J-S45003-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    ODELL JOHNSON,

                             Appellant                  No. 2823 EDA 2018


           Appeal from the PCRA Order Entered September 21, 2018
             In the Court of Common Pleas of Philadelphia County
                          Criminal Division at No(s):
                           CP-51-CR-0009190-2010
                           CP-51-CR-0009191-2010

BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.:                       FILED OCTOBER 17, 2019

        Appellant, Odell Johnson, appeals from the post-conviction court’s

September 21, 2018 order dismissing his first, timely petition under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review,

we are constrained to quash.

        The facts of Appellant’s underlying case are not necessary to our

disposition of his appeal. The PCRA court summarized the procedural history

of this case, as follows:

              On March 15, 2013, following a jury trial before this [c]ourt,
        [Appellant] was convicted[, in two separate, but consolidated
        cases,] of one count of first-degree murder (18 Pa.C.S. §
        2502(a)), one count of third-degree murder (18 Pa.C.S. §
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*   Retired Senior Judge assigned to the Superior Court.
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     2502(c)), one count of carrying a firearm without a license (18
     Pa.C.S. § 6106(a)(1)), one count of carrying a firearm on a public
     street or public property in Philadelphia (18 Pa.C.S. § 6108), and
     one count of possessing an instrument of crime (“PIC”) (18
     Pa.C.S. § 907(a)).       The [c]ourt immediately imposed the
     mandatory sentence of life in prison for the first-degree murder
     charge (18 Pa.C.S. § 1102(a)(1)) and the mandatory sentence of
     life in prison for the third-degree murder charge (42 Pa.C.S. §
     9715(a)), to run consecutive to one another.2 The sentences on
     all remaining charges were to run concurrent to the murder
     sentences. [Appellant] was represented at trial, sentencing, and
     on appeal by Michael E. Wallace, Esquire. On May 23, 2014, the
     Superior Court affirmed the judgment of sentence, and on
     November 18, 2014, the Supreme Court denied allocatur.
        2 Section 9715(a) provides for a mandatory sentence of life
        imprisonment for any person convicted of third-degree
        murder who had previously been convicted at any time of
        murder or manslaughter at the time of sentencing. See
        Commonwealth v. Morris, 958 A.2d 569, 581-82 (Pa.
        Super. 2008), appeal denied, 991 A.2d 311 (Pa. 2010).

         On August 4, 2015, [Appellant] filed a pro se petition under the
     … []PCRA[]. Stephen T. O’Hanlon, Esquire was appointed to
     represent [Appellant] on November 23, 2016. On May 31, 2017,
     Mr. O’Hanlon submitted an Amended Petition, claiming that trial
     counsel, Mr. Wallace, was ineffective for failing to call Shomari
     Betancourt as a witness. On May 25, 2018 and May 31, 2018, the
     [c]ourt held a bifurcated evidentiary hearing on the issue. In
     addition, at the May 31, 2018 hearing, the [c]ourt allowed
     [Appellant] to present evidence for an additional claim, that is,
     trial counsel’s failure to call Carla Hayes Dantzler as a witness, as
     she had only come forward in the days following the first hearing.
     N.T. 5/31/18 at 4. On September 21, 2018, after issuing its
     findings of fact and conclusions of law, the [c]ourt entered an
     order dismissing [Appellant]’s PCRA petition.

PCRA Court Opinion (PCO), 11/19/18, at 1-2 (one footnote omitted).

     On September 21, 2018, Appellant filed a timely notice of appeal listing

the two docket numbers of his underlying cases. That notice of appeal was

apparently photocopied and filed in both cases.      The PCRA court ordered



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Appellant to file a Pa.R.A.P. 1925(b) statement, and he timely complied. The

court filed its Rule 1925(a) opinion on November 19, 2018. Herein, Appellant

states one issue for our review:

      1. Did the PCRA court err in dismissing Appellant’s PCRA Petition
      because trial counsel was ineffective for failing to call an available
      witness at trial, because this witness was credible and would have
      allowed Appellant to present compelling self-defense and
      voluntary manslaughter defenses at trial and would have shown
      that Appellant faced serious provocation and was not the primary
      initiator of provocation?

