J-S06003-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

NATHANIEL MCFADDEN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3477 EDA 2019

Appeal from the Judgment of Sentence Entered December 19, 2017

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0011256-2016, 

CP-51-CR-0011257-2016

COMMONWEALTH OF PENNSYLVANIA

v.

NATHANIEL MCFADDEN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3478 EDA 2019

Appeal from the Judgment of Sentence Entered December 19, 2017

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0011256-2016, 

CP-51-CR-0011257-2016

BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY PANELLA, P.J.: Filed: May 13, 2021

Nathaniel McFadden appeals nunc pro tunc from the judgment of 

sentence entered on December 19, 2017 in the Philadelphia Court of Common 

Pleas, after he pled guilty to a physical altercation involving both his 

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* Retired Senior Judge assigned to the Superior Court.
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grandmother and aunt that resulted in his grandmother’s death. As will be 

discussed in detail below, the judgment of sentence involved two related 

criminal dockets, CP-51-CR-0011256-2016 (“Docket No. 11256”) and CP-51-

CR-0011257-2016 (“Docket No. 11257”), which were listed as appellate 

docket numbers, 3477 EDA 2019 and 3478 EDA 2019, respectively.

McFadden now challenges the validity of his guilty plea. Based on the 

following, we affirm the matter at Docket No. 3477 EDA 2019. Because we 

conclude we lack jurisdiction due to McFadden’s untimely appeal at Docket 

No. 3478 EDA 2019, we quash.

The trial court summarized the factual basis for McFadden’s plea as 

follows:

At the time of the incident, [McFadden] lived with his 

grandmother, the decedent Janie Dawson, who was 85 years old, 

and his aunt Brenda Dawson on the 200 block of Judson Street in 

Philadelphia, Pennsylvania. On March 9, 2016, [McFadden]’s 

mother, Cornell McFadden, visited the residence to check in on 

her family members. [Cornell] encountered her son in the living 

room, which was in disarray, and [McFadden] informed her that 

Janie and Brenda had been fighting. [Cornell] went upstairs and 

found her mother, Janie, lying naked on the floor and noticed that 

she had bruising on her face and body. [Cornell] called her 

brother, Ike Dawson, who came to the residence. Ike asked 

[McFadden] what happened, to which [McFadden] responded 

“Fuck, F-U-C-K, them old bitches.” [Cornell] called the police and 

[McFadden] promptly left the residence. The medics came to the 

residence and then transferred Janie to the hospital. On the way 

to the hospital, Janie told the medics that her grandson, 

[McFadden], had caused the injuries to her. On March 23, 2016, 

Janie died at a hospice care facility.

The medical examiner determined that the cause of Janie’s 

death was blunt impact trauma to the head and the manner of 

death was homicide. Janie had nine separate bruises on her body, 
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most of which measured between two to three inches. Detectives 

interviewed [McFadden]’s [aunt], Brenda, who informed them that 

she was in pain because [McFadden] had kicked her.

[McFadden] was arrested on June 1, 2016, and brought to 

the Homicide Unit for questioning. In his statement to detectives, 

[McFadden] stated that his grandmother, Janie, and his aunt, 

Brenda, frequently picked on him and fought with him. He stated 

that on March 7, 2016, which is two days before Janie was rushed 

to the hospital, the three housemates were in a fight that lasted 

two days. He said that he and Janie got in a tugging match over 

an object, which eventually caused Janie to fall into the china 

closet in the living room. [McFadden] informed detectives that he 

then threw an object at Janie that struck her in her face. He then 

took a phone that was pulled out of the wall and pressed it against 

Janie’s face. [McFadden] stated: “I can’t even believe that I did 

this, but at the time I was so pissed off.”

Trial Court Opinion, 6/25/2020, at 2-3 (record citations and footnote omitted).

On December 19, 2017, McFadden pled guilty, pursuant to a negotiated 

plea agreement, to one count of third-degree murder at Docket No. 11256

(victim Janie Dawson) and one count of simple assault at Docket No. 11257 

(victim Brenda Dawson).1 That same day, the court imposed the negotiated 

sentence of 17 1⁄2 to 35 years’ imprisonment for the third-degree murder 

conviction and no further penalty as to the simple assault crime. McFadden 

did not file any post-sentence motions or a direct appeal.

