J-S01007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DARIAN TOULIQUE SIMMONS-                   :
    WALTON                                     :
                                               :   No. 1440 MDA 2018
                       Appellant               :

          Appeal from the Judgment of Sentence Entered July 24, 2018
             In the Court of Common Pleas of Lackawanna County
             Criminal Division at No(s): CP-35-CR-0001114-2017,
                                         CP-35-CR-0001126-2017


BEFORE:      PANELLA, P.J., MURRAY, J., and PELLEGRINI, J.

MEMORANDUM BY PANELLA, P.J.:                              FILED JUNE 28, 2019

        Darian Toulique Simmons-Walton appeals from the judgment of

sentence entered on July 24, 2018 in the Lackawanna County Court of

Common Pleas. Specifically, Appellant challenges the discretionary aspects of

his sentence. After careful review, we quash this appeal.

        In light of our disposition, a complete recitation of the factual and

procedural history is unnecessary. Relevant for our purposes, on March 27,

2018 Appellant pled guilty under CP-35-CR-0001114-2017 to one count each

of possession with intent to deliver (PWID), aggravated assault, and resisting

arrest. At the same time, Appellant pled guilty under CP-35-CR-0001126-2017

to default in required appearance.

____________________________________________


   Retired Senior Judge assigned to the Superior Court.
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      On July 24, 2018, under CP-35-CR-0001114-2017, Appellant was

sentenced to twenty one to forty eight months’ incarceration followed by two

years of probation for PWID, sixty to one hundred and twenty months’

incarceration followed by two years of probation for aggravated assault, and

two years of probation for resisting arrest. Additionally, under CP-35-CR-

0001126-2017, he was sentenced to two years of probation for default in

required appearance. All sentences were to run consecutively for an aggregate

sentence of eighty-one to one hundred and sixty eight months’ incarceration

followed by eight years of probation.

      Before we reach the issues presented by Appellant on appeal, we must

first address the fact that Appellant filed a single notice of appeal raising issues

that relate to two docket numbers.

      The Pennsylvania Supreme Court has held that “where a single order

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

must be filed for each case.” Commonwealth v. Walker, 185 A.3d 969, 971

(Pa. 2018). The Court explained, “[t]he Official Note to Rule 341 provides a

bright-line mandatory instruction to practitioners to file separate notices of

appeal” and “[t]he failure to do so requires the appellate court to quash the

appeal.” Id., at 976-977; See also Pa.R.A.P. 341, Official Note.

      However, the Court in Walker declined to apply the rule to the case

before it, because to do so would run “contrary to decades of case law from

[the Pennsylvania Supreme Court] and the intermediate appellate courts that,

while disapproving of the practice of failing to file multiple appeals, seldom

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quashed appeals as a result.” Id. Thus, the Supreme Court instructed that in

all future cases, a failure to file a notice of appeal for each lower court docket

will result in quashal of the appeal. See id., at 977.

      On October 19, 2018, this Court issued an order directing Appellant to

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

Appellant filed a counseled response. In his response, Appellant argued the

present case is distinguishable from Walker for the following reasons:

      a. The present matter involves one defendant and not multiple
      parties;

      b. In the present matter, the cases were consolidated for the
      purpose of both litigation, plea and sentencing;

      c. The evidence under evaluation, the sentencing court’s reasons
      for the sentences imposed, along with the sentences imposed, do
      not require individualized arguments;

      d. The Appellee has raised no objection to the improper
      procedure;

      e. The Appellee would suffer no prejudice if this Court addressed
      this appeal as a result;

      f. The period of time in which to file an appeal has run, such that
      Appellant would be denied timely appellate review;

      g. The mandates of judicial economy would be served if this Court
      considers the present appeal;

      h. The Walker decision involved a single appeal by the
      Commonwealth of a suppression order involving several
      defendants filed under separate dockets; and

      i. The Walker decision is contrary decades of case law from our
      appellate courts which seldom quashed appeals where multiple
      appeals were not filed.


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Appellant’s Response to Rule to Shower Cause, 10/23/2018, at 2. By order

entered November 9, 2018, this Court discharged its rule to show cause and

referred the matter to the merits panel.

       We are unable to agree with any of Appellant’s proffered grounds to

forgo quashal. The Supreme Court did not carve out any exceptions to the

holding in Walker after June 1, 2018, and we have no authority to do so.

Therefore, consolidated treatment of separately docketed cases does not

constitute a reason to distinguish Walker. Further, Appellant’s response

seems to attempt to reconcile the present circumstances with case law prior

to Walker, which is not controlling1. Finally, this Court has recently explicitly

rejected Appellant’s arguments. See Commonwealth v. Nichols, ___ A.3d

___, 2019 WL 1783645, *1 (Pa. Super., filed April 24, 2019) (rejecting

arguments that quashal was not required because (1) each docket had

identical issues, (2) Commonwealth did not object, (3) quashal would deny

appellate review, and (4) quashal was contrary to long-standing case law).



____________________________________________


1 Appellant’s response seems to make an argument for an exception under
the holding of General Electric Credit Corporation v. Aetna Casualty and
Surety Company, 263 A.2d 448 (Pa. 1970) (holding quashal unnecessary
where a single notice of appeal applies to multiple orders when (1) the issues
raised are “substantially identical,” (2) the appellee raised no objection, and
(3) the time to file an appeal has expired). However, the holding in Walker
was explicitly made to be prospective. Accordingly, Appellant’s notice of
appeal, filed after June 1, 2018, would be controlled by Walker.




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       Here, it is undisputed that Appellant filed a single notice of appeal, listing

both trial court docket numbers at issue. Because he filed this notice after

June 1, 2018, we are constrained to quash this appeal.2

       Appeal quashed. Jurisdiction relinquished.

       Judge Murray join the memorandum.

       Judge Pellegrini notes dissent.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 06/28/2019




____________________________________________


2 Although we are constrained to quash this appeal, we note Appellant’s issues
are nevertheless without merit. Appellant’s first issue is waived as he failed to
preserve it either during sentencing or in his post-sentence motion. See
Commonwealth v. Feucht, 955 A.2d 377, 383 (Pa. Super. 2008) (“To
preserve issues concerning the discretionary aspects of sentencing, a
defendant must raise them during sentencing or in a timely post-sentence
motion”). Further, Appellant’s second issue is waived as he fails to address
how the issue presents a substantial question in his Rule 2119 statement. See
Commonwealth v. Diehl, 140 A.3d 34, 45 (Pa. Super. 2016) (“[W]e cannot
look beyond the statement of questions presented and the prefatory 2119(f)
statement to determine whether a substantial question exists”).

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