Opinion
No. 3381 EDA 2018
12-09-2020
COMMONWEALTH of Pennsylvania, Appellee v. Byron Lee RORIE-GARDNER, Appellant
Byron Lee Rorie-Gardner (Appellant) appeals from his judgments of sentence for two convictions of criminal trespass entered on October 26, 2018. After review, we are compelled to quash the appeal pursuant to Commonwealth v. Walker , 185 A.3d 969 (Pa. 2018), and Pa.R.A.P. 341(a).
Briefly, the facts underlying this appeal are as follows. The Commonwealth charged Appellant with two summary counts of criminal trespass in two separate criminal informations. The charge at CP-15-CR-0002652-2018 (2652-18) was based upon Appellant's presence on July 24, 2018, at a mobile home park owned by UMH Properties, Inc. The charge at CP-15-CR-0002653-2018 (2653-18) was based upon Appellant's presence at the same park on April 16, 2018.
The cases proceeded to a summary trial on October 23, 2018. At the start of the trial, the Commonwealth moved to consolidate the two matters for trial, and the oral motion was granted without objection. After taking the matters under advisement at the conclusion of the trial, the trial court issued a guilty verdict the following day. On October 26, 2018, the trial court sentenced Appellant to 2 to 90 days of incarceration at each docket, to run concurrently with each other. The court credited Appellant with time served and released him on immediate parole.
Appellant filed timely a notice of appeal from his judgment of sentence. After Appellant complied with the trial court's Pa.R.A.P. 1925(b) order, the trial court issued its Rule 1925(a) opinion.
Appellant presents three issues for our consideration, all of which relate to his argument that these matters should have been pursued civilly under the Landlord and Tenant Act, 68 P.S. §§ 250.101 - 250.602, and the Manufactured Homes Community Rights Act, 68 P.S. §§ 398.1 - 398.16.1, instead of under the Crimes Code. See Appellant's Brief at 4-5.
Before we may address the merits of Appellant's issues, we must first determine whether Appellant filed separate notices of appeal at each docket in conformity with Walker , or advanced reasons excusing his failure to do so. In Walker , our Supreme Court adopted the bright-line rule in the Official Note to Rule 341 mandating that practitioners file separate notices of appeal in all future cases "when a single order resolves issues arising on more than one lower court docket." 185 A.3d at 470. Failure to comply "will result in quashal of the appeal." Id.
On January 3, 2019, this Court issued a per curiam order directing Appellant to show cause why the appeal should not be quashed in light of Pa.R.A.P. 341, as interpreted in Walker . Appellant timely filed a response, and this Court discharged the rule to show cause and deferred the issue to the merits panel for disposition.
In his response to the rule to show cause, Appellant set forth the following reasons why we should not quash his appeal. First, Appellant pointed to the trial court's consolidation of the two cases. Response to Rule to Show Cause, 1/11/2019, at 1. Next, he argues that two appeals would "merely double the paperwork" because "the same record," "the same opinion," and "the same sentencing will be filed." Id. at 4. He asserts that this Court likely would have consolidated the two cases on appeal because it involves one record and identical charges and legal issues for both cases. Id. He contends Walker should not apply to his case because his case involves one defendant, whereas Walker involved four cases with four defendants. Id. Appellant concludes by noting that the Commonwealth has not suffered prejudice and does not object to the cases proceeding as one appeal. Id. at 5.
Our review of the certified record reveals that while there was one trial and other intermingled filings, there is not one record; each case bears its own docket number and docket. Each docket contains a separate sentencing sheet with the single respective docket number at the top. The certified record contains only one notice of appeal bearing both docket numbers. The notice of appeal appears in the certified record for 2652-18, but not 2653-18. Appellant's certificate of service for the notice of appeal references his sending of copies of "the [n]otice of [a]ppeal" to the people required by Pa.R.A.P. 906. Certificate of Service, 9/18/2019, at 1. His response to the rule to show cause gives no indication that he filed separate notices of appeal. Therefore, it appears that Appellant improperly filed one notice of appeal from two judgments of sentence on two separate dockets in violation of Walker . Cf. Commonwealth v. Johnson , 236 A.3d 1141 (Pa. Super. 2020) ( en banc ) (holding that inclusion of multiple docket numbers on separately filed notices of appeal was not grounds for quashal under Walker ) (emphasis added).
For example, the guilty verdict lists both docket numbers, but was docketed only at 2652-18.
None of the reasons advanced by Appellant in his response to the rule to show cause excuses his failure to comply with Walker . Due to the broad language used by our Supreme Court in Walker , this Court has not limited the application of Walker to cases involving multiple defendants. See Johnson , 236 A.3d at 1146 ("Notably, Walker did not specifically address the situation in this case, where one defendant appeals from one judgment of sentence, entered following one trial on multiple criminal dockets. In this circumstance, the problems identified in ... Walker involving multiple defendants do not exist. Nonetheless, where a single defendant challenges his sentence relating to ‘more than one docket,’ Walker requires that defendant to file separate notices of appeal.").
