J-S63012-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA        :   IN THE SUPERIOR COURT OF
                                     :         PENNSYLVANIA
                   Appellee          :
                                     :
              v.                     :
                                     :
 DARRYL (DEWS) WEST                  :
                                     :
                   Appellant         :        No. 743 EDA 2019

         Appeal from the PCRA Order Entered February 5, 2019
          In the Court of Common Pleas of Philadelphia County
         Criminal Division at No(s): CP-51-CR-0001366-2012,
           CP-51-CR-0001772-2012, CP-51-CR-0014064-2011


 COMMONWEALTH OF PENNSYLVANIA        :   IN THE SUPERIOR COURT OF
                                     :         PENNSYLVANIA
                   Appellee          :
                                     :
              v.                     :
                                     :
 DARRYL DEWS                         :
                                     :
                   Appellant         :        No. 744 EDA 2019

         Appeal from the PCRA Order Entered February 5, 2019
          In the Court of Common Pleas of Philadelphia County
         Criminal Division at No(s): CP-51-CR-0001366-2012,
           CP-51-CR-0001772-2012, CP-51-CR-0014064-2011


 COMMONWEALTH OF PENNSYLVANIA        :   IN THE SUPERIOR COURT OF
                                     :         PENNSYLVANIA
                   Appellee          :
                                     :
              v.                     :
                                     :
 DARRYL DEWS                         :
                                     :
                   Appellant         :        No. 745 EDA 2019

         Appeal from the PCRA Order Entered February 5, 2019
J-S63012-19



             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0001366-2012,
              CP-51-CR-0001772-2012, CP-51-CR-0014064-2011


BEFORE:      GANTMAN, P.J.E., MURRAY, J., and STRASSBURGER, J.*

MEMORANDUM BY GANTMAN, P.J.E.:                      FILED JANUARY 16, 2020

        Appellant, Darryl (Dews) West, appeals pro se from the order entered

in the Philadelphia County Court of Common Pleas, which denied his first

petition filed under the Post Conviction Relief Act (“PCRA”).1 Based on this

Court’s decision in Commonwealth v. Creese, 216 A.3d 1142 (Pa.Super.

2019), we are constrained to quash the appeal.

        The relevant facts and procedural history of this case are as follows. On

September 24, 2013, a jury convicted Appellant at three docket numbers of

12 counts of robbery and three counts each of conspiracy and possessing

instruments of crime, in connection with Appellant’s robberies of three

barbershops.     The court sentenced Appellant on November 8, 2013, to an

aggregate 50 to 100 years’ imprisonment. This Court affirmed the judgment

of sentence on July 28, 2015, and our Supreme Court denied allowance of

appeal on February 14, 2018. See Commonwealth v. Dews, 125 A.3d 462

(Pa.Super. 2015), appeal denied, 645 Pa. 570, 181 A.3d 1080 (2018).


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S.A. §§ 9541-9546.



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J-S63012-19


        Appellant timely filed a pro se PCRA petition on May 10, 2018, and a pro

se supplemental PCRA petition on June 25, 2018.            The court appointed

counsel, who subsequently filed a motion to withdraw and Turner/Finley “no-

merit” letter.2 On December 14, 2018, the court issued notice of its intent to

dismiss the petition without a hearing per Pa.R.Crim.P. 907.           Appellant

responded pro se on January 17, 2019. On February 5, 2019, the court denied

PCRA relief and let counsel withdraw. Appellant filed a pro se notice of appeal

at each underlying docket, on February 28, 2019.3 Each notice of appeal listed

all three docket numbers.         Appellant attached to each notice of appeal a

“petition for permission to file [Rule] 1925(b) statement,” stating the issues

he intended to raise on appeal. On March 8, 2019, the court ordered Appellant

to file a concise statement per Pa.R.A.P. 1925(b). Appellant did not respond.4

        Appellant raises the following issues on appeal:

           WHETHER…TRIAL COUNSEL FAILED TO INVESTIGATE AND
           PRESENT MITIGATING EVIDENCE OF TRAUMATIC AND
           ABUSIVE CHILDHOOD OR CALL AVAILABLE CHARACTER
____________________________________________


2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

3   This Court consolidated the appeals.

4In its opinion, the PCRA court stated Appellant’s issues were waived because
Appellant did not respond to the Rule 1925(b) order.                Nevertheless,
Appellant’s “petition for permission to file [Rule] 1925(b) statement,”
constituted a “preemptive” Rule 1925(b) statement, which merely limited
Appellant to raising on appeal the issues included in that filing. See generally
Commonwealth v. Snyder, 870 A.2d 336 (Pa.Super. 2005) (explaining that
where appellant files Rule 1925(b) statement on his own accord he is limited
on appeal to raising those issues presented in voluntary concise statement).

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J-S63012-19


       WITNESS[ES] VIOLAT[ING] HIS RIGHT UNDER THE SIXTH
       AMENDMENT TO THE U.S. CONSTITUTION AND ART. 1.,
       SEC. 9 & 10 OF THE PENNSYLVANIA CONSTITUTION
       PURSUANT TO WILLIAMS V. TAYLOR, 529 U.S. 362 [, 120
       S.CT. 1495, 146 L.ED.2D 389] (2000) AND WIGGINS V.
       SMITH, 5[3]9 U.S. 510[, 123 S.CT. 2527, 156 L.ED.2D
       471] (2003)[?]

