J-S01007-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DARIAN TOULIQUE SIMMONS- :
WALTON :
: No. 1440 MDA 2018
Appellant :
Appeal from the Judgment of Sentence Entered July 24, 2018
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0001114-2017,
CP-35-CR-0001126-2017
BEFORE: PANELLA, P.J., MURRAY, J., and PELLEGRINI, J.
MEMORANDUM BY PANELLA, P.J.: FILED JUNE 28, 2019
Darian Toulique Simmons-Walton appeals from the judgment of
sentence entered on July 24, 2018 in the Lackawanna County Court of
Common Pleas. Specifically, Appellant challenges the discretionary aspects of
his sentence. After careful review, we quash this appeal.
In light of our disposition, a complete recitation of the factual and
procedural history is unnecessary. Relevant for our purposes, on March 27,
2018 Appellant pled guilty under CP-35-CR-0001114-2017 to one count each
of possession with intent to deliver (PWID), aggravated assault, and resisting
arrest. At the same time, Appellant pled guilty under CP-35-CR-0001126-2017
to default in required appearance.
____________________________________________
Retired Senior Judge assigned to the Superior Court.
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On July 24, 2018, under CP-35-CR-0001114-2017, Appellant was
sentenced to twenty one to forty eight months’ incarceration followed by two
years of probation for PWID, sixty to one hundred and twenty months’
incarceration followed by two years of probation for aggravated assault, and
two years of probation for resisting arrest. Additionally, under CP-35-CR-
0001126-2017, he was sentenced to two years of probation for default in
required appearance. All sentences were to run consecutively for an aggregate
sentence of eighty-one to one hundred and sixty eight months’ incarceration
followed by eight years of probation.
Before we reach the issues presented by Appellant on appeal, we must
first address the fact that Appellant filed a single notice of appeal raising issues
that relate to two docket numbers.
The Pennsylvania Supreme Court has held that “where a single order
resolves issues arising on more than one docket, separate notices of appeal
must be filed for each case.” Commonwealth v. Walker, 185 A.3d 969, 971
(Pa. 2018). The Court explained, “[t]he Official Note to Rule 341 provides a
bright-line mandatory instruction to practitioners to file separate notices of
appeal” and “[t]he failure to do so requires the appellate court to quash the
appeal.” Id., at 976-977; See also Pa.R.A.P. 341, Official Note.
However, the Court in Walker declined to apply the rule to the case
before it, because to do so would run “contrary to decades of case law from
[the Pennsylvania Supreme Court] and the intermediate appellate courts that,
while disapproving of the practice of failing to file multiple appeals, seldom
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quashed appeals as a result.” Id. Thus, the Supreme Court instructed that in
all future cases, a failure to file a notice of appeal for each lower court docket
will result in quashal of the appeal. See id., at 977.
On October 19, 2018, this Court issued an order directing Appellant to
show cause why the appeal should not be quashed pursuant to Walker.
Appellant filed a counseled response. In his response, Appellant argued the
present case is distinguishable from Walker for the following reasons:
a. The present matter involves one defendant and not multiple
parties;
b. In the present matter, the cases were consolidated for the
purpose of both litigation, plea and sentencing;
c. The evidence under evaluation, the sentencing court’s reasons
for the sentences imposed, along with the sentences imposed, do
not require individualized arguments;
d. The Appellee has raised no objection to the improper
procedure;
e. The Appellee would suffer no prejudice if this Court addressed
this appeal as a result;
f. The period of time in which to file an appeal has run, such that
Appellant would be denied timely appellate review;
g. The mandates of judicial economy would be served if this Court
considers the present appeal;
h. The Walker decision involved a single appeal by the
Commonwealth of a suppression order involving several
defendants filed under separate dockets; and
i. The Walker decision is contrary decades of case law from our
appellate courts which seldom quashed appeals where multiple
appeals were not filed.
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Appellant’s Response to Rule to Shower Cause, 10/23/2018, at 2. By order
entered November 9, 2018, this Court discharged its rule to show cause and
referred the matter to the merits panel.
We are unable to agree with any of Appellant’s proffered grounds to
forgo quashal. The Supreme Court did not carve out any exceptions to the
holding in Walker after June 1, 2018, and we have no authority to do so.
Therefore, consolidated treatment of separately docketed cases does not
constitute a reason to distinguish Walker. Further, Appellant’s response
seems to attempt to reconcile the present circumstances with case law prior
to Walker, which is not controlling1. Finally, this Court has recently explicitly
rejected Appellant’s arguments. See Commonwealth v. Nichols, ___ A.3d
___, 2019 WL 1783645, *1 (Pa. Super., filed April 24, 2019) (rejecting
arguments that quashal was not required because (1) each docket had
identical issues, (2) Commonwealth did not object, (3) quashal would deny
appellate review, and (4) quashal was contrary to long-standing case law).
____________________________________________
1 Appellant’s response seems to make an argument for an exception under
the holding of General Electric Credit Corporation v. Aetna Casualty and
Surety Company, 263 A.2d 448 (Pa. 1970) (holding quashal unnecessary
where a single notice of appeal applies to multiple orders when (1) the issues
raised are “substantially identical,” (2) the appellee raised no objection, and
(3) the time to file an appeal has expired). However, the holding in Walker
was explicitly made to be prospective. Accordingly, Appellant’s notice of
appeal, filed after June 1, 2018, would be controlled by Walker.
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Here, it is undisputed that Appellant filed a single notice of appeal, listing
both trial court docket numbers at issue. Because he filed this notice after
June 1, 2018, we are constrained to quash this appeal.2
Appeal quashed. Jurisdiction relinquished.
Judge Murray join the memorandum.
Judge Pellegrini notes dissent.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/28/2019
____________________________________________
2 Although we are constrained to quash this appeal, we note Appellant’s issues
are nevertheless without merit. Appellant’s first issue is waived as he failed to
preserve it either during sentencing or in his post-sentence motion. See
Commonwealth v. Feucht, 955 A.2d 377, 383 (Pa. Super. 2008) (“To
preserve issues concerning the discretionary aspects of sentencing, a
defendant must raise them during sentencing or in a timely post-sentence
motion”). Further, Appellant’s second issue is waived as he fails to address
how the issue presents a substantial question in his Rule 2119 statement. See
Commonwealth v. Diehl, 140 A.3d 34, 45 (Pa. Super. 2016) (“[W]e cannot
look beyond the statement of questions presented and the prefatory 2119(f)
statement to determine whether a substantial question exists”).
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Com. v. Simmons-Walton, D.
Combined Opinion