J-S41038-19

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

PATRICK L. COOK,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 No. 427 MDA 2019

Appeal from the PCRA Order Entered February 21, 2019

in the Court of Common Pleas of Mifflin County

Criminal Division at No(s): CP-44-CR-0000517-2012

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

PATRICK L. COOK,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 No. 428 MDA 2019

Appeal from the PCRA Order Entered February 21, 2019

in the Court of Common Pleas of Mifflin County

Criminal Division at No(s): CP-44-CR-0000087-2013

 

BEFORE: LAZARUS, J., MURRAY, J. and STRASSBURGER, J.* 

MEMORANDUM BY STRASSBURGER, J.: FILED JULY 29, 2020

Patrick L. Cook (Appellant) pro se appeals from the February 21, 

2019 order dismissing his petition filed pursuant to the Post Conviction Relief 

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we affirm. 

A prior panel of this Court summarized the factual and procedural 

history as follows.
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On November 13, 2013, following a jury trial at which 

Appellant proceeded pro se, but with the assistance of standby 

counsel, Appellant was convicted of aggravated indecent assault, 

indecent assault, and corruption of minors. The offenses were 

perpetrated between November 2004 and September 2007, and 

involved two females who were less than thirteen years of age. 

Another offense occurred in July 2010, and involved one of the 

earlier victims.

Appellant appeared pro se at sentencing, but again had the 

benefit of standby counsel. The trial court imposed an 

aggregate sentence of eleven to twenty-two years [of] 

imprisonment based on the application of two five[-]to-[-]ten 

year mandatory minimum sentences for aggravated indecent 

assault on a child less than thirteen years old. Appellant, who 

had been determined to be a sexually violent predator, was also 

advised of the lifetime reporting requirements and what that 

entailed.

Following pronouncement of sentence, the court advised 

Appellant of his post-sentence and appeal rights. Specifically, 

Appellant was told that he had the right to file a written postsentence motion within ten days stating the particular relief 

sought. The court also advised Appellant that he had “the same 

right to assigned counsel as has existed through sentencing.” If 

he chose not to file a post-sentence motion, the court explained 

that he had the option to appeal to the Superior Court within 

thirty days. Appellant was provided with a written 

acknowledgement of post-sentence procedures. Appellant 

informed the trial court on the record that he wanted a transcript 

of the proceedings and he was advised to put that in writing 

either in his post-sentence motion or in his appeal.

Appellant did not file a [post-sentence motion or] direct 

appeal from [the] judgment of sentence. Rather, on February 

23, 2015, he filed a timely pro se PCRA petition. The court 

appointed counsel to represent him, and counsel filed an 

amended petition on May 7, 2015 on Appellant’s behalf. 

Appellant asserted that the court’s failure to conduct a waiverof-counsel colloquy pursuant to Pa.R.Crim.P. 121 and its denial 

of his request to permit standby counsel to assume 

representation during the trial resulted in the violation of his 

federal and state constitutional right[s] to counsel and so 
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undermined the truth[-]determining process that no reliable 

adjudication of guilt or innocence could have taken place. 

Finally, Appellant maintained that although his waiver of right to 

counsel was voluntary, it was neither knowing nor intelligent, 

and that his performance at trial was so ineffective as to deprive 

him of a defense. 

The court scheduled a hearing on the amended petition. 

By order dated July 31, 2015, Matthew M. McClenahen, Esquire, 

was granted leave to withdraw as counsel2 and on August 6, 

2015, attorney Steven P. Trialonas was appointed as counsel. 

Counsel filed a second amended PCRA petition on October 27, 

2015, in which he averred that prior counsel had presented the 

only issues of merit. Following an evidentiary hearing on 

December 11, 2015, and the submission of briefs, the PCRA 

court denied relief on February 4, 2016.

______

2 The trial court represents that Attorney McClenahen 

sought withdrawal due to threats made by Appellant.

Commonwealth v. Cook, 159 A.3d 58 (Pa. Super. 2016) (unpublished 

memorandum at 1-4) (footnote and citations omitted).

Upon appeal from denial of his PCRA petition, this Court denied 

Appellant relief on his counsel-related issues, both because 

Appellant waived the claims by failing to pursue them in a direct 

appeal, and because it found no merit to them in any 

event. However, [in light of Alleyne v. United States, 570 U.S. 

99 (2013),

1] this Court sua sponte vacated his judgment of 

sentence, which included two unconstitutional mandatory 

minimum sentences, and remanded for resentencing.

Pursuant to this Court’s directive, the trial court resentenced 

Appellant on February 2, 2017, without consideration of the 

mandatory minimum statutes, and imposed an aggregate 

 

1

In Alleyne, the United States Supreme Court held that any fact that

increases the mandatory minimum sentence for a crime is an element of 

that crime, and therefore must be submitted to the trier of fact and proven 

beyond a reasonable doubt.
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sentence of ten to 20 years of imprisonment. Appellant did not 

file a post-sentence motion. 

