Com. v. Brown, F.

• Court: Superior Court of Pennsylvania
• Decided: April 23, 2019
• Docket: 1158 MDA 2018
• Status: Unpublished

Opinion

J-S04018-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : FRANKIE LAMAR BROWN : : Appellant : No. 1158 MDA 2018

Appeal from the PCRA Order Entered June 22, 2018 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0002168-2012, CP-36-CR-0004421-2011, CP-36-CR-0004462-2012

BEFORE: SHOGAN, J., OTT, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.: FILED APRIL 23, 2019

Frankie Lamar Brown appeals, pro se, from the order entered June 22,

2018, in the Lancaster County Court of Common Pleas, dismissing his serial

petition for collateral relief filed pursuant to the Post Conviction Relief Act

(“PCRA”).1 Brown seeks relief from the judgment of sentence of an aggregate

term of 6½ to 15 years’ imprisonment, imposed on May 13, 2013, following

his negotiated guilty plea to person not to possess firearms, simple assault,

aggravated assault, conspiracy to riot, and riot, on three separate dockets.

On appeal, he asserts the PCRA court erred in dismissing his PCRA petition as

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 Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S.A. §§ 9541-9546. J-S04018-19

untimely. For the reasons below, we are constrained to quash this appeal and

deny Brown’s motion to correct docketing.

The parties are well acquainted with the facts and procedural history

underlying this appeal and we need not recite them herein. In summary, on

May 13, 2013, Brown entered a negotiated guilty plea to the aforementioned

charges. The trial court immediately sentenced him in accordance with the

terms of the plea deal. Brown did not file a direct appeal.

Brown filed a pro se PCRA petition on June 17, 2014. The PCRA court

subsequently appointed counsel, who petitioned to withdraw. The PCRA court

granted counsel’s request to withdraw and dismissed the PCRA petition on

June 30, 2017. Brown did not file an appeal.

On May 24, 2018, Brown filed a second, pro se PCRA petition. The PCRA

court did not issue notice of its intent to dismiss the petition pursuant to

Pennsylvania Rule of Criminal Procedure 907(1). On June 22, 2018, the PCRA

court dismissed the petition as untimely. This timely appeal listing all three

lower court docket numbers followed.2

On appeal, Brown contends the PCRA court erred in dismissing his

petition as untimely and attempts to invoke the limited mental health

exception to the PCRA’s timeliness requirement as enunciated by this Court in

2In response to the PCRA court’s order, Brown filed a timely concise statement of errors complained of on appeal. On August 29, 2018, the court filed an opinion.

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Commonwealth v. Monaco, 996 A.2d 1076 (Pa. Super. 2010), appeal

denied, 20 A.3d 1210 (Pa. 2011). “In reviewing the denial of PCRA relief, we

examine whether the PCRA court’s determination is supported by the record

and free of legal error.” Commonwealth v. Mitchell, 141 A.3d 1277, 1283–

1284 (Pa. 2016) (internal punctuation and citation omitted).

However, before we may consider the timeliness of the PCRA petition,

we must first determine whether Brown properly filed the notice of appeal.3

As noted supra, Brown’s single notice of appeal listed all three docket

numbers. See Notice of Appeal, 7/10/2018. The official note to Pennsylvania

Rule of Appellate Procedure 341 states that separate notices of appeal must

be filed when “one or more orders resolves issues arising on more than one

docket or relating to more than one judgment.”4 Despite this, the courts of

this Commonwealth, until recently, have allowed appeals to proceed even if

the appellant listed multiple dockets on one notice of appeal. See In Interest

of P.S., 158 A.3d 643 (Pa. Super. 2017), appeal denied, 174 A.3d 1029 (Pa.

2017).

3 On July 31, 2018, this Court issued Brown a rule to show cause why the appeal should not be quashed in light of Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). In response, Brown filed a motion to correct docketing, and we discharged the rule, so the merits panel could decide the issue.

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

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However, on June 1, 2018, in Commonwealth v. Walker, 185 A.3d

969 (Pa. 2018), the Pennsylvania Supreme Court held that “where a single

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

appeal must be filed for each case.” Id. at 971. 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.

Recognizing, however, that “decades” of prior case law, while disapproving of

the practice, seldom resulted in quashal of the appeal, the Walker Court

declined to quash the appeal before it. Nevertheless, the Court held:

While we do not quash the present appeal in this instance, in future cases Rule 341(a) will, in accordance with its Official Note, require that when a single order resolves issues arising on more than one lower court docket, separate notices of appeal must be filed. The failure to do so will result in quashal of the appeal.

Id. at 977 (footnote omitted).

In the case before us, Brown filed a single notice of appeal, listing all

three trial court docket numbers at issue, on July 10, 2018. Because he filed

this notice after the decision in Walker, Brown was required to file separate

notices of appeal for each number. Consequently, pursuant to the mandate

in Walker, supra, we are constrained to quash this appeal.5

5We note that, in response to the rule to show cause, Brown filed a motion to correct docketing, asserting that we should not quash the present appeal because he is appealing pro se and is ignorant of the law and requesting

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Appeal quashed. Motion to correct docketing denied. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/23/2019

permission to file three late notices of appeal. However, as this Court explained in Commonwealth v. Rivera, 685 A.2d 1011 (Pa. Super. 1996):

While this Court is willing to liberally construe materials filed by a pro se litigant, we note that appellant is not entitled to any particular advantage because [he] lacks legal training. As our Supreme Court has explained, “any layperson choosing to represent [himself] in a legal proceeding must, to some reasonable extent, assume the risk that [his] lack of expertise and legal training will prove [his] undoing.”

Id. at 1013 (citation omitted). Accordingly, the mandate in Walker binds us.

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