On April 27, 2018, McFadden filed a timely, pro se Post Conviction Relief 

Act (“PCRA”) petition, asserting plea counsel was ineffective for failing to file 

a post-sentence motion and direct appeal despite McFadden requesting him 

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1 See 18 Pa.C.S.A. §§ 2502(c) and 2701(a), respectively.
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to do so. See 42 Pa.C.S.A. §§ 9541-9546. Counsel was appointed, who filed 

an amended PCRA petition, again alleging plea counsel was ineffective for 

failing to file a post-sentence motion and direct appeal. Notably, the amended 

petition listed both docket numbers, but a line was crossed through Docket 

No. 11257. The court effectively treated that “marking” as McFadden’s 

decision to not file a petition in that matter, and only addressed the request 

for relief in terms of Docket No. 11256.2

The court granted an evidentiary hearing, which was held on November 

26, 2019, and only addressed the issue of whether counsel was ineffective as 

to the failure to file a direct appeal, not the failure to file post-sentence 

motions. The PCRA court entered an order on December 5, 2019, in which it 

found that plea counsel was ineffective and reinstated McFadden’s direct 

appeal rights nunc pro tunc.3

Subsequently, McFadden filed a notice of appeal at both criminal dockets 

on December 10, 2019. On December 17, 2019, the PCRA court ordered 

McFadden to file a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b). McFadden filed a concise statement on January 

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2 Accordingly, as evidenced by the certified docket at Docket No. 11257, no 

filing of the pro se or amended PCRA petition was listed and the case went 

“dormant” until McFadden filed a notice of appeal.

3 This order was granted orally, and a docket entry was made.
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6, 2020. The court issued an opinion pursuant to Pa.R.A.P. 1925(a) on June 

25, 2020.

During this time, this Court issued a docketing statement for appellate 

counsel to complete. This Court received no correspondence from counsel and 

observed that counsel failed to comply with filing schedules in multiple cases. 

Therefore, this Court, by per curiam order, directed the appointment of new 

counsel sua sponte. The PCRA court complied with this order and appointed 

new appellate counsel to represent McFadden.

On March 1, 2020, counsel filed an application for remand with this 

Court, stating that in preparing the docketing statement, he observed that the 

notice of appeal filed by prior counsel listed two docket numbers, which was 

in contravention of Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018).

Briefly, we note the Walker Court adopted a prospective bright-line rule 

requiring separate notices of appeal to be filed from a single order resolving 

issues arising on more than one lower court docket. See id., at 976-977. The 

failure to comply with this rule generally “requires the appellate court to quash 

the appeal.” Id. at 977. Counsel requested the matter be remanded to permit 

him to file a notice of appeal that comports with Walker.

Meanwhile, this Court issued a rule to show cause why the appeal should 

not be quashed pursuant to Walker. In response, McFadden’s counsel largely 

reiterated his argument set forth in the application for remand. This Court 
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subsequently issued an order discharging the rule to show cause order and 

referring the matter to this panel.

Additionally, after considering the trial court dockets, notices of appeal, 

and counsel’s response to the Court’s rule to show cause, this Court, acting 

sua sponte, consolidated McFadden’s appeals without prejudice for the merits 

panel to quash one or both of these appeals upon review. See Order, 

4/22/2020; see also Pa.R.A.P. 513.

Several months after counsel filed an appellant’s brief for McFadden, 

counsel filed an application to withdraw as counsel based on a change in 

employment. See Application to Withdraw as Counsel, 12/1/2020. This Court 

granted the application and directed the trial court to appoint substitute 

counsel. The trial court subsequently appointed new counsel.

Furthermore, on March 8, 2021, this Court entered an order granting 

McFadden’s application for remand to file corrected notices of appeal. Newly 

appointed counsel for McFadden complied with Walker by filing separate 

amended notices of appeal at each docket number. The appeals are now 

presently before us.

As a prefatory matter that needs to be addressed, and as indicated

above, we note that McFadden only sought and received reinstatement of his 

direct appeal rights nunc pro tunc as to Docket No. 11256. As a result, his 

direct appeal rights in Docket No. 11257 were not restored nunc pro tunc.
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As his appeal at Docket No. 11257 is not nunc pro tunc, it is clearly 

untimely. A review of Docket No. 11257 reveals that the matter went dormant 

from the December 19, 2017 judgment of sentence to when McFadden filed 

his notice of appeal in December of 2019. Because McFadden did not file a 

post-sentence motion, he had until January 18, 2018, thirty days from the 

imposition of his sentence, to file a notice of appeal. See Pa.R.Crim.P. 

