J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellant

v.

BRENDAN PATRICK YOUNG :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

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

BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY BOWES, J.: FILED NOVEMBER 02, 2020

The Commonwealth of Pennsylvania appeals from the November 14,

2018 order suppressing cell phone evidence at three docket numbers. After

careful review, we are compelled to quash the appeal pursuant to

Commonwealth v. Walker

, 185 A.3d 969 (Pa. 2018) and Pa.R.A.P. 341(a).

Briefly, the facts underlying this appeal are as follows. Brendan Patrick

Young was charged in three separate criminal informations with multiple

counts of reckles sly endangering another person (“REAP”), hazing, alcohol

related violations, and conspiracy, arising out of the February 2, 2017 death

of Timothy J. Piazza at the Beta Theta Pi fraternity at the Pennsylvania StateJ

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University. 1 Young filed an omnibus pre

- trial motion bearing all three docket

numbers assigned to the cases against him, which included a motion to

suppress cell phone evidence based upon the Fourth Amendment to the United

States Constitution and Article I § 8 of the Pennsyl vania Constitution

.

Following a hearing, t he trial court concluded that the search warrant was

overbroad, and suppressed the evidence by order of November 21, 2018

.

R econsideration was denied on December 3, 2018.

The trial court’s November 21, 2018 or der granting suppression

contained all three docket numbers assigned to the cases against Young. The

Commonwealth filed a single timely notice of appeal from the November 21,

2018 order granting the suppression motion

, upon which it listed three docket

nu mbers. After the Commonwealth complied with the trial court’s Pa.R.A.P.

1925(b) order, the trial court issued its Rule 1925(a) opinion.

On February 28, 2019, this Court issued a per curiam order directing

the Commonwealth to show cause why the appeal sh ould not be quashed in

light of Pa.R.A.P. 341, as interpreted in Walker

, holding that when “one or

more orders resolves issues arising on more than one docket or relating to

more than one judgment, separate notices of appeals must be filed.” Per

_________________ __________ ______ ____ _______

1 By order dated October 25, 2018, the three dockets involving Young were

consolidated for trial with the three dockets involving Daniel Casey, and

severed from dockets involving four other defendants. The Commonwealth

has also appealed the order granting suppression with regard to Casey, and

that appeal is before this panel at No. 2089 MDA 2018. Both Commonwealth

appeals involve the identical W alker issue and underlying suppression issue.J

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Curiam Or der, 2/28/19, at 1. The Commonwealth filed a timely response, and

we discharged the rule to show cause

. The issue was referred to the merits

panel for disposition. See Per Curiam Order, 4/1/19, at 1.

By order dated October 8, 2019, this Court stayed the instant appeal

pending en banc consideration of Commonwealth v. Jerome Johnson

,

___A.3d ___, 2020 PA Super 164 (Pa.Super. July 9, 2020) ( en banc ),

addressing the issue of whether the inclusion of multip le docket numbers on

separate notices of appeal mandated quashal under Walker , as construed in

Commonwealth v. Creese , 216 A.3d 1142 (Pa.Super. 2019). 2 The matter

is ripe for our review.

The Commonwealth presents one issue for our consideration:

Whether the lower court’s grant of suppression was in error where

the court (1) failed to determine that the specific grounds on which

relief was granted was waived, (2) failed to find that evidence

derived from text message conversations is not suppressible

agai nst the parties to the conversation [,] and (3) granted

suppression based on facts not supported by the record and by

improperly applying the law to the facts?.

Commonwealth’s brief at 4 (unnecessary capitalization omitted)

.

_________________ __________ ______ ____ _______

2 In Commonwealth v. Jerome Johnson , ___A.3d___, 2020 PA Super 164

(Pa.Super. July 9, 2020) ( en banc ) (overruling in part Commonwealth v.