Commonwealth v. Cook, 175 A.3d 345, 347 (Pa. Super. 2017) (citations 

omitted). On appeal, this Court affirmed Appellant’s new judgment of 

sentence and granted counsel’s petition to withdraw. Id. at 351. Appellant 

did not file a petition for allowance of appeal with our Supreme Court.

On January 28, 2019, Appellant pro se filed the instant PCRA petition. 

Appellant asserted his petition was timely filed pursuant to 42 Pa.C.S. 

§ 9545(b)(1)(ii).2 PCRA Petition, 1/28/2019, at 7. Appellant did not state 

upon what newly-discovered fact he was relying, nor otherwise elaborate on 

how this exception had been satisfied. On January 30, 2019, the PCRA court 

issued notice of its intent to dismiss Appellant’s PCRA petition without a 

hearing, pursuant to Pa.R.Crim.P. 907, because it was untimely filed.3 The 

PCRA Court dismissed Appellant’s PCRA petition on February 21, 2019.

This appeal followed.4 On March 11, 2019, Appellant pro se filed two 

identical notices of appeal, each listing both docket numbers. The notices of 

 

2 This subsection provides that “the facts upon which the claim is predicated 

were unknown to the petitioner and could not have been ascertained by the 

exercise of due diligence[.]” 42 Pa.C.S. § 9545(b)(1)(ii). 

3 Appellant filed a response after the PCRA petition was dismissed. See 

Objection to Intent to Dismiss, 2/25/2019.

4 Both Appellant and the PCRA court complied with Pa.R.A.P. 1925. In lieu 

of an opinion, the PCRA court referred this Court to its January 30, 2019 

(Footnote Continued Next Page)
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appeal were docketed in this Court separately and subsequently consolidated 

by this Court sua sponte. On March 27, 2019, this Court sua sponte ordered 

the PCRA court to determine whether Appellant wished to proceed pro se on 

appeal. Following a hearing on April 16, 2019, the PCRA court found that 

Appellant knowingly, intelligently, and voluntarily waived his right to counsel 

and desired to proceed pro se. On April 30, 2019, this Court issued an order 

directing Appellant to show cause why his appeal should not be quashed 

pursuant to Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018).

5

 

Appellant did not file a response. On May 21, 2019, this Court discharged 

the rule to show cause and referred the issue to the merits panel for 

disposition. Thus, we must first address whether Appellant has complied 

with the dictates of Walker.

The Official Note to Rule 341, as amended in 2013, provides as 

follows.

Where ... one or more orders resolves [sic] issues arising on 

more than one docket or relating to more than one judgment, 

separate notices of appeal must be filed. Commonwealth v. 

C.M.K., 932 A.2d 111, 113 & n.3 (Pa. Super. 2007) (quashing 

appeal taken by single notice of appeal from order on remand for 

(Footnote Continued) _______________________

opinion, as well as Commonwealth v. Cook, 159 A.3d 58 (unpublished 

memorandum). Order, 4/16/2019. 

5

In Walker, our Supreme Court held that notices of appeal filed after June 

1, 2018 must be quashed if the appellant fails to file separate notices of 

appeal from a single order resolving issues arising on more than one lower 

court docket. 185 A.3d at 977. 
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consideration under Pa.R.Crim.P. 607 of two persons’ judgments 

of sentence).

Pa.R.A.P. 341, Note.

In Walker, our Supreme Court construed the abovelanguage as constituting “a bright-line mandatory instruction to 

practitioners to file separate notices of appeal.” Walker, 185 

A.3d at 976-77. Therefore, the Walker Court held that “the 

proper practice under Rule 341(a) is to file separate appeals 

from an order that resolves issues arising on more than one 

docket. The failure to do so requires the appellate court to quash 

the appeal.” Id. at 977.

Commonwealth v. Williams, 206 A.3d 573, 575 (Pa. Super. 2019). 

However, because intermediate appellate courts had seldom quashed 

appeals as a result of violating the Note to Rule 341, the Walker Court held 

that its ruling would only apply prospectively to notices of appeal filed after 

June 1, 2018. Thus,

the Walker Court directed that “in future cases Rule 341 will, 

in accordance with its Official Note, require that when a single 

order resolves issues arising on more than one lower court 

docket, separate notices of appeal must be filed. The failure to 

do so will result in quashal of the appeal.” Id. [at 977] 

(emphasis added).

Williams, 206 A.3d at 575-76. 

Appellant’s notices of appeal were filed after June 1, 2018, and 

therefore must comply with Rule 341 and Walker. Here, Appellant filed two 

notices of appeal from two lower court docket numbers, listing