Appellant’s Brief at 4.

      Before we may review this issue, we must address whether Appellant’s

notice of appeal listing two docket numbers requires us to quash under

Commonwealth v. Walker, 185 A.3d 969, 971 (Pa. 2018) (holding that, for

any appeal filed after June 1, 2018, “where a single order resolves issues

arising on more than one docket, separate notices of appeal must be filed for

each of those cases”). In response to a rule to show cause order issued by

this Court on January 3, 2019, Appellant’s counsel argued, in pertinent part,

that “[q]uashing the present appeal would lea[d] to extensive further litigation

potentially including a Petition for Allocatur, a further PCRA Petition, or even

future federal filings.” Response, 2/24/19, at 2. Appellant’s counsel asked

“that the filed appeal be considered on its merits in the interests of judicial




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economy.” Id. at 3.1 On February 27, 2019, this Court discharged the rule

to show cause order and deferred the Walker issue to the present panel.

       In Commonwealth v. Williams, 206 A.3d 573 (Pa. Super. 2019), we

explained:

              Pennsylvania Rule of Appellate Procedure 341(a) directs
       that “an appeal may be taken as of right from any final order of a
       government unit or trial court.” Pa.R.A.P. 341(a). “The Official
       Note to Rule 341 was amended in 2013 to provide clarification
       regarding     proper    compliance    with    Rule     341(a)....”
       Commonwealth v. Walker, 185 A.3d 969, 976 (Pa. 2018). The
       Official Note now reads:

          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.

              In Walker, our Supreme Court construed the above-
       language as constituting “a bright-line mandatory instruction to
       practitioners to file separate notices of appeal.” Walker, 185 A.3d
       at 976-77. Therefore, the Walker Court held that “the proper
       practice under Rule 341(a) is to file separate appeals from an
       order that resolves issues arising on more than one docket. The
       failure to do so requires the appellate court to quash the appeal.”
       Id. at 977. However, the Court tempered its holding by making
       it prospective only, recognizing that “[t]he amendment to the
       Official Note to Rule 341 was contrary to decades of case law from
       this Court and the intermediate appellate courts that, while
       disapproving of the practice of failing to file multiple appeals,
       seldom quashed appeals as a result.” Id. Accordingly, the
       Walker Court directed that “in future cases Rule 341 will, in
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1Appellant’s counsel also filed an application to amend his notice of appeal,
which we denied on February 21, 2019.


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       accordance with its Official Note, require that when a single order
       resolves issues arising on more than one lower court docket,
       separate notices of appeal must be filed. The failure to do so will
       result in quashal of the appeal.” Id. (emphasis added).

Id. at 575-76.

       In light of the bright-line mandate set forth in Rule 341 and Walker,

and applied by this Court in Williams, we cannot grant Appellant the equitable

relief of overlooking his non-compliant notice of appeal. Additionally, we must

quash despite the fact that the notice of appeal was filed in each case. See

Commonwealth v. Creese, -- A.3d ----, 2019 PA Super 241, *2 (Pa. Super.

filed Aug. 14, 2019) (“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.”) (footnote

omitted).

       Consequently, because Appellant filed a single notice of appeal

containing multiple docket numbers after Walker was issued, we are

constrained to quash his appeal.2

       Appeal quashed. Jurisdiction relinquished.

       Judge Murray joins this memorandum.

       Judge Pellegrini files a dissenting memorandum.



____________________________________________


2Nevertheless, even if we did not quash, we would affirm the order denying
Appellant’s petition for the reasons set forth by the PCRA court in its Rule
1925(a) opinion. See PCO at 3-14.

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J-S45003-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/19




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