Additionally, although 2652-18 and 2653-18 were consolidated for trial purposes, each case maintained a separate docket, requiring the filing of separate notices of appeal at each docket. See C.T.E. v. D.S.E. , 216 A.3d 296, 299 (Pa. Super. 2019) (quashing notice of appeal where appellant filed a single notice of appeal from two docket numbers, despite their consolidation in the lower court). Furthermore, our Supreme Court made clear in Walker that consolidation of cases for appeal is a matter for the Superior Court to decide, not an appellant on the appellant's own initiative. Walker , 185 A.3d at 976 ; see also Pa.R.A.P. 513 ("Where there is more than one appeal from the same order, or where the same question is involved in two or more appeals in different cases, the appellate court may, in its discretion , order them to be argued together in all particulars as if but a single appeal. Appeals may be consolidated by stipulation of the parties to the several appeals.") (emphasis added).
We note that an issue regarding the application of Walker to cases consolidated in the trial court is pending before our Supreme Court. See Always Busy Consulting, LLC v. Babford & Company, Inc. , 235 A.3d 271 (Pa. 2020) (considering whether this Court erred in quashing appeal pursuant to Walker where "[p]etitioner failed to file a notice of appeal at a separate docket number in a consolidated case, when [p]etitioner filed separate notices of appeal at the consolidated docket number, as directed and required by the trial court").
Accordingly, we are constrained to find Appellant's failure to file a separate notice of appeal at each of the two docket numbers violates Walker and Rule 341, and is fatal to this appeal.
Appeal quashed.
Judge Murray joins the memorandum.
Judge Pellegrini files a dissenting memorandum.
DISSENTING MEMORANDUM BY PELLEGRINI, J.:
Because I would hold that our Supreme Court's decision in Commonwealth v. Walker , 185 A.3d 969 (2018), does not require the appeal to be quashed under the facts of this case, I respectfully dissent.
Appellant was charged with summary trespass offenses at docket numbers 2652-18 and 2653-18. By agreement of the parties, the cases were consolidated so that they could be disposed of at a single bench trial. On October 24, 2018, the trial court completed one verdict form reflecting a finding of guilt as to one count at each of the two docket numbers. As noted by the majority, the verdict form was only entered at docket number 2652-18. The sentence on both counts was announced in open court on October 26, 2018.
Significantly, on that date, the trial court repeatedly implied that Appellant only had to file one appeal in order to obtain review as to both trespass counts. The trial court spoke in the singular when giving "the sentence of the court" and when asking Appellant, "[D]o you understand the sentence?" Transcript, 10/26/2018, at p. 9. Appellant was told he had the right to appeal "the sentence" within 30 days. Id . at p. 11. The trial court also clarified that it was bound to find Appellant guilty "under the facts of this case[.]" Id . at p. 10. Appellant then filed one notice of appeal at docket number 2652-18, captioning the notice with the two subject docket numbers.
The trial court's statements, in combination with the procedural posture, would reasonably give Appellant the impression that his cases had been totally merged into a single matter, permitting him to appeal with one timely notice. To the extent that separate notices were required, Appellant's mistake would have been at least partly caused by the trial court's misleading, ambiguous statements. In factually analogous cases, this Court has declined to quash an appeal for lack of compliance with Walker and Pa.R.A.P. 341, instead attributing the defective notice to a breakdown in court operations. See e.g., Commonwealth v. Stansbury , 219 A.3d 157, 160 (Pa. Super. 2019).
The majority suggests that Appellant should have known his two cases had not totally merged for appellate purposes because two separate sentencing sheets were completed at the October 26 hearing and entered at their respective docket numbers, which remained intact after Appellant's notice of appeal was filed. The majority also refers to the creation of two certified records and the parallel tracks of the two cases in court docketing systems.
I find the majority's grounds for applying Walker to be unpersuasive for several reasons. First, the administrative handling of the cases under two docket numbers did not explicitly correct or contradict the trial court's misleading statements indicating that Appellant only had one case with one sentence, requiring one notice of appeal. Consistent with there being a total merger of the two cases, no verdict form was ever entered at docket number 2653-18.
Second, Appellant's appealable "order" was the trial court's pronouncement of "the sentence" in open court and not the sentencing sheets that would later be entered into the dockets. See Pa.R.Crim.P 720(D) ("The imposition of sentence immediately following a determination of guilt at the conclusion of the trial de novo shall constitute a final order for purposes of appeal." ); see also Commonwealth v. Green , 862 A.2d 613, 621 (Pa. Super. 2004) ("The date of imposition of the sentence is the date the sentencing court pronounces the sentence."). The entry of separate sentencing sheets at two docket numbers would not have logically signaled to Appellant that he had to appeal from both of those documents because the trial court had already instructed that "in this case" he had to appeal from a single pronouncement of "the sentence" in open court.
Finally, not only was the verdict slip not entered at docket number 2653-18, the creation of different records and the continued use of a court file at that number took place after Appellant's jurisdictional clock had already begun to run on October 26, 2018. See Pa.R.Crim.P 720(D). Assuming the time for appeal indeed began running for two separate docket numbers, Appellant should not be held to a strict 30-day deadline for filing two notices when that period began with the trial court misadvising him that one notice was enough.
Accordingly, I respectfully dissent.