J-S66029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WILLIAM JACKSON                            :
                                               :
                       Appellant               :   No. 2831 EDA 2018

             Appeal from the PCRA Order Entered August 29, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0015799-2009,
              CP-51-CR-0015800-2009, CP-51-CR-0015801-2009

BEFORE: STABILE, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.:                            FILED JANUARY 23, 2020

        Appellant William Jackson appeals from the order dismissing his first

Post Conviction Relief Act1 (PCRA) petition. Appellant contends the PCRA court

erred by dismissing his petition without an evidentiary hearing. We affirm.

        We adopt the facts as set forth by the PCRA court:

        On September 6, 2009, approximately 2:00 A.M., Decedent Kyle
        Sterling and his companions exited the parking lot of the L Spot
        Bar and Decedent accidently scraped the car of Gabrielle Jones, a
        friend of the Appellant. A dispute arose over payment for damage
        to the car which Appellant [defused] and sent Decedent on his
        way. Before Decedent’s vehicle reached the next intersection a
        barrage of gunshots were directed towards the car by the
        Appellant. After the gunshots were fired the vehicle collided with
        a dumpster truck with the Decedent observed inside, unconscious
        and non-responsive. Decedent succumbed to his injuries from a
        gunshot wound to the torso, and an autopsy determined the cause

____________________________________________


1   42 Pa.C.S. §§ 9541-9546.
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       of death was homicide. One of the other occupants in the vehicle
       was also shot, but survived.

       McCollum and Wells, occupants of the fired upon vehicle, identified
       Appellant as the shooter. Similarly, Salidene Robinson and
       Khayree Harrison, who were also at the scene of the shooting,
       identified Appellant as the perpetrator. Robinson made his
       identification from a surveillance camera video that depicted the
       shooting events, while Harrison made a positive photo array
       identification.   Harrison also identified the weapon used by
       Appellant as one which Appellant always carried, disclosed that
       Appellant bragged about his good shooting skills and that he and
       other eyewitnesses were admonished not to implicate Appellant in
       the incident.

PCRA Ct. Op. at 2 (citations and footnote omitted). Following a jury trial,

Appellant was convicted of first-degree murder and sentenced to life

imprisonment. Id. at 1. This Court affirmed, and our Supreme Court denied

Appellant’s petition for allowance of appeal on September 19, 2012.

       On June 12, 2013, Appellant, acting pro se, filed an identical first PCRA

petition at all three docket numbers.2 The pro se petition alleged that trial

counsel was ineffective by failing to interview and present the testimony of

Christian Robbins, an eyewitness who would have testified that Appellant was

not the shooter. PCRA Pet., 6/12/13, at 8. The PCRA court appointed counsel,

who filed a counseled amended petition on October 16, 2014, again at all three

docket numbers, that reiterated Appellant’s pro se petition.




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2The Commonwealth filed charges against Appellant at three separate docket
numbers, one for each victim in the vehicle.


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      Following numerous continuances, PCRA counsel filed a supplement to

the counseled PCRA petition, stating in relevant part as follows:

      2. It was alleged by [Appellant] that [Christian Robbins] would
      have indicated that [Appellant] was not the shooter.

      3. [Appellant] provided [PCRA] counsel with an address where the
      alleged eyewitness could be found.

      4. [PCRA counsel] had his investigator attempt to contact the
      alleged eyewitness.      The investigator located the alleged
      eyewitness and was informed by him that he would not talk to the
      investigator. His attorney would have to be contacted.

      5. [PCRA counsel] eventually spoke with the allege[d]
      eyewitnesses’ attorney (Mary Maran, Esquire) and was informed
      that whatever information her client might have it would not be
      helpful to [Appellant]. In fact, it would only be harmful to
      [Appellant’s] interests.

Suppl. to Am. PCRA Pet., 1/18/18.

