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2022 PA Super 130
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
BRENDAN PATRICK YOUNG : No. 2088 MDA 2018
Appeal from the Order Entered November 21, 2018
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0000784-2018,
CP-14-CR-0001389-2017, CP-14-CR-0001540-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
DANIEL CASEY : No. 2089 MDA 2018
Appeal from the Order Entered November 21, 2018
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0000781-2018,
CP-14-CR-0001377-2017, CP-14-CR-0001536-2018
BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.
CONCURRING OPINION BY LAZARUS, J.: FILED AUGUST 03, 2022
I concur in the result. Specifically, I join the Majority’s disposition of
the Commonwealth’s appeals from the orders granting, in part, the
suppression motions filed by Defendants Young and Casey. I agree that the
Commonwealth may file corrective, separate notices of appeal at each of the
six docket numbers at issue, rather than suffer the harsh result of quashal
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pursuant to Walker. I write separately, however, to the extent that the
Majority’s holding today could be interpreted to foreclose that same avenue
to parties who have included multiple docket numbers on their petitions
seeking discretionary review of an interlocutory order. That issue is simply
not before our Court today where the Supreme Court did not make any
pronouncement on the Walker issue with regard to Rule 312 in denying
Defendants’ petition for review.
The instant notice of appeal was filed by the Commonwealth and, thus,
this appeal only involves review of the orders granting suppression of
evidence—orders that are deemed appealable as of right. See Pa.R.A.P.
311(d); see also Young, supra at 477-78 (“we remand to th[e Superior
Court] to reconsider the Commonwealth’s request to remediate its error”). In
fact, the Supreme Court specifically denied Defendants’ nunc pro tunc petition
for review, see 10 MM 2020 (Pa. filed June 2, 2020) (per curiam order),
declining to accept the appeal on a jurisdictional basis. See Commonwealth
v. Brister, 16 A.3d 530, 534-35 (Pa. Super. 2011) (“appealability of an order
directly implicates the jurisdiction of the court asked to review the order”).
Therefore, a substantive discussion about Defendants’ petition for review is
inappropriate, and, concomitantly, the Defendants are foreclosed from raising
any issue regarding that denial on appeal.1
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1 I would note that the Defendants followed the proper procedure to challenge
the trial court’s decision on the constitutionality of the anti-hazing statute.
(Footnote Continued Next Page)
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The majority paints with too broad a brush when it states that the
Walker rule applies to appeals taken pursuant to Rule 312.2 See Majority
Opinion, at 13 (emphasis added) (“The Young decision did not eliminate the
requirement of Walker and its progeny that separate notices of appeal be
filed when a single order implicates multiple docket numbers whether that
appeal is taken pursuant to Rule 341, 311 or Rule 312.”). The decision today
should not opine on the effect of Walker and its progeny on cases which are
not appeals as of right, like the petitions for review filed by Defendants. In
my opinion, the issue of whether the dictates of Walker and its progeny
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First, they asked the trial court to certify that its order involved a controlling
question of law as to which there is a substantial ground for difference of
opinion and that an immediate appeal from the order would materially
advance the ultimate termination of the matter. See 42 Pa.C.S. § 702(b).
The trial court complied and included the appropriate certification language in
its order. Next, the Defendants filed a petition for permission to appeal to our
Court requesting that we review the trial court’s denial of their motion to find
the anti-hazing statute unconstitutional. See Pa.R.A.P. 312; Pa.R.A.P. 1311.
After our Court denied Defendants’ petition for permission to appeal,
Defendants filed a petition for leave of court to file a nunc pro tunc petition
for review in the Supreme Court. Id. While the Supreme Court granted
Defendants’ petition for leave, the Court ultimately denied Defendants’
petition for review, choosing not to remand for a consideration of whether
Defendants should be permitted to correct their failure to file separate
petitions for review at each of the dockets affected by the trial court’s order.
Thus, that petition is not before us and we will not speculate as to what our
Supreme Court’s view would be with regard to the applicability of Walker to
petitions for review.
2 As the majority astutely notes, the processes for appealing interlocutory
orders under Pa.R.A.P. 1311 and non-final orders appealable under Rule
311(d) are distinct. The former process involves the filing of a petition
seeking discretionary appellate review, while the latter encompasses the filing
of a notice of appeal for review as of right.
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pertain to petitions under Rule 312 is best saved for the Supreme Court or the
Appellate Procedural Rules Committee. For these reasons, I write separately.
Dubow, J., joins this Concurring Opinion.
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