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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
MICHAEL RICHARD MUSSER
Appellant No. 1012 MDA 2018
Appeal from the Judgment of Sentence imposed May 14, 2018
In the Court of Common Pleas of Lancaster County
Criminal Division at Nos: CP-36-CR-0003318-2006,
CP-36-CR-0003862-2015
BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED MARCH 22, 2019
Appellant, Michael Richard Musser, appeals from the May 14, 2018
judgments of sentence imposed on two separate dockets in the Court of
Common Pleas of Lancaster County following revocation of his probation.
Appellant claims his aggregate sentence is manifestly excessive. Because
Appellant filed a single notice of appeal rather than separate notices of appeal
in violation of Pa.R.A.P. 341, we quash the appeal.
The trial court provided the following background:
On January 29, 2018, [Appellant] was charged [with] an ungraded
misdemeanor offense of [] possession of a controlled substance.
At that time, [Appellant] was serving probation sentences on
Docket Number 3318-2006 for one count of criminal trespass, and
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* Former Justice specially assigned to the Superior Court.
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on Docket Number 3862-2015 for one of forgery, ten counts of
theft by unlawful taking, and one count of access device fraud.
On February 23, 2018, [Appellant] appeared before the court for
a probation violation hearing. Due to [Appellant’s] new charge,
and two additional technical violations, [Appellant] was found to
be in violation of his probation on each docket and his probation
was revoked. Sentence was deferred and a pre-sentence
investigation report was ordered.
On May 14, 2018, a sentencing hearing was held before this court
on [Appellant’s] violations. On Docket Number 3318-2006,
[Appellant] was sentenced to a period of three to six years’
incarceration in a state correctional institution. On Docket
Number[] 3862-2015, [Appellant] was sentenced as follows:
Count 1, two and one-half to five years’ incarceration; Counts 27-
30, 32, 35-37, 42 and 48, one and one-half to three years’
incarceration; and Count 51, two and one-half to five years’
incarceration, in a state correctional institutional The sentences
were made to run concurrent with each other, and concurrent with
Docket Number 3318-2006. Thus, [Appellant] received an
aggregate sentence of three to six years’ incarceration in a state
correctional institution.
Trial Court Opinion, 8/23/18, at 1-2 (footnotes, parentheticals, and some
capitalization omitted).
On May 18, 2018, Appellant filed a timely post-sentence motion. On
June 13, 2018, he filed a single notice of appeal to this Court listing both
docket numbers. Before we can consider the merits, if any, of Appellant’s
excessive sentence claim, we must determine whether this appeal is properly
before us.
In Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), our Supreme
Court recognized that 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
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976-77.1 However, the Court determined that the failure to file separate
notices of appeal would result in quashal only for appeals filed after the date
of that decision, i.e., June 1, 2018. The instant appeal was filed on June 13,
2018, almost two weeks after the Supreme Court’s decision in Walker.
Therefore, Walker governs.
On August 27, 2018, counsel for Appellant and counsel for the
Commonwealth filed a Stipulation of Counsel to Consolidate Appeals. In that
stipulation, counsel acknowledged that Appellant filed a “joint notice of appeal
. . . from the combined probation violation sentences.” Stipulation, 8/27/18,
at ¶ 5 (capitalization omitted). Counsel stipulated “that, although the above-
captioned appeal should originally have been filed as two separate appeals,
one for each information number, the appeals should properly be consolidated
and argued together in all particulars as if but a single appeal.” Id. at ¶ 6
(capitalization omitted). By order entered August 29, 2018, we denied the
stipulation to consolidate, noting there was only one appeal filed and,
therefore, nothing to consolidate.
On September 25, 2018, this Court issued an order directing Appellant
to show cause why the appeal should not be quashed pursuant to Walker.
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1 See Pa.R.A.P. 341 (Note: “Where, however, one or more orders resolves
issues arising on more than one docket or relating to more than one judgment,
separate notices of appeal 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).”)
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Appellant did not file a response. By order entered October 29, 2018, this
Court entered an order discharging the rule to show case, explaining that
Appellant did not file a response to the rule to show cause and that the issue
would be referred to this merits panel.
In his brief filed with this Court, Appellant acknowledged Walker, its
prospective requirement for separate notices of appeal from orders resolving
issues arising on more than one lower court docket, and its direction that the
failure to file separate notices of appeal “will result in quashal of the appeal.”
Appellant’s Brief at 15, quoting Walker, 185 A.3d at 977. Appellant even
acknowledged that “[a] literal application of the [Note to Rule 341] would
appear to apply to [] Appellant’s appeal.” Id. Nevertheless, Appellant
suggests that application of the rule “makes little sense and would result in
undue hardship for a criminal defendant who, if not proceeding in forma
pauperis, would be required to pay multiple filings fees for separate appeals.”
Appellant’s Brief at 15-16.
Appellant would have us create an exception to Walker despite our
Supreme Court’s mandate that failure to file separate notices in accordance
with the Official Note to Rule 341(a) “will result in quashal of the appeal.”
Walker, 185 A.3d at 977 (emphasis added). The Supreme Court did not
carve out any exceptions and we have no authority to do so. Therefore, we
must quash the appeal.
Appeal quashed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/2019
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