J-S07038-20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
HERACLIO BERNAL CRUZ, :
:
Appellant : No. 3190 EDA 2018
Appeal from the PCRA Order Entered September 21, 2018
in the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0002602-2012
CP-15-CR-0003187-2011
BEFORE: NICHOLS, J., KING, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 03, 2020
Heraclio Bernal Cruz (Appellant) appeals from the September 21, 2018
order dismissing his petition filed under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we quash this appeal.
In light of our disposition, a detailed recitation of the underlying facts
is unnecessary. Pertinent to this appeal, on March 26, 2013, Appellant
entered into an open guilty plea, whereby he pleaded guilty to 37 counts of
possession of a controlled substance (cocaine) with intent to deliver (PWID),
one count of criminal conspiracy,1 and one count of corrupt organizations.2
On May 14, 2014, he was sentenced to an aggregate term of 23 to 50 years
1 These 38 counts were charged at docket number 3187-2011.
2 This count was charged at docket number 2602-2012.
* Retired Senior Judge assigned to the Superior Court.
J-S07038-20
of incarceration, which included several consecutive mandatory-minimum
sentences for the charges at docket number 3187-2011.3 On appeal from
that aggregate sentence, this Court vacated Appellant’s judgment of
sentence as being illegal pursuant to Alleyne v. United States, 570 U.S.
99 (2013), and its progeny. Commonwealth v. Cruz, 144 A.3d 210 (Pa.
Super. 2016) (unpublished memorandum).
On March 31, 2017, Appellant was resentenced to an aggregate term
of 18 to 36 years of incarceration. That sentence included terms of
incarceration at both docket numbers. No post-sentence motions or direct
appeal were filed.
On January 8, 2018, Appellant filed a motion to modify sentence listing
both docket numbers. On January 29, 2018, the court entered an order
treating Appellant’s motion as a timely-filed PCRA petition and appointed
Attorney Laurence Harmelin to represent Appellant. Attorney Harmelin filed
an amended petition requesting the PCRA court grant Appellant leave to file
a post-sentence motion and direct appeal nunc pro tunc. A hearing was
held,4 and on September 21, 2018, the PCRA court entered an order denying
Appellant’s petition. The order was filed at both docket numbers.
3 The sentence for criminal conspiracy at docket number 2602-2012 was two
to four years of incarceration to be served concurrently with his other
sentences.
4This transcript is not included in the certified record; however, that does
not affect our disposition.
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J-S07038-20
On October 16, 2018, Attorney Harmelin timely filed a single notice of
appeal, which listed both docket numbers. Subsequently, Attorney Steve
Jarmon was appointed to represent Appellant.5
On appeal to this Court, Appellant contends the PCRA court erred in
concluding trial counsel was not ineffective for failing to file a post-sentence
motion. See Appellant’s Brief at 4. Prior to reaching the merits of this
appeal, we must consider whether it should be quashed in light of our
Supreme Court’s holding in Commonwealth v. Walker, 185 A.3d 969 (Pa.
2018).6
In Walker, our Supreme Court considered whether to quash an appeal
where one notice of appeal was filed for orders entered at more than one
docket number. The Official Note to Pennsylvania Rule of Appellate
Procedure 341(a) provides that “[w]here … one or more orders resolves [sic]
issues arising on more than one docket … separate notices of appeal must be
filed.” Pa.R.A.P. 341, Note. In Walker, our Supreme Court found that the
“Official Note to Rule 341 provides a bright-line mandatory instruction to
practitioners to file separate notices of appeal.” Id. at 976-77. Thus, it held
5The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925.
6 On January 3, 2019, this Court issued a rule to show cause on Appellant as
to why this appeal should not be quashed pursuant to Walker. On January
11, 2019, Attorney Jarmon responded that he “can only assume [Attorney
Harmelin] was not aware of [Walker] prior to filing the appeal in this case.”
Response to Rule to Show Cause, 1/11/2019, at ¶ 4. The rule was
discharged and the issue was deferred to this panel for consideration.
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that for appeals filed after June 1, 2018, the date Walker was filed, “when a
single order resolves issues arising on more than one lower court docket,
separate notices of appeal must be filed.” Id. at 977. The Court emphasized
that the “failure to do so will result in quashal of the appeal.” Id.
In this case, on October 16, 2018, Appellant filed a single notice of
appeal from an order dismissing Appellant’s PCRA petition filed at two docket
numbers. Because Appellant filed his notice of appeal after our Supreme
Court’s decision in Walker, and failed to comply with Rule 341, we must
quash this appeal. See Commonwealth v. Nichols, 208 A.3d 1087 (Pa.
Super. 2019) (quashing appeal from order denying timely-filed PCRA petition
listing three docket numbers).
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/3/20
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Com. v. Cruz, H.
Combined Opinion