J-S10043-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
IRVIN GOULBOURNE :
:
Appellant : No. 2754 EDA 2018
Appeal from the PCRA Order Entered September 21, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0700541-2002,
CP-51-CR-1203221-2002
BEFORE: GANTMAN, P.J.E., STABILE, J., and COLINS*, J.
JUDGMENT ORDER BY GANTMAN, P.J.E.: FILED APRIL 16, 2019
Appellant, Irvin Goulbourne, appeals from the order entered in the
Philadelphia County Court of Common Pleas, which dismissed his counseled
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), at 42
Pa.C.S.A. §§ 9541-9546. Based on our Supreme Court’s decision in
Commonwealth v. Walker, ___ Pa. ___, 185 A.3d 969 (2018), we must
quash the appeal. The PCRA court set forth the relevant facts, procedural
history, and reasons for dismissing Appellant’s petition as follows:
On May 2, 2003, [A]ppellant was tried in absentia and found
guilty of four counts of possession with intent to deliver a
controlled substance (PWID) and one count of criminal
conspiracy on two separate [dockets].1 The date of the
offenses are documented as July 18, 2001 on [Docket No.]
CP-51-CR-1203221-2002, and August 2, 2001 on [Docket
No.] CP-51-CR-0700541-2002. On June 24, 2003,
[A]ppellant was sentenced to an aggregate [term] of 12½
to 25 years’ incarceration by the Honorable Eugene Maier.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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Appellant’s direct appeal was dismissed on February 24,
2004, for failure to file a brief. (2436 EDA 2003)
1 35 [P.S.] § 760-113 [(a)](30); 18 Pa.C.S. § 903.
On January 7, 2018, [A]ppellant filed the instant amended
PCRA petition claiming that he is entitled to relief based
upon [newly discovered facts and] after discovered
evidence, alleging ongoing revelations of police corruption
involving Police Officers Thomas Liciardello and Lewis
Palmer, two officers involved in the prosecution of his case.
In its response to [A]ppellant’s petition, the Commonwealth
asserted that the earliest date of verifiable police
misconduct involving the officers was February 2006.
Following a thorough review of [A]ppellant’s submissions,
the Commonwealth’s response and the law regarding
exceptions to the timeliness requirements of the PCRA, the
[c]ourt determined that it lacked jurisdiction to consider the
merits of [A]ppellant’s PCRA petition as it was untimely, and
[A]ppellant had failed to prove the applicability of an
exception. Following required notice, [A]ppellant’s petition
was dismissed without a hearing. He now appeals.
On appeal, [A]ppellant complains that the [c]ourt erred in
dismissing his petition without a hearing because his
convictions are based upon the testimony of corrupt police
officers [who] the Commonwealth believes are not credible.
Appellant contends that his claims require that his sentence
be vacated. Appellant’s contentions are incorrect. In early
2013, it was confirmed that certain officers were under
investigation by the FBI and Philadelphia Police Department
Internal Affairs for fabricating narcotics arrests and other
misconduct alleged to have occurred between 2006 and
2012. Several officers were later federally indicted. Review
of the federal indictment reveals that the allegations of
police misconduct alleged therein encompassed the time
period from 2006 through 2012. The Commonwealth
subsequently chose to review the integrity of criminal
convictions that occurred between those dates which
involved the officers under investigation/indictment,
including Liciardello and Palmer. PCRA relief was granted in
a number of cases where those officers played an integral
role in the prosecution of the case. Appellant’s arrests
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occurred in 2001, five years before the earliest date of
February 2006, and as such, do not fall within the dates of
alleged misconduct identified in the federal indictment or by
the Commonwealth. Therefore, [A]ppellant has failed to
demonstrate the existence of unknown facts, namely
alleged misconduct by officers involved in his arrest and
prosecution which occurred during the time of his arrest.
When a petition is untimely on its face, and the petitioner
has not pled and proven an exception, the petition must be
dismissed without a hearing because Pennsylvania courts
are without jurisdiction to consider the merits of the
petition. [Commonwealth v. Hudson], 156 A.3d 1194,
1197 ([Pa.Super.] 2017) [(citing Commonwealth v.
Taylor, [65 A.3d 462 (Pa.Super. 2013))].
(PCRA Court Opinion, filed December 5, 2018, at 1-4) (internal footnotes 2
and 3 omitted).
Preliminarily, on June 1, 2018, the Walker Court held that the common
practice of filing a single notice of appeal from an order involving more than
one docket would no longer be tolerated, because the practice violates
Pa.R.A.P. 341, which requires the filing of “separate appeals from an order
that resolves issues arising on more than one docket.” Id. at __, 185 A.3d at
977. The failure to file separate appeals under these circumstances “requires
the appellate court to quash the appeal.” Id. Instantly, Appellant filed a
single notice of appeal from the order that denied PCRA relief at two separate
docket numbers. Appellant’s single notice of appeal was filed on September
21, 2018, which postdates and is therefore bound by the Walker decision,
and must be quashed.
Appeal quashed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/16/19
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