J-A15045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    PATRICK HORAN                              :
                                               :
                      Appellant                :   No. 3504 EDA 2018

            Appeal from the PCRA Order Entered October 31, 2018
    In the Court of Common Pleas of Northampton County Criminal Division
                      at No(s): CP-48-CR-0002572-2006,
             CP-48-CR-0002868-2006, CP-48-CR-0002881-2006


BEFORE:      BENDER, P.J.E., GANTMAN, P.J.E., and COLINS*, J.

JUDGMENT ORDER BY COLINS, J.:                              FILED MAY 31, 2019

       Appellant, Patrick Horan, pro se, appeals from the order entered

October 31, 2018, that dismissed his petition filed under the Post Conviction

Relief Act (“PCRA”)1 without a hearing. We quash this appeal.

       This Court previously summarized underlying factual and procedural

history of this action in Commonwealth v. Horan, No. 1790 EDA 2010,

unpublished memorandum at 1-5 (filed March 24, 2011) (reinstating

Appellant’s direct appeal rights), and Commonwealth v. Horan, No. 979

EDA 2011, unpublished memorandum at 1-4 (Pa. Super. filed March 15,

2012) (affirming judgment of sentence).            We therefore need not restate

____________________________________________


1   42 Pa.C.S. §§ 9541–9546.




*    Retired Senior Judge assigned to the Superior Court.
J-A15045-19


them herein. On August 19, 2014, Appellant filed a PCRA petition, which the

PCRA court granted in part. On October 2, 2014, the trial court resentenced

Appellant. In 2018, Appellant pro se filed the instant PCRA petition arguing

that his rights pursuant to the Fourth Amendment of the United States

Constitution and Article I, Section 8 of the Pennsylvania Constitution were

violated when the Commonwealth tracked his cellular telephone’s location

without a warrant.        PCRA Petition, 8/15/2018, at 3-4.   The PCRA court

dismissed the petition without a hearing.2 On November 25, 2018, Appellant

filed one notice of appeal from three separate dockets.

       The Official Note to Rule 341 of the Pennsylvania Rules of
       Appellate Procedure provides in relevant part:

          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).
____________________________________________


2 PCRA court did not appoint counsel to represent Appellant. Although the
current PCRA petition was Appellant’s first since his 2014 resentencing and
Appellant is currently serving sentences at all three docket numbers,
Appellant’s instant PCRA petition only challenged his original conviction and
not his new sentence. Accordingly, the resentencing does not “reset the
clock,” his present PCRA petition is not considered his “first” petition for his
conviction, and he consequently is not entitled to counsel.                 See
Commonwealth v. McKeever, 947 A.2d 782, 785-86 (Pa. Super. 2008).
Had Appellant been entitled to counsel, we would not have quashed,
because the procedural error leading to quashal may not have occurred had
the appeal been filed by an attorney instead of a pro se appellant. See
Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (stating that we
presume counsel acts effectively).



                                           -2-
J-A15045-19


     Pa.R.A.P. 341, Official Note.

     Until recently, it was common practice for courts of this
     Commonwealth to allow appeals to proceed, even if they failed
     to comply with Pa.R.A.P. 341.

        While our Supreme Court recognized that the practice of
        appealing multiple orders in a single appeal is discouraged
        under Pa.R.A.P. 512 (joint appeals), it previously
        determined that “appellate courts have not generally
        quashed [such] appeals, provided that the issues involved
        are nearly identical, no objection to the appeal has been
        raised, and the period for appeal has expired.” K.H. v.
        J.R., 826 A.2d 863, 870 (Pa. 2003) (citation omitted).

     In the Interest of: P.S., 158 A.3d 643, 648 (Pa. Super. 2017)
     (footnote omitted).

     However, on June 1, 2018, our Supreme Court in
     [Commonwealth v.] Walker[, 185 A.3d 969 (Pa. 2018),] held
     that the practice violated Pennsylvania Rule of Appellate
     Procedure 341, and the failure to file separate notices of appeal
     for separate dockets must result in quashal of the appeal. See
     Walker, 185 A.3d at 977. The Court stated unequivocally:
     “The Official Note to Rule 341 provides a bright-line mandatory
     instruction to practitioners to file separate notices of appeal. . . .
     The failure to do so requires the appellate court to quash the
     appeal.” Id. at 976-77.

     Because the mandate in the Official Note was contrary to
     “decades of case law from this Court and the intermediate
     appellate courts,” the Walker Court announced that its holding
     would apply prospectively only.    Id. at 977.   Accordingly,
     Walker applies to appeals filed after June 1, 2018, the date
     Walker was filed. Id.

                                *    *    *
        2  We recognize the harsh - perhaps draconian -
        consequence of quashing any appeal . . . However, our
        role as an intermediate appellate court is clear. “It is not
        the prerogative of an intermediate appellate court to
        enunciate new precepts of law or to expand existing legal
        doctrines. Such is a province reserved to the Supreme
        Court." Moses v. T.N.T. Red Star Exp., 725 A.2d 792,
        801 (Pa. Super. 1999). It is well-settled that “the Superior
        Court is an error correcting court and we are obliged to

                                     -3-
J-A15045-19


        apply the decisional law as determined by the Supreme
        Court of Pennsylvania.” Commonwealth v. Montini, 712
        A.2d 761, 769 (Pa. Super. 1998).

In re M.P., 204 A.3d 976, 980-81 & n.2 (Pa. Super. 2019).

     Appellant’s notice of appeal was filed November 25, 2018 – after the

deadline of Commonwealth v. Walker (June 1, 2018).          Consequently,

Walker compels quashal of the current appeal.

     Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/31/19




                                  -4-
