J-S54025-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ROBERT PASDON

Appellant No. 47 EDA 2015

Appeal from the Order December 10, 2014

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0005525-2009

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ROBERT PASDON

Appellant No. 48 EDA 2015

Appeal from the Order December 10, 2014

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0001593-2007

BEFORE: BOWES, J., PANELLA, J., and FITZGERALD, J.

MEMORANDUM BY PANELLA, J. FILED OCTOBER 14, 2015

In these consolidated appeals, Appellant, Robert Pasdon, appeals from 

the orders entered in the Court of Common Pleas of Delaware County, which 

____________________________________________



Former Justice specially assigned to the Superior Court.
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denied his “Post Sentence Motion-Nunc Pro Tunc,” which he filed in two 

separate cases.1 We find that the lower court should have treated the motion 

____________________________________________

1 We must address a procedural irregularity. Pasdon filed one notice of 

appeal from orders entered at two lower court docket numbers. See Notice 

of Appeal, filed 12/22/14. The filing of one notice of appeal from orders 

entered at different docket numbers “has long been discouraged.” 20 G. 

Ronald Darlington, et al., Pennsylvania Appellate Practice § 341:3.102 

(2013-2014 ed.) (footnote omitted). This policy is set forth in the Note to 

Rule 341 of the Pennsylvania Rules of Appellate procedure, which states that 

“[w]here, however, one or more orders resolve issues arising on more than 

one docket or relating to more than one judgment, separate notices of 

appeal must be filed.” Pa.R.A.P., 341 Note. 

Courts, however, have not automatically quashed such appeals. For 

instance, our Supreme Court considered this question in General Electric 

Credit Corp. v. Aetna Casualty & Surety Co., 263 A.2d 448 (Pa. 1970), 

where the appellant filed a single appeal from two separate judgments 

entered against it. Upon considering these facts, our Supreme Court stated:

Taking one appeal from several judgments is not acceptable 

practice and is discouraged. It has been held that a single 

appeal is incapable of bringing on for review more than one final 

order, judgment or decree. When circumstances have 

permitted, however, we have refrained from quashing the whole 

appeal, but this Court has quashed such appeals where no 

meaningful choice could be made. 

Id., at 452-453 (internal citations and footnotes omitted). 

Similarly, this Court, citing General Electric Credit Corp., declined to 

quash where counsel for appellants filed only one notice of appeal from 

separate orders denying each appellant’s motion to intervene. See 

Egenrieder v. Ohio Casualty Group, 581 A.2d 937, 940 n.3 (Pa. Super. 

1990). The panel noted that counsel should have filed a separate notice of 

appeal for each appellant and that the appeals would then have been subject 

to consolidation. See id. But see Commonwealth v. C.M.K., 932 A.2d 111 

(Pa. Super. 2007) (court quashing single notice of appeal by criminal codefendants who were tried jointly but sentenced individually). 

(Footnote Continued Next Page)
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as a petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. 

§§ 9541-9546. We affirm the appeal docketed in this Court at 48 EDA 2015 

and vacate and remand for further proceedings the appeal docketed at 47 

EDA 2015. A full discussion follows. 

Pasdon filed, pro se, a “Post Sentence Motion-Nunc Pro Tunc” on 

October 31, 2014. The motion requests relief in two separate cases. The first 

case is docketed in the lower court at CP-23-CR-0001593-2007; the second 

at CP-23-CR-0005525-2009. In both cases, Pasdon pled guilty to, among 

other charges, luring a child into a motor vehicle, 18 Pa.C.S.A. § 2910(a). In 

his nunc pro tunc post-sentence motion, Pasdon alleges that his guilty pleas 

are “null and void” because he entered them involuntarily; that his 

convictions are illegal; that his sentence at 1593-2007 is illegal; and that his 

lifetime registration under Megan’s Law is unconstitutional. See Post 

Sentence Motion-Nunc Pro Tunc, filed 10/31/14, at ¶¶ 4-5, 11-12, 18. The 

trial court denied Pasdon relief. The court filed an opinion, docketed under 

the 1593-2007 term number, that addressed each claim, except the claim 

that the convictions are illegal, and explained why they failed to provide 

(Footnote Continued) _______________________

Thus, the filing of one notice of appeal is “discouraged,” but both our 

Supreme Court and this Court have refrained from quashing an appeal 

where “circumstances have permitted.” Our examination of the procedural 

posture of this case leads us to the conclusion that the circumstances here 

permit us to exercise discretion and permit these appeals. We will not quash 

the appeals, but, in the interest of judicial economy, will accept them. After 

all, this Court has already consolidated the appeals. See Pa.R.A.P. 513.
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relief. See Trial Court Opinion, filed 2/6/15, at 1-9. See also Trial Court 

Opinion, filed 5/14/15, docketed at term number 5525-2009 (noting that a 

second, separate opinion at this term number is unnecessary).

To understand whether the court correctly decided Pasdon’s motion, 

we must examine the procedural posture of the two underlying cases, 1593-

2007 and 5525-2009. We begin with the pertinent procedural history of the 

2007 term number case. 

There, after the entry of Pasdon’s guilty plea, the trial court sentenced 

him to a term of intermediate punishment and probation. Pasdon appealed, 

but later discontinued the appeal. See Commonwealth v. Pasdon, No. 

2450 EDA 2007 (Pa. Super. 2008) (certificate of discontinuance filed by 

Court on April 22, 2008). 

Pasdon was still on probation when the police arrested him for again 

luring a child into his vehicle. He pled guilty to this and other charges 

stemming from that incident with the child at term number 5525-2009. 

