J-S50038-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES EARL GEORGE                          :
                                               :
                       Appellant               :   No. 453 WDA 2019

             Appeal from the PCRA Order Entered February 28, 2019
       In the Court of Common Pleas of Butler County Criminal Division at
                        No(s): CP-10-CR-0000330-2007,
                            CP-10-CR-0000605-2008


BEFORE:      LAZARUS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                          FILED SEPTEMBER 19, 2019

        Appellant, James Earl George, pro se, appeals from the order entered

February 28, 2019, that dismissed his third petition filed under the Post

Conviction Relief Act (“PCRA”)1 without a hearing. We quash this appeal.

        This Court has previously summarized the underlying factual and

procedural history of this action in: Commonwealth v. George, No. 569

WDA 2009, unpublished memorandum at 2-4 (Pa. Super. filed September 3,

2010); Commonwealth v. George, No. 1752 WDA 2012, unpublished

memorandum at 2-4 (Pa. Super. filed June 5, 2013); and Commonwealth v.

George, No. 1380 WDA 2015, unpublished memorandum at 3-4 (Pa. Super.

filed July 8, 2016). We therefore need not restate them at length herein.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   42 Pa.C.S. §§ 9541–9546.
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        For the convenience of the reader, we briefly note that, on October 17,

2008, at Docket Number CP-10-CR-000605-2008 (“No. 605”), a jury

convicted Appellant of three counts of aggravated assault, two counts of

simple assault, and one count of resisting arrest.2 On November 13, 2008, at

Docket Number CP-10-CR-0000330-2007 (“No. 330”), a jury convicted

Appellant of rape by forcible compulsion, rape by threat of forcible compulsion,

involuntary deviant sexual intercourses by forcible compulsion, unlawful

restraint, sexual assault, and terroristic threats with the intent to terrorize

another.3 On February 27, 2009, Appellant was sentenced to an aggregate

judgment of sentence of 300 to 600 months of incarceration for both docket

numbers.

        After unsuccessfully litigating two prior PCRA petitions, on January 14,

2019, Appellant pro se filed the instant PCRA petition. Although the PCRA

petition only listed No. 330 in the caption, Appellant notes on his cover page

that “case no. 303-2007 [sic] and 605-2008 were consolidated as one.” PCRA

Petition, 1/14/2019, at 1.

        On January 16, 2019, the PCRA court entered a notice of its intent to

dismiss all claims without a hearing pursuant to Pa.R.Crim.P. 907 (“Rule 907

Notice”); the Rule 907 Notice listed both No. 330 and No. 605 in the caption.

On February 13, 2019, Appellant filed a pro se response to the Rule 907 Notice
____________________________________________


2   18 Pa.C.S. §§ 2702(a), 2701(a), and 5104, respectively.
3 Id. §§ 3121(a)(1), (2), 3123(a)(1), 2902(a)(1), 3124.1, and 2706(a)(1),
respectively.

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listing both docket numbers. On February 28, 2019, the PCRA court dismissed

the petition without a hearing, again listing both docket numbers on the order.

On March 25, 2019, Appellant filed one notice of appeal from the two separate

dockets.

      The Official Note to Rule 341 of the Pennsylvania Rules of
      Appellate Procedure provides in relevant part:

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

      Until recently, it was common practice for courts of this
      Commonwealth to allow appeals to proceed, even if they failed to
      comply with Pa.R.A.P. 341.

           While our Supreme Court recognized that the practice of
           appealing multiple orders in a single appeal is discouraged
           under Pa.R.A.P. 512 (joint appeals), it previously
           determined that “appellate courts have not generally
           quashed [such] appeals, provided that the issues involved
           are nearly identical, no objection to the appeal has been
           raised, and the period for appeal has expired.” K.H. v. J.R.,
           826 A.2d 863, 870 (Pa. 2003) (citation omitted).

      In the Interest of: P.S., 158 A.3d 643, 648 (Pa. Super. 2017)
      (footnote omitted).

      However, on June 1, 2018, our Supreme Court in
      [Commonwealth v.] Walker[, 185 A.3d 969 (Pa. 2018),] held
      that the practice violated Pennsylvania Rule of Appellate
      Procedure 341, and the failure to file separate notices of appeal
      for separate dockets must result in quashal of the appeal. See
      Walker, 185 A.3d at 977. The Court stated unequivocally: “The
      Official Note to Rule 341 provides a bright-line mandatory
      instruction to practitioners to file separate notices of appeal. . . .


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     The failure to do so requires the appellate court to quash the
     appeal.” Id. at 976-77.

     Because the mandate in the Official Note was contrary to “decades
     of case law from this Court and the intermediate appellate courts,”
     the Walker Court announced that its holding would apply
     prospectively only. Id. at 977. Accordingly, Walker applies to
     appeals filed after June 1, 2018, the date Walker was filed. Id.

                                  *    *    *
        2 We recognize the harsh - perhaps draconian - consequence

        of quashing any appeal . . . However, our role as an
        intermediate appellate court is clear.        “It is not the
        prerogative of an intermediate appellate court to enunciate
        new precepts of law or to expand existing legal doctrines.
        Such is a province reserved to the Supreme Court.” Moses
        v. T.N.T. Red Star Exp., 725 A.2d 792, 801 (Pa. Super.
        1999). It is well-settled that “the Superior Court is an error
        correcting court and we are obliged to apply the decisional
        law as determined by the Supreme Court of Pennsylvania.”
        Commonwealth v. Montini, 712 A.2d 761, 769 (Pa.
        Super. 1998).

In re M.P., 204 A.3d 976, 980-81 & n.2 (Pa. Super. 2019).

     Appellant’s notice of appeal was filed March 25, 2019 – after the

deadline of Commonwealth v. Walker (June 1, 2018).              Consequently,

Walker compels quashal of the current appeal.

     Appeal quashed.

     Judge Murray joins the memorandum.

     Judge Lazarus notes dissent.




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J-S50038-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/2019




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