Com. v. Brady, E.

• Court: Superior Court of Pennsylvania
• Decided: April 8, 2019
• Docket: 1718 EDA 2018
• Status: Unpublished

Opinion

J-S03012-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

EDWARD BRADY,

Appellant No. 1718 EDA 2018

Appeal from the Order Entered June 6, 2018 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0004148-2012

BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.

JUDGMENT ORDER BY BENDER, P.J.E.: FILED APRIL 08, 2019

Appellant, Edward Brady, appeals pro se from the trial court’s June 6,

2018 order. After careful review, we are compelled to deem that order non-

final and quash Appellant’s appeal.

We need not set forth the facts or procedural history of Appellant’s case

for purposes of disposing of his present appeal. We need only note that on

February 7, 2018, Appellant filed his third pro se petition under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. On April 30, 2018,

the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss

Appellant’s petition as being untimely filed. Appellant did not file a timely

response, and on May 25, 2018, the court issued an order that stated as

follows: J-S03012-19

AND NOW, this 25th day of May, 2018, after consideration of [Appellant’s] Third Post Conviction Relief Act Petition (hereinafter “PCRA Petition”), it is hereby ORDERED as follows:1 1 A 20[-]day notice, pursuant to Pa.R.Crim.P. 907, was forwarded to [Appellant] on April 30, 2018.

Pursuant to Pa. Rule of Criminal Procedure 907(4), [Appellant] is advised that he has thirty (30) days from the date of this Order to file an appeal to the Pennsylvania Superior Court. To do so, you must file a Notice of Appeal with the Clerk of Courts of Chester County, Pennsylvania. If you are indigent, you may request to file your appeal without the payment of costs (in forma pauperis). (Pa.R.Crim.P. 904)

Pursuant to Pa. Rule of Criminal Procedure 907(4), the Clerk of Courts of Chester County is directed to send a copy of this Order to [Appellant], certified mail, return receipt requested.

PCRA Court Order, 5/25/18, at 1 (single page).

Noticeably absent from this order is any ruling on Appellant’s petition.

We presume that this omission was an oversight, and that the court intended

to dismiss Appellant’s petition. Indeed, the docket entry for the May 25, 2018

order states “Order Dismissing PCRA Filed.” However, the fact that the order

does not actually rule on Appellant’s petition renders it non-final, as the order

did not “dispose[] of all claims and of all parties[.]” Pa.R.A.P. 341 (defining a

final order). Thus, the May 25, 2018 order is not appealable, and we lack

jurisdiction to consider Appellant’s appeal. See Commonwealth v. Mitchell,

72 A.3d 715, 717 (Pa. Super. 2013) (“In order for this Court to have

jurisdiction, an appeal must be from an appealable order.”) (citing

Commonwealth v. Brister, 16 A.3d 530, 533 (Pa. Super. 2011) (“[T]he

appealability of an order directly implicates the jurisdiction of the court asked

to review the order.”)). Consequently, we are constrained to quash

-2- J-S03012-19

Appellant’s appeal, without prejudice to his right to file a new appeal once the

PCRA court enters a final order ruling on his petition.

Appeal quashed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/8/19

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