Com. v. Volz, J.

• Court: Superior Court of Pennsylvania
• Decided: February 3, 2020
• Docket: 695 EDA 2019
• Status: Unpublished

Opinion

J-S61043-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN VOLZ, : : Appellant : No. 695 EDA 2019

Appeal from the PCRA Order Entered February 11, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0902141-1996, CP-51-CR-0902151-1996, CP-51-CR-0902161-1996

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN VOLZ, : : Appellant : No. 696 EDA 2019

Appeal from the PCRA Order Entered February 11, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0902141-1996, CP-51-CR-0902151-1996, CP-51-CR-0902161-1996

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN VOLZ, : : Appellant : No. 697 EDA 2019

Appeal from the PCRA Order Entered February 11, 2019 J-S61043-19

In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0902141-1996, CP-51-CR-0902151-1996, CP-51-CR-0902161-1996

BEFORE: BOWES, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.: FILED FEBRUARY 3, 2020

John Volz appeals pro se from the order that dismissed without a hearing

his serial petition filed pursuant to the Post Conviction Relief Act (“PCRA”).

We quash this appeal.

Given our disposition, we need not undergo a full recitation of the history

of this case. Briefly, Appellant was convicted of various crimes at three docket

numbers, his judgment of sentence of an aggregate term of eighty-seven to

174 years of incarceration became final in 2004, and Appellant’s first three

PCRA petitions resulted in no relief. In 2018, Appellant filed the pro se PCRA

petition at issue in these appeals listing each of the three docket numbers.

After issuing notice of its intent to dismiss Appellant’s petition as untimely

without a hearing pursuant to Pa.R.Crim.P. 907, the PCRA court entered an

order captioned at all three docket numbers denying Appellant’s petition, as

well as individually-captioned denial orders filed at each docket. Thereafter,

Appellant filed a single notice of appeal listing all three docket numbers.

This Court issued a rule to show cause why the appeal should not be

quashed pursuant Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018)

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* Former Justice specially assigned to the Superior Court.

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(holding that an appeal must be quashed if an appellant fails to file separate

notices of appeal at each docket number implicated by an order resolving

issues that involve more than one trial court docket). See also

Commonwealth v. Creese, 216 A.3d 1142, 1144 (Pa.Super. 2019)

(concluding that Walker mandates that “a notice of appeal may contain only

one docket number”). Upon receiving a response from Appellant in which he

attempted to distinguish Walker, this Court discharged the rule and referred

the issue to this merits panel.

Our review of the record leads us to conclude that this appeal must be

quashed, not due to a Walker violation, but because Appellant has not

appealed from a final, appealable order. With one exception not applicable

here, “no order of a court shall be appealable until it has been entered upon

the appropriate docket in the lower court.” Pa.R.A.P. 301(a)(1). An order is

properly entered upon the docket by indication thereon of “(a) the date of

receipt in the clerk’s office of the order or court notice; (b) the date appearing

on the order or court notice; and (c) the date of service of the order or court

notice.” Pa.R.Crim.P. 114(C)(2). The thirty-day time period for appealing

from a criminal order other than a judgment of sentence begins to run on the

day that the order is served on the parties by the clerk of courts. See

Pa.R.A.P. 108(a)(1), (d).

The PCRA court’s February 11, 2019 orders in the instant case have not

been properly entered on the docket. The entry for each order contains no

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indication that it was served as required by Pa.R.Crim.P. 907(4),1 let alone

notation of the date upon which such service was made in accordance with

the mandates of Pa.R.Crim.P. 114(C)(2).

Accordingly, we quash this appeal as premature. After the clerk of

courts serves the order dismissing Appellant’s petition in accordance with

Pa.R.Crim.P. 907(4) and notes such service on the docket as required by Rule

114(C), Appellant will have thirty days from the date of service to timely file

separate notices of appeal at each docket implicated by the order.

Appeal quashed.

Judge Olson joins the memorandum.

President Judge Emeritus Stevens files a dissenting memorandum.

1 The Rule provides:

When the petition is dismissed without a hearing, the judge promptly shall issue an order to that effect and shall advise the defendant by certified mail, return receipt requested, of the right to appeal from the final order disposing of the petition and of the time limits within which the appeal must be filed. The order shall be filed and served as provided in Rule 114.

Pa.R.Crim.P. 907(4). We note that the order at issue in this appeal further fails to comply with Pa.R.Crim.P. 907(4), in that it includes no information about the right to appeal or time limits for doing so.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/3/20

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