       WHETHER…TRIAL COUNSEL FAILED TO PRESERVE ON
       DIRECT    APPEAL  THE LEGALITY OF SENTENCING
       [APPELLANT] TO CONSECUTIVE TEN TO TWENTY [YEARS’
       INCARCERATION] FOR A SINGLE CRIMINAL EPISODE OF
       BROTHER BARBERSHOP VIOLAT[ING] HIS RIGHTS UNDER
       THE FIFTH AMENDMENT TO THE U.S. CONSTITUTION AND
       ART. 1, SEC. 9 OF THE PENNSYLVANIA CONSTITUTION
       PURSUANT TO COMMONWEALTH V. BRADLEY, 575 PA.
       141[, 834 A.2D 1127] (2003) AND COMMONWEALTH V.
       MCCLINTIC, [589 PA. 465,] 909 A.2D 1241 [(2006)?]

       WHETHER…TRIAL COUNSEL WAS INEFFECTIVE FOR
       FAILING TO [REQUEST] AN INSTRUCTION ON EYEWITNESS
       IDENTIFICATION TESTIMONY (1) TO TELL THE JURY IT
       COULD RECEIVE THE TESTIMONY WITH CAUTION AND (2)
       PREJUDICE [APPELLANT’S] DEFENSE THAT CREATED A
       CONCLUSIVE PRESUMPTION THAT THE EYEWITNESS’S
       CERTAINTY MADE HIS IDENTIFICATION UNASSAILABLE
       VIOLAT[ING]    [APPELLANT’S]     RIGHT    UNDER     THE
       FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION
       AND ART. 1, SECS 9 & 10 OF THE PENNSYLVANIA
       CONSTITUTION PURSUANT TO COMMONWEALTH V.
       KLOIBER, [378 PA. 412,] 106 A.2D 820 [(1954), CERT.
       DENIED, 348 U.S. 875, 75 S.CT. 112, 99 L.ED. 688 (1954)]
       AND SANDSTROM V. MONTANA, 442 U.S. 510[, 99 S.CT.
       2450, 61 L.ED.2D 39] (1979)[?]

       WHETHER THE JURY SELECTION PROCEDURE IMPLICATED
       DUE PROCESS, SIXTH AMENDMENT AND EQUAL
       PROTECTION PRINCIPLES WHEN APPELLANT [WAS NOT]
       PRESENT DURING THIS CRITICAL STAGE OF VOIR DIRE OF
       POTENTIAL JUROR #10 PRIOR TO [TRIAL] VIOLAT[ING] HIS
       RIGHTS TO [A] JURY TRIAL UNDER THE FIFTH AND
       FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION
       AND ART. 1, SECS 9 & 10 OF THE PENNSYLVANIA
       CONSTITUTION PURSUANT TO MCDONOUGH POWER

                                -4-
J-S63012-19


         EQUIP V. GREENWOOD, 464 U.S. 548[, 104 S.CT. 845,
         78 L.ED.2D 663] (1984)[?]

         WHETHER FAILURE OF THE COMMONWEALTH TO DISCLOSE
         UNDERSTANDING WITH WITNESS ABOUT TESTIFYING WAS
         A BRADY[ V. MARYLAND, 373 U.S. 83, 83 S.CT. 1194, 10
         L.ED.2D 215 (1963)] VIOLATION, WHICH TRIAL COUNSEL
         NEVER PRESERVED THIS CLAIM ON DIRECT APPEAL
         VIOLATED [APPELLANT’S] RIGHT UNDER THE SIXTH AND
         FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION
         AND ART. 1, SECS 9 & 10 OF THE PENNSYLVANIA
         CONSTITUTION PURSUANT TO COMMONWEALTH V.
         STRONG, 563 PA. 455[, 761 A.2D 1167 (2000)] AND
         NAPUE V. ILLINOIS, 360 U.S. 264[, 79 S.CT. 1173, 3
         L.ED.2D 1217] (1959)[?]

         WHETHER…THE       COMMONWEALTH[’S]    FAILURE     TO
         DISCLOSE PERSONNEL FILE AND OTHER INFORMATION
         ABOUT DET. ANTHONY JACKSON FOR BIAS AND
         PREJUDICE, WHICH THIS INFORMATION WAS CRITICAL TO
         [APPELLANT’S] DEFENSE VIOLATED HIS RIGHT UNDER THE
         FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION
         AND ART. 1, SECS 9 & 10 OF THE PENNSYLVANIA
         CONSTITUTION PUSUANT TO BRADY[, SUPRA] AND
         GIGLIO V. UNITED STATES, 405 U.S. 150[, 92 S.CT. 763,
         31 L.ED.2D 104] (1972)[?]

(Appellant’s Brief at 3-4).

      Preliminarily,   on     June   1,   2018,   our   Supreme   Court   held    in

Commonwealth v. Walker, 646 Pa. 456, 185 A.3d 969 (2018), that the

common practice of filing a single notice of appeal from an order involving

more than one docket will no longer be tolerated, because the practice violates

Pa.R.A.P. 341, which requires the filing of “separate appeals from an order

that resolves issues arising on more than one docket.”        Walker, supra at

469, 185 A.3d at 977.         The failure to file separate appeals under these

circumstances “requires the appellate court to quash the appeal.”                Id.

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J-S63012-19


Recently, in Creese, a panel of this Court interpreted 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.” Id. at 1144.

       Instantly, Appellant filed three pro se notices of appeal, one at each

underlying docket.       Appellant’s notices of appeal pre-date Creese, so he

arguably complied with Walker, which did not specify a “one docket number

only per notice of appeal” mandate. We also recognize that Appellant, who is

pro se, had no way to intuit the additional requirement Creese grafted onto

Walker. Still, we are bound by Creese, which expressly prohibits a notice of

appeal listing multiple docket numbers.          Accordingly, we must quash this

appeal.5

       Appeal quashed.

       Judge Murray joins this memorandum.

       Judge Strassburger files a dissenting statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/16/20


____________________________________________


5Moreover, we would have affirmed the denial of PCRA relief because each of
Appellant’s claims is waived or otherwise merits no relief.

                                           -6-
