J-S27009-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
                 v.                         :
                                            :
                                            :
  LUTHER L. WARE, JR.                       :
                                            :
                       Appellant            :   No. 1087 WDA 2018

            Appeal from the PCRA Order Entered June 19, 2018
   In the Court of Common Pleas of Clearfield County Criminal Division at
                     No(s): CP-17-CR-0000239-2015,
                         CP-17-CR-0000734-2014


BEFORE:        OLSON, J., OTT, J., and COLINS*, J.

MEMORANDUM BY OLSON, J.:                                FILED MAY 21, 2019

      Appellant, Luther L. Ware, Jr., appeals pro se from the June 19, 2018

order dismissing his petition filed pursuant to the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We quash.

      As our resolution of this appeal is based on a procedural defect, we need

not set forth the factual and procedural history at length. The PCRA court

aptly summarized the rather convoluted background of the case in its

Pa.R.A.P. 1925(a) opinion. See PCRA Court Opinion, 9/20/2018, at 1-10. In

short, in 2014 and 2015, the Commonwealth, through the Pennsylvania Office

of the Attorney General, indicted Appellant on various charges related to drug

trafficking.    The Commonwealth charged Appellant at two separate docket

numbers, CP-17-CR-734-2014 and CP-17-CR-239-2015, and the cases were

consolidated for trial. A jury convicted Appellant of all but one of the charges


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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and the trial court sentenced him to 11 to 30 years’ incarceration. Appellant

filed, or attempted to file, a number of PCRA petitions, both with and without

the assistance of counsel. Ultimately, the PCRA court allowed Appellant to

proceed pro se to a hearing on his May 11, 2017, amended PCRA petition. On

June 21, 2018, after an extended hearing, the PCRA court dismissed

Appellant’s petition. This appeal followed.1

       Appellant’s brief raises the following issues for our review:

       I.     Did the [t]rial [c]ourt err when it failed to: 1. [a]ppoint
              [c]ounsel to represent Appellant when he could not afford
              to hire [c]ounsel; 2. [a]ppoint [c]ounsel at the critical stages
              of the criminal proceedings; 3. [c]onduct an on the record
              colloquy as required by Pa.Crim.P.R. 121(C) to determine if
              Appellant desired to waive his right to [c]ounsel at the
              critical stages of the criminal proceedings; 4. [g]rant [t]rial
              [c]ounsel’s [m]otion for [c]ontinuance? []

       II.    Did the Commonwealth violate Appellant’s right to [d]ue
              [p]rocess and a fair trial when it: 1. [w]illfully withheld
              impeachment evidence; 2. [m]isrepresent[ed] the facts and
              misle[d] the [c]ourt and [j]urors; 3. [f]ailed to correct false
              testimony; and 4. [w]illfully withheld [d]iscovery from pro
              se [Appellant]? []

       III.   Did the PCRA [c]ourt err when it denied Appelant a full and
              fair PCRA review on June 19, 2018, by: 1. [d]ismissing
              Appellant’s [c]onstitutional claims as previously being
              waived; 2. [d]ismissing Appellant’s [c]onstitutional claims
              without a hearing; 3. [i]gnor[ing] evidence in support of
              Appellant’s [c]onstitutional claims and evidence not
              available at the time of trial; 4. [b]eing bias[ed] against
              Appellant for proceeding pro se? []
____________________________________________


1 On July 12, 2018, the PCRA court ordered Appellant to file a concise
statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant complied on July 26, 2018. The PCRA court issued its 1925(a)
opinion on September 20, 2018.

                                           -2-
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      IV.   Was [t]rial [c]ounsel ineffective when he did not: 1. [s]eek
            suppression of the evidence when the [a]ffidavit of
            [p]robable [c]ause did not set forth a time frame when the
            [confidential informant] had observed drugs in Appellant’s
            residence and when the [a]ffidavit of [p]robable [c]ause was
            based on a deliberate material misstatement of fact; and 2.
            [w]hen he did not object to evidence that was inadmissible
            and request a mistrial? []

Appellant’s Brief at 3-3A.

      Before we consider the merits of Appellant's claims, we must first

determine whether this appeal is properly before us.        On July 24, 2018,

Appellant filed a single notice of appeal, which listed both docket numbers

CP-17-CR-734-2014 and CP-17-CR-239-2015. As Appellant failed to comply

with Pa.R.A.P. 341 and our Supreme Court’s directive in Commonwealth v.

Walker, 185 A.3d 969 (Pa. 2018), we may not reach the merits of his claims

and we are constrained to quash the appeal.

      The Official Note to Rule 341(a) provides that where a single order

resolves issues arising on more than one docket, separate notices of appeal

must be filed pertaining to each docket number. In Walker, the Pennsylvania

Supreme Court determined that the Official Note “provides a bright-line

mandatory instruction to practitioners to file separate notices of appeal.”

Walker, 185 A.3d at 967, 977. Failure to comply with Rule 341 must result

in quashal of the appeal. Id. at 977. Our Supreme Court issued the Walker

decision on June 1, 2018, and held that it shall apply prospectively to appeals

filed after that date. The instant appeal was filed on July 24, 2018, therefore,

Walker controls.



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       On August 23, 2018, this Court issued an order directing Appellant to

show cause as to why this appeal should not be quashed pursuant to Walker.

Appellant failed to timely respond to the order and it was discharged and

referred to the merits panel on September 11, 2018. On September 24, 2018,

Appellant filed a “Motion to Consolidate Appellant’s Two Appeals,” 2 which

averred that Appellant did not have the opportunity to read the Walker

decision until September 13, 2018, because it was not available on the prison

law library computers. In addition, Appellant asserted that the instant appeal

involves one defendant and the facts and issues raised as to both docket

numbers are identical. Appellant’s Motion to Consolidate, 9/24/2018, at 1.

Appellant also noted that he is not an attorney or familiar with the rules of

appellate procedure. Id. at 2.

       Walker mandates that, after June 1, 2018, failure to file separate

notices in accordance with the Official Note to Rule 341(a) “will result in

quashal of the appeal.” Walker, 185 A.3d at 977. Our Supreme Court did

not carve out any exceptions and we have no authority to do so. Moreover,

the plain text of the commentary to Rule 341, found in the version of the

appellate rules that was available to Appellant at the time he filed his notice

of appeal states, “[w]here, however, one or more orders resolves issues

arising on more than one docket or relating to more than one judgment,
____________________________________________


2 This motion appears to be an attempt to respond to our show cause order.
In it, Appellant requests that this Court consolidate his two appeals. It seems
Appellant misunderstood the procedure involved, but we will treat the motion
as a request for this Court not to quash his appeal.

                                           -4-
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separate notices of appeal must be filed.”        Pa.R.A.P. 341 cmt.    (from

Pennsylvania Rules of Court, Volume I – State, 2018 which includes

amendments    issued   up   to   December   15,   2017)   (emphasis   added).

Accordingly, we must quash the appeal.

     Appeal quashed. Motion to consolidate denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/2019




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