Based on the probation violation, the trial court imposed a judgment of 

sentence of five to ten years’ incarceration at term number 1593-2007 on 

April 20, 2010. In 2013, Pasdon filed a pro se PCRA petition at the 2007 

term number. The PCRA court appointed counsel, but counsel was later 

permitted to withdraw. The PCRA court denied the petition on April 10, 

2014. Pasdon did not appeal that ruling. On October 31, 2014, Pasdon filed 
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the “Post Sentence Motion-Nunc Pro Tunc,” which the trial court denied on 

December 10, 2014. 

We next consider the procedural posture of the case at 5525-2009. 

The procedural history of that term number is much shorter. On March 1, 

2010, the trial court imposed a judgment of sentence, but later filed an 

amended sentencing order on March 10. In that order, the trial court 

amended the sentence to a period of time-served to 23 months and to four 

years of probation. As noted, Pasdon filed his post-sentence motion on 

October 31, 2014, which the trial court denied. 

These timely appeals followed. Preliminarily, we note that the trial 

court only partially construed the post-sentence motion, filed years after the 

judgments of sentence, as a petition under the PCRA. For instance, the court 

noted, “[i]f the current Post-Sentence Motion nunc pro tunc were treated as 

a PCRA, these issues fail because of the PCRA’s prohibition against raising 

‘previously litigated’ issues.” Trial Court Opinion, filed 2/6/15, at 3. But the 

opinion only addresses the Megan’s Law claim under the PCRA, rejecting the 

claim as previously litigated. See id., at 8. The court, however, addressed 

the other claims as if on direct appeal. See id., at 5-8. It seems some sort 

of hybrid review occurred in the lower court. 

“The PCRA states that it ‘shall be the sole means of obtaining collateral 

relief and encompasses all other common law and statutory remedies for the 

same purpose that exist when this subchapter takes effect’....” 
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Commonwealth v. Descardes, 101 A.3d 105, 108 (Pa. Super. 2014) (en 

banc) (citing 42 Pa.C.S.A. § 9542), appeal granted on other grounds, 

113 A.3d 278 (Pa. 2015) (Table). “[A]ny petition filed after the judgment of 

sentence becomes final will be treated as a PCRA petition.” Commonwealth 

v. Kubis, 808 A.2d 196, 199 (Pa. Super. 2002) (citation omitted). See also 

Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001) 

(treating pro se petition, entitled “Notice of Post-Sentence Motion 

Challenging Validity of Guilty Plea to Permit Withdrawal, Nunc Pro Tunc,” as 

a PCRA petition).

Accordingly, we will construe the nunc pro tunc post-sentence motion 

as a PCRA petition for each appeal. We begin with the 2007 term number 

case. 

“Even where neither party nor the PCRA court have addressed the 

matter, it is well-settled that we may raise [the issue of timeliness] sua 

sponte since a question of timeliness implicates the jurisdiction of our 

Court.” Commonwealth v. Gandy, 38 A.3d 899, 902 (Pa. Super. 2012) 

(citation and internal quotation marks omitted). “The PCRA timeliness 

requirements are jurisdictional in nature and, accordingly, a court cannot 

hear untimely PCRA petitions.” Commonwealth v. Flanagan, 854 A.2d 

489, 509 (Pa. 2004) (citations omitted).

A PCRA petition must be filed within one year of the date that the 

judgment of sentence becomes final. See 42 Pa.C.S.A. § 9545(b)(1). 
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Pasdon’s serial PCRA petition, filed on October 31, 2014, is patently 

untimely, as his judgment of sentence became final on May 20, 2010. As 

Pasdon’s PCRA petition was not timely filed, “the courts have no jurisdiction 

to grant [him] relief unless he can plead and prove that one of the 

exceptions to the time bar provided in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) 

applies.” Commonwealth v. Pursell, 749 A.2d 911, 914-915 (Pa. 2000). 

Pasdon has not pled any exceptions to the timebar. See Post Sentence 

Motion-Nunc Pro Tunc, filed 10/31/14. We briefly note that he maintains that 

his legality of the sentence claim cannot be waived. See id., at ¶ 17. That is 

true, but that does not mean the claim is subject to review in an untimely 

PCRA. See Commonwealth v. Jones, 932 A.2d 179, 182 (Pa. Super. 2007) 

(“[W]hen a petitioner files an untimely PCRA petition raising a legality-ofsentence claim, the claim is not waived, but the jurisdictional limits of the 

PCRA itself render the claim incapable of review.”). Therefore, the lower 

court was without jurisdiction (as are we) to entertain Pasdon’s petition.

We next consider the appeal from term number 5525-2009. The 

petition filed on October 31, 2014, is also patently untimely, as his judgment 

of sentence became final on April 9, 2010. This, however, is Pasdon’s first

PCRA petition filed in this case. And he is indigent. He is therefore entitled to 

court-appointed counsel. See Commonwealth v. Smith, 818 A.2d 494, 

500-501 (Pa. 2003) (“Rule 904 [of the Pennsylvania Criminal Rules of 

Procedure] mandates that an indigent petitioner, whose first PCRA petition 
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appears untimely, is entitled to the assistance of counsel in order to 

determine whether any of the exceptions to the one-year time limitation 

apply.”). Accordingly, we vacate the order entered in 5525-2009 and 

remand for the appointment of counsel. 

Order at 47 EDA 2015 vacated. Case remanded for proceedings 

consistent with this memorandum. Order at 48 EDA 2015 affirmed. 

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/14/2015
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