      On August 1, 2018, the PCRA court issued a Pa.R.Crim.P. 907 notice

listing all three docket numbers. The Rule 907 notice was filed at all three

docket numbers.    On August 29, 2018, the PCRA court formally dismissed

Appellant’s PCRA petition in an order docketed at each docket number:

      You are hereby advised that on August 29, 2018, the court
      entered an order dismissing your PCRA petition. You are hereby
      notified that pursuant to Pennsylvania Rule of Appellate Procedure
      903(a), you have thirty (30) days from the date of the order to
      file a notice of appeal to the Superior Court of Pennsylvania. The
      notice must be in writing and must be filed at the following address
      ....

Order, 8/29/18 (emphasis added and some formatting altered).

      On September 14, 2018, the dockets and certified record for each case

reflects the filing of Appellant’s pro se notice of appeal. Each pro se notice of

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appeal lists all three docket numbers.3 On September 27, 2018, Appellant’s

counsel filed a notice of appeal. Again, each counseled notice of appeal lists

all three docket numbers and appears to be identical to each other.

Appellant’s counsel timely filed a court-ordered Pa.R.A.P. 1925(b) statement.

       On April 22, 2019, this Court issued a rule to show cause why the appeal

should not be quashed pursuant to Commonwealth v. Walker, 185 A.3d

969 (Pa. 2018). On May 6, 2019, Appellant’s counsel filed a response stating

in relevant part:

       [I]t appears that three separate notices of appeal, one for each of
       the [three docket numbers], should have been filed even though
       all three [docket numbers] arise out of the same incident. Had
       this been done, it the[n] would have been appropriate to
       consolidate same. Although I am constrained to agree with the
       ruling in Walker[,] it seems to me that Walker would mandate a
       quashing of the instant appeal.

Resp. to Rule to Show Cause, 5/6/19, at 1; see also Commonwealth v.

Creese, 216 A.3d 1142, 1144 (Pa. Super. 2019) (holding, “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)).4

____________________________________________


3 The three notices of appeal appears identical, including Appellant’s
handwritten signature.
4As noted above, the dockets and certified records for each of the three docket
numbers reflects the filing of a notice of appeal, albeit a notice of appeal that
appears to be duplicative of each other.


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      Initially, we address whether we must quash the appeal under Creese

and Walker, which this Court summarized in Commonwealth v. Stansbury,

___ A.3d ___, 2019 WL 4197218, *2 (Pa. Super. filed Sept. 5, 2019), as

follows:

      In [Walker], the High Court held that an appeal must be quashed
      if an appellant fails to file separate notices of appeal at each
      docket number implicated by an order resolving issues that
      involve more than one trial court docket will result in quashal of
      the appeal, as is the procedure indicated in the Note to Pa.R.A.P.
      341. The Walker Court acknowledged that its decision “was
      contrary to decades of case law from this Court and the
      intermediate appellate courts[.]” Hence, the Court held that its
      ruling applied only prospectively, and directed that the Rules be
      amended to comport with the Walker decision.

Stansbury, ___ A.3d at ___, 2019 WL 4197218, at *2 (citation omitted).

      In Stansbury, the PCRA court “entered a single order, at both criminal

case docket numbers under one caption, dismissing [the defendant’s] PCRA

petition and granting counsel’s request to withdraw.” Id. at *1. In pertinent

part, the order advised the defendant “that he has thirty days from this day,

to file a written notice of appeal to the Superior Court. Said notice of appeal

must be filed with the Clerk of Courts of Philadelphia County-Criminal Division

. . . .” Id. (emphasis in original and citation omitted).

      The Stansbury Court refused to quash the appeal based on Walker,

reasoning as follows:

      it has long been the law of this Commonwealth that the failure to
      file a timely appeal as a result of a breakdown in the court system
      is an exception to that general rule.




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        We have many times declined to quash an appeal when the defect
        resulted from an appellant’s acting in accordance with
        misinformation relayed to him by the trial court.