720(A)(3). McFadden’s notice of appeal was not docketed until December 10, 

2019, and consequently, was facially untimely. 

“The timeliness of an appeal and compliance with the statutory 

provisions granting the right to appeal implicate an appellate court’s 

jurisdiction and its competency to act.” Commonwealth v. Williams, 106 

A.3d 583, 587 (Pa. 2014). “Absent extraordinary circumstances, an appellate 

court lacks the power to enlarge or extend the time provided by statute for 

taking an appeal.” Id. “Thus, an appellant’s failure to appeal timely an order 

generally divests the appellate court of its jurisdiction to hear the appeal.” Id.

Additionally, this Court has no power to grant nunc pro tunc relief to an 

appellant outside the confines of the PCRA. See Commonwealth v. Eller,

807 A.2d 838, 845 (Pa. 2002). Accordingly, we are without jurisdiction to 

entertain the merits of McFadden’s appeal regarding Docket No. 11257, and 

quash his appeal at the related appellate docket, No. 3478 EDA 2019.

In his sole issue on appeal, McFadden complains that the court erred in 

accepting his guilty plea as knowing and voluntary in light of his extensive 
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mental illness history, which he was suffering from at the time of the plea. 

See Appellant’s Brief, at 8. McFadden states that the record establishes he 

suffers from profound and extensive schizophrenia, and “[t]hese 

circumstances simply cannot overcome the presumption against [his] waiver 

of his right to a trial.” Id., at 9. He concludes he must be awarded a new trial. 

See id.

“Settled Pennsylvania law makes clear that by entering a guilty plea, 

the defendant waives his right to challenge on direct appeal all nonjurisdictional defects except the legality of the sentence and the validity of the 

plea.” Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa. Super. 2013)

(citation omitted). “A defendant wishing to challenge the voluntariness of a 

guilty plea on direct appeal must either object during the plea colloquy or file 

a motion to withdraw the plea within ten days of sentencing.” Id., at 609-

610; see also Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). “Failure to employ either

measure results in waiver.” Lincoln, 72 A.3d at 610.

Here, the trial court found McFadden did not file a post-sentence motion 

and did not raise any claim regarding the voluntariness of his plea during the 

plea colloquy. See Trial Court Opinion, 6/25/2020, at 4. Moreover, the court 

opined, “While [McFadden] did seek reinstatement of his right to file a postsentence motion in his prior PCRA petition, that claim was denied by the PCRA 

court and not challenged on appeal. Accordingly, the issue was never raised 

in the trial court and is therefore waived.” Id. (footnote and citations omitted).
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We are in agreement with the trial court that McFadden waived his 

involuntary guilty plea argument. Where a PCRA court reinstates direct appeal 

rights nunc pro tunc, a defendant is not automatically entitled to 

reinstatement of his post-sentence motion rights nunc pro tunc as well. See 

Commonwealth v. Liston, 977 A.2d 1089, 1093-4 (Pa. 2009). 

As indicated above, McFadden pled in both his pro se and amended PCRA 

petitions that he had been deprived of the right to file post-sentence motions 

and direct appeal rights due to prior counsel’s ineffectiveness. However, the 

PCRA court did not restore McFadden’s right to file a post-sentence motion

nunc pro tunc. McFadden did not object at the PCRA evidentiary hearing to 

the court’s denial of nunc pro tunc relief as it related to post-sentence motions, 

and he did not set forth in his court-ordered Rule 1925(b) concise statement 

an issue concerning court error with respect to the matter. Furthermore, he 

does not now assert any argument addressing the court’s determination in his 

appellate brief. As such, McFadden may not obtain review of his invalid guilty 

plea claim on direct appeal nunc pro tunc because he has failed to properly 

preserve the argument. See Lincoln, 72 A.3d at 610. Accordingly, because

the issue is waived, we need not address it further.

Judgment of sentence at Docket No. 3477 EDA 2019 affirmed. Appeal 

at Docket No. 3478 EDA 2019 quashed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/13/21