Creese , 216 A.3d 1142 (Pa.Super. 2019)) , this Court held that including

multiple docket numbers on separately filed notices of appeal was not grounds

for quashal under Walker . Herein, since the Commonwealth filed one notice

of appeal from an order entered at three docket numbers, Johnson does

implicate our review.J

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Before we may address the m erits of the suppression issue, we must

first determine whether the Commonwealth filed separate notices of appeal at

each docket number in conformity with Walker , or advanced reasons

excusing its failure to do so. At each of the three docket numbers, t he certified

record contain s a notice of appeal bearing all three docket numbers

,

suggesting that separate notices of appeal were filed at each docket number

.

However, closer examination revealed that the notices of appeal at Nos. CP

14

- CR

- 0001389

- 2017 and C P

- 14

- CR

- 0001540

- 2018 are photocopies of one

original notice of appeal filed at No. CP

- 14

- CR

- 0000784

- 2018. 3 This is

consistent with the Commonwealth’s candid admission in its response to the

rule to show cause that it styled the notice of appeal as a singl e document

referencing the three docket numbers at which it sought to appeal. 4 See

_________________ __________ ______ ____ _______

3 The p rocedure herein appears to mirror that in Commonwealth v. Creese

, 216 A.3d 1142 (Pa.Super. 2019)

, where the filing clerk accepted one notice

of appeal for multiple dockets, time

- stamped and photocopied it, and filed a

copy in each of the related dockets. The time stamp on the photocopies is

located in the same place and reflects the identical time of filing as the original

notice

. Cf. Commonwealth v. Rebecca Johnson , ___A.3d___, 2020 PA

Super 173 (Pa.Super. July 23, 2020) ( en banc ) (crediting the appellan t’s

representation that, although the notices of appeal contained all three docket

numbers, she filed a separate notice of appeal at each docket number because

the time stamp on each notice was in a different location and the time of filing

was unique on t wo of the three notices). Herein, the copies contain yellow

highlighting specifying in which docket they were filed. Similar highlighting

appears on other copies contained in the certified records of those docket

numbers

. It also appears that one fee wa s paid for the appeal involving three

docket numbers.

4 This Court appreciates the Commonwealth’s candor as it removes any

uncertainty surrounding the origin of the copies.J

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Commonwealth’s Response to Directive to Show Cause Why the Appeal Should

Not be Quashed, 3/4/19, at 4.

The Commonwealth argue s

, however, that Pa.R.A.P. 341(a) did not

app ly on the facts herein as there is “only one docket

, even though the trial

court assigned different docket numbers .” Id

. at 5 (emphasis in original).

The Commonwealth points out that the single notice of appeal contained all

three docket numbers and “encompassed the same order, for the same case,

for the same defendant, and for the same issue under the same facts.” Id

.

at 4. It maintains that Walker is distinguishable as it involved one notice of

appeal from a single order that was filed in four cases with four different

defendants. In addition, t he Commonwealth assert s that

, in this instance,

“[t]he charges under the three docket numbers have been treated identically

as the single case they represented throughout all proceedings in the lower

court.” Id

. at 4

.

In sum, the Commonwealth maintains “ Walker used the word ‘docket’

to mean ‘record of an individual case,’ not ‘docket number.’” Id

. at 6.

Requiring a separate notice of appeal at each docket number, the

Commonwealth contends, would “go a step beyond the holding in Walker and

elevate form over substance” in contravention of Pa.R.A.P. 105(a) (providing

that the rules are to be liberally construed to effectuate their purpose). Id

.

at 6. Moreover, the Commonwealth notes that Young did not raise an

objection, and asks, if necessary, that it be permitted to rectify its error byJ

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filing notices of appeal at each docket number to correct what it characterizes

as a “formatting error.” Id

. at 7.

In Walker

, our Supreme Court adopted the bright

- line rule in the

Official Note to Rule 341 mandating that practitioners file separate notices of

appeal in all future cases “ when a single order resolves issues arising on more

than one lower court docket.” Id . at 470. Failure to comply “will result in

quashal of the appeal.” 5 Id

.

We are unpersuaded by the Commonwealth’s attempt to distinguish a

“docket” from a “docket num ber” for purposes of Walker

. The Walker Court

made no such distinction. See Walker

, supra at 464 (defining the situation

before it as “a single notice of appeal

. . . filed in response to a single order

that decides four motions to suppress in four cases with four different docket

numbers”). Furthermore, post

- Walker decisions do not limit its application

to cases involving multiple defendants. Moreover, the cases filed against

Young at three docket numbers herein were not treated as a single case; each

remained distinct throughout proceedings in the trial court. Before the court

severed the cases involving Young and Casey, the trial court expressly

manda ted that every document involving any of the defendants be filed at

_________________ __________ ______ ____ _______

5 The Walker Court applied its holding prospectively to appeals filed after

June 1, 2018.J

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each docket number. 6 See Order, 10/18/18, at 5 (listing Young’s individual

docket numbers, together with those of other defendants consolidated for

trial, and directing “[a]ll filings to any of the above listed dockets shall be filed

to each and every docket listed above”).

T he order in question here resolved suppression issues “arising on more

than one docket.” The fact that Young is the same defendant at three docket

numbers and the suppression issue at each number is identical does not

obviate the requirement that a party file a separate notice of appeal at each

docket number. As o ur High Court reasoned in Walker

, by f iling a single

notice of appeal from an order arising on more than one docket, “the

Commonwealth effectively, and improperly, consolidated the appeals in the

[a]ppellees’ four cases for argument and joint resolution, without either the

approval of the Superior Court or the agreement of the [a]ppellees.” Id

. T he

_________________ __________ ______ ____ _______

6 Such was not the case in Always Busy Consulting, LLC v. Babford & Co.

, 221 A.3d 1235 (Pa.Super. 2019) (non

- precedential opinion), allocatur granted

2020 Pa. LEXIS 3037, *1

. In that case, the trial court ordered the

consolidation of two docke ts and designated docket No. GD

- 18

- 5205 as the

lead docket for filing purposes

. Following judgment, the appellant filed several

notices of appeal at the lead docket listing both docket numbers. Despite the

nature of the consolidation, this Court quashed the appeal as violative of

Walker . The Supreme Court granted allowance of appeal on the issue: “Did

the Superior Court err in quashing Petitioner’s appeal pursuant to

Commonwealth v. Walker , 646 Pa. 456, 185 A.3d 969 (Pa. 2018), on the

basis that Petitioner failed to file a notice of appeal at a separate docket

n umber in a consolidate d case, when Petitioner filed separate notices of appeal

at the consolidated docket number, as directed and required by the trial

court? ” That appeal is currently pending.J

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Walker Court relied upon Rule 513

, which

, by its terms, provides that

consolidation is a determination for “the appellate court, at its discretion,”

absent a stipulation by all parties to the several appeals. Pa.R.A.P. 513. 7

Here, as in Walker

, by filing only one notice of appeal bearing three

docket numbers at one docket number, the Commonwealth effectively and

improperly consolidated three appeals for joint resolution without this Court’s

approval or Young’s agreement

. Additionally, the Comm onwealth fails to

articulate how amendment can remedy its failure to timely file separate

notice s of appeal at the other two docket numbers at issue

. Accordingly, w e

are constrained to find that the Commonwealth’s failure to file a separate

notice of appeal at each of the three docket numbers at issue violate s Walker

and Rule 341, and is fatal to this appeal.

Appeal quashed. Jurisdiction relinquished.

_________________ __________ ______ ____ _______

7 Rule 513, titled “Consolidation of Multiple Appeals” provides:

Where there is more than one appeal from the same order, or

where the same question is involved in two or more appeals in

different cases, the appellate court may, in its discretion, order

them to be argued together in all particulars as if but a single

appeal. Appeals may be consolidated by stipulation of the parties

to the several appeals.

Pa.R.A.P. 513.J

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/02/2020