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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LUTHER L. WARE, JR. :
:
Appellant : No. 1087 WDA 2018
Appeal from the PCRA Order Entered June 19, 2018
In the Court of Common Pleas of Clearfield County Criminal Division at
No(s): CP-17-CR-0000239-2015,
CP-17-CR-0000734-2014
BEFORE: OLSON, J., OTT, J., and COLINS*, J.
MEMORANDUM BY OLSON, J.: FILED MAY 21, 2019
Appellant, Luther L. Ware, Jr., appeals pro se from the June 19, 2018
order dismissing his petition filed pursuant to the Post-Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We quash.
As our resolution of this appeal is based on a procedural defect, we need
not set forth the factual and procedural history at length. The PCRA court
aptly summarized the rather convoluted background of the case in its
Pa.R.A.P. 1925(a) opinion. See PCRA Court Opinion, 9/20/2018, at 1-10. In
short, in 2014 and 2015, the Commonwealth, through the Pennsylvania Office
of the Attorney General, indicted Appellant on various charges related to drug
trafficking. The Commonwealth charged Appellant at two separate docket
numbers, CP-17-CR-734-2014 and CP-17-CR-239-2015, and the cases were
consolidated for trial. A jury convicted Appellant of all but one of the charges
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* Retired Senior Judge assigned to the Superior Court.
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and the trial court sentenced him to 11 to 30 years’ incarceration. Appellant
filed, or attempted to file, a number of PCRA petitions, both with and without
the assistance of counsel. Ultimately, the PCRA court allowed Appellant to
proceed pro se to a hearing on his May 11, 2017, amended PCRA petition. On
June 21, 2018, after an extended hearing, the PCRA court dismissed
Appellant’s petition. This appeal followed.1
Appellant’s brief raises the following issues for our review:
I. Did the [t]rial [c]ourt err when it failed to: 1. [a]ppoint
[c]ounsel to represent Appellant when he could not afford
to hire [c]ounsel; 2. [a]ppoint [c]ounsel at the critical stages
of the criminal proceedings; 3. [c]onduct an on the record
colloquy as required by Pa.Crim.P.R. 121(C) to determine if
Appellant desired to waive his right to [c]ounsel at the
critical stages of the criminal proceedings; 4. [g]rant [t]rial
[c]ounsel’s [m]otion for [c]ontinuance? []
II. Did the Commonwealth violate Appellant’s right to [d]ue
[p]rocess and a fair trial when it: 1. [w]illfully withheld
impeachment evidence; 2. [m]isrepresent[ed] the facts and
misle[d] the [c]ourt and [j]urors; 3. [f]ailed to correct false
testimony; and 4. [w]illfully withheld [d]iscovery from pro
se [Appellant]? []
III. Did the PCRA [c]ourt err when it denied Appelant a full and
fair PCRA review on June 19, 2018, by: 1. [d]ismissing
Appellant’s [c]onstitutional claims as previously being
waived; 2. [d]ismissing Appellant’s [c]onstitutional claims
without a hearing; 3. [i]gnor[ing] evidence in support of
Appellant’s [c]onstitutional claims and evidence not
available at the time of trial; 4. [b]eing bias[ed] against
Appellant for proceeding pro se? []
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1 On July 12, 2018, the PCRA court ordered Appellant to file a concise
statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant complied on July 26, 2018. The PCRA court issued its 1925(a)
opinion on September 20, 2018.
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IV. Was [t]rial [c]ounsel ineffective when he did not: 1. [s]eek
suppression of the evidence when the [a]ffidavit of
[p]robable [c]ause did not set forth a time frame when the
[confidential informant] had observed drugs in Appellant’s
residence and when the [a]ffidavit of [p]robable [c]ause was
based on a deliberate material misstatement of fact; and 2.
[w]hen he did not object to evidence that was inadmissible
and request a mistrial? []
Appellant’s Brief at 3-3A.
Before we consider the merits of Appellant's claims, we must first
determine whether this appeal is properly before us. On July 24, 2018,
Appellant filed a single notice of appeal, which listed both docket numbers
CP-17-CR-734-2014 and CP-17-CR-239-2015. As Appellant failed to comply
with Pa.R.A.P. 341 and our Supreme Court’s directive in Commonwealth v.
Walker, 185 A.3d 969 (Pa. 2018), we may not reach the merits of his claims
and we are constrained to quash the appeal.
The Official Note to Rule 341(a) provides that where a single order
resolves issues arising on more than one docket, separate notices of appeal
must be filed pertaining to each docket number. In Walker, the Pennsylvania
Supreme Court determined that the Official Note “provides a bright-line
mandatory instruction to practitioners to file separate notices of appeal.”
Walker, 185 A.3d at 967, 977. Failure to comply with Rule 341 must result
in quashal of the appeal. Id. at 977. Our Supreme Court issued the Walker
decision on June 1, 2018, and held that it shall apply prospectively to appeals
filed after that date. The instant appeal was filed on July 24, 2018, therefore,
Walker controls.
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On August 23, 2018, this Court issued an order directing Appellant to
show cause as to why this appeal should not be quashed pursuant to Walker.
Appellant failed to timely respond to the order and it was discharged and
referred to the merits panel on September 11, 2018. On September 24, 2018,
Appellant filed a “Motion to Consolidate Appellant’s Two Appeals,” 2 which
averred that Appellant did not have the opportunity to read the Walker
decision until September 13, 2018, because it was not available on the prison
law library computers. In addition, Appellant asserted that the instant appeal
involves one defendant and the facts and issues raised as to both docket
numbers are identical. Appellant’s Motion to Consolidate, 9/24/2018, at 1.
Appellant also noted that he is not an attorney or familiar with the rules of
appellate procedure. Id. at 2.
Walker mandates that, after June 1, 2018, 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. Our Supreme Court did
not carve out any exceptions and we have no authority to do so. Moreover,
the plain text of the commentary to Rule 341, found in the version of the
appellate rules that was available to Appellant at the time he filed his notice
of appeal states, “[w]here, however, one or more orders resolves issues
arising on more than one docket or relating to more than one judgment,
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2 This motion appears to be an attempt to respond to our show cause order.
In it, Appellant requests that this Court consolidate his two appeals. It seems
Appellant misunderstood the procedure involved, but we will treat the motion
as a request for this Court not to quash his appeal.
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separate notices of appeal must be filed.” Pa.R.A.P. 341 cmt. (from
Pennsylvania Rules of Court, Volume I – State, 2018 which includes
amendments issued up to December 15, 2017) (emphasis added).
Accordingly, we must quash the appeal.
Appeal quashed. Motion to consolidate denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/21/2019
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