        In the case sub judice, the PCRA court advised [the defendant]
        that he could appeal the dismissal of his PCRA petition by filing
        within thirty days a notice of appeal from its order. The court, still
        referring to its order that disposed of a PCRA petition pending at
        two separate docket numbers, again utilized the singular in
        advising [the defendant] where to file “Said notice of appeal[.]”
        Hence, while Walker required that [the defendant] file separate
        notices of appeal at each docket number, the PCRA court informed
        [the defendant] that he could pursue appellate review by filing a
        single notice of appeal.

Id. at *2-*3 (citations omitted).

        Here, similar to Stansbury, the PCRA court notified Appellant that he

had the right to appeal the court’s order denying PCRA relief. See Order,

8/29/18. The PCRA court’s order did not advise Appellant that he must file

separate notices of appeal pursuant to Walker, and that each notice of appeal

must bear only one docket number.5 See Creese, 216 A.3d at 1144. Under

the circumstances, we conclude that the PCRA court’s failure to advise

Appellant properly of his appellate rights constitutes “a breakdown in court

operations such that we may overlook” any Creese defect.6 See Stansbury,

2019 WL 4197218 at *3.

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5   We acknowledge that Creese was issued after the PCRA court’s order.
6 As we noted above, Appellant’s counsel believed that only one notice of
appeal had been filed. Resp. to Rule to Show Cause, 5/6/19, at 1. The docket
and record for each of the three docket numbers at issue reflects a
timestamped notice of appeal, however. It is unclear to this Court if



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       Appellant’s counsel raises one issue: “Did the PCRA court err in denying

[Appellant’s] PCRA petition without a hearing, even though [Appellant] pled,

and could have proven, cause for relief due to ineffective assistance of trial

counsel?” Appellant’s Brief at 3. Appellant’s counsel initially acknowledges

that the witness, Mr. Robbins, did not wish to speak with counsel’s investigator

and that the witness’s counsel had no helpful information.7          Id. at 7.

Appellant’s counsel nonetheless contends the PCRA court failed to hold a

hearing to determine if Appellant’s trial counsel attempted to interview Mr.

Robbins. Id. at 7-8.

       The standard of review for an order resolving a PCRA petition is well-

settled:

       This Court’s standard of review regarding an order denying a
       petition under the PCRA is whether the determination of the PCRA
       court is supported by the evidence of record and is free of legal
       error. The PCRA court’s findings will not be disturbed unless there
       is no support for the findings in the certified record.

Commonwealth v. Grayson, 212 A.3d 1047, 1051 (Pa. Super. 2019)

(citation omitted).

       To prevail on a claim alleging counsel’s ineffectiveness under the
       PCRA, the petitioner must demonstrate (1) that the underlying
       claim is of arguable merit; (2) that counsel’s course of conduct
       was without a reasonable basis designed to effectuate his client’s
____________________________________________


Appellant’s counsel misremembered or if the PCRA court photocopied
counsel’s notice of appeal.
7 In fact, Appellant’s counsel’s supplement to the PCRA petition stated that
the witness’s information would be harmful to Appellant. See Supplement to
Am. PCRA Pet., 1/18/18.


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      interest; and (3) that he was prejudiced by counsel’s
      ineffectiveness, i.e. there is a reasonable probability that but for
      the act or omission in question the outcome of the proceeding
      would have been different.

Id. at 1054 (citation omitted and some formatting altered). After review of

the parties’ briefs, the record, and the PCRA court’s opinion, we affirm on the

basis of the PCRA court’s opinion. See PCRA Ct. Op. at 3-4; Grayson, 212

A.3d at 1051, 1504. We agree with the PCRA court’s reasoning that Appellant

failed to plead and prove that Mr. Robbins had exculpatory testimony,

particularly given the overwhelming evidence, which included testimony from

the victims and eyewitnesses, as well as video surveillance, identifying

Appellant as the culprit.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/20




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