Pa. Super. LEXIS 795 (2019), a three-judge panel of this Court quashed

an appeal, where the appellant had filed a notice of appeal listing four docket

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numbers, that was simply photocopied and placed in each record. In quashing

the appeal, the panel stated the following:

       We read our Supreme Court’s decision in Walker as instructing
       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. Instead, a notice of appeal may contain only one
       docket number. We recognize the severity of this application.
       However, if we consistently apply Walker by quashing any notice
       of appeal filed after June 1, 2018 that contains more than one
       docket number, consistent with Walker, and regardless of what
       occurred in the actual filing of that notice of appeal below, it will
       ultimately benefit appellants and counsel by providing
       clear guidance on how to satisfy Walker and Rule 341(a).
       Conversely, if we create exceptions to Rule 341 and Walker to
       avoid a harsh result, we will return to a scenario that the
       amendment to the Official Note and Walker sought to abrogate.
       In addition, we will do a disservice to appellants and counsel by
       applying the rule in a manner that is both confusing and
       inconsistent, the latter of which would be patently unfair.

Creese, 2019 PA Super 241, 2019 Pa. Super. LEXIS 795, *5 (emphasis

added).

       Our review discloses that Vargas filed two identical Notices of Appeal

listing both lower court docket numbers, but with a check mark placed

after the respective docket number for that appeal.         Consistent with the

foregoing precedent,2 Vargas has failed to comply with Pa.R.A.P. 341(a) and




____________________________________________


2 It is well established that one three-judge Superior Court panel cannot
overrule another. Commonwealth v. Taggart, 997 A.2d 1189, 1201 n.16
(Pa. Super. 2010). This action must come, if at all, from an en banc panel of
this Court or the Pennsylvania Supreme Court. Commonwealth v. Shaffer,
177 A.3d 241, 246 (Pa. Super. 2017).

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our Supreme Court’s decision in Walker. Consequently, we are constrained

to quash the instant appeal.

     Appeal Quashed.

     President Judge Panella joins the memorandum.

     P.J.E. Gantman notes dissent.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/27/2019




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