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

COMMONWEALTH OF PENNSYLVANIA

v.

ODELL JOHNSON

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2823 EDA 2018 Appeal from the PCRA Order Entered September 21, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP

- 51

- CR

- 0009190

- 2010, CP

- 51

- CR

- 0009191

- 2010

BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J. *
DISSENTING MEMORANDUM BY PELLEGRINI, J.: FILED OCTOBER 17 , 2019
Respectfully, I dissent for reasons similar to those outlined in
Commonwealth v. Hackley , 1769 MDA 2018 , at 4 n.1 (September 23,
2019) (non

- precedential decision)

. 1

Odell John son (Johnson) filed a single notice of appeal captioned with
two docket numbers, CP

- 51

- CR

- 0009190 (9090) and CP

- 51

- CR

- 0009191
(9191). The sole order on review in this case is captioned with a single trial
court docket number, 9191, and 9090 is omitted

. It appears that the
prothonotary never entered a separate order bearing that latter docket

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.

1 If filed after May 1, 2019, Superior Court memorandum decisions may be cited for their persuasive value. See Pa.R.A.P. 126(b)

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number. This reasonably suggested that the two matters were treated as one
for filing and appellate purposes. In fact, after Johnson filed his notice of
appeal, the trial court entered an order pursuant to 1925(b) captioned with

both trial court docket numbers and requiring Johnson to file “a [single]
Concise Statement of Errors Complained of on Appeal, within twenty

- one days

of the date of this [single] ORDER[.]”

These facts mirror those in Hackley , where we found that defects in the
notice of appeal were not attributable to the appellant:

In Commonwealth v. Walker , 185 A. 3d 969 (Pa. 2018 ) , our Supreme Court held that under Pa.R.A.P. 341 , an appeal must be quashed if a defendant files only a single notice of appeal as to multiple docket numbers. Although Hackley filed one notice of appeal for two docket numbers, Walker is inapplicable here because the trial court and the Prothonotary treated the proceedings in a w ay that is tantamount to complete consolidation under one docket number.
Here, certified records on appeal were prepared for docket numbers 2017

- 3539 and 2017

- 3536, but only the latter includes an order of judgment of sentence. The order bears both docke t numbers, but advises Hackley of having 30 days “from this order” (in the singular), to appeal to the Superior Court. In so writing, the trial court essentially told Hackley that there was one order, and that he was entitled to only one appeal. This Cou rt held recently in Commonwealth v. Stansbury , 303 EDA 2019 *3 (Pa. Super. September 5, 2019), that a party may file a single notice of appeal in these circumstances because it results from a breakdown of court operations.

The case docket for 2017

- 3539 fu rther confirms the existence of at most a single order because it does not contain a judgment of sentence or any other document relating to the present appellate proceedings. Instead, the Prothonotary ’ s handwritten notes next to several entries on the cas e docket sheet direct the reader to “See 3536

- 17.” Pa.R.A.P. 301(b) provides that “Every order shall be set forth on a separate document,” but the trial court only setJ

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forth one document

– the order entered at 2017

- 3536, which bore the two docket numbers. This means there was no separate order entered at 2017

- 3539 for Hackley to appeal. See Pa.R.A.P. 301(a) (“no order of a court shall be appealable until it has been
en tered upon the appropriate docket in the lower court.”) (Emphasis added). Indeed, the inclusion of two docket numbers in the one order raises the question of whether any appealable order was entered at all

. See Pa.R.A.P. 301(b) (making entry of a separa te document for each order a “requisite” for appealability). Thus, it is clear that Hackley ’ s notice of appeal comports with Walker because the trial court was responsible for any of its potential defects.
Hackley , 1769 MDA 2018 , at 4 n.1

As in Hackley , Johnson ’s non - compliance with Walker resulted from
the prompt ing of the trial court and the p rothonotary, who treated the

consolidated proceedings as a single case. The trial court repeatedly advised

that Johnson needed to appeal from only a single order to preserve his
appellate issues. His appeal should not be quashed because of acting in
accordance with the trial court’s misstatements. Thus, I would attribute

Johnson’ s defective notice of appeal to a breakdown in court operations and

decline to find W

alker applicable

. 2

_________________ __________ ______ ____ _______

2 See also Commonwealth v. Stansbury , 303 EDA 2019 *3 (Pa. Super. September 5, 2019) (“ We have many times declined to quash an appeal when the defect resulted from an appellant ’ s acting in accordance with misinformation relayed to him by the trial court.”); Commonwealth v. Cox , 114 WDA 2019 , at 1

– 2 (Pa. Super. September 13, 2019) (non

- precedential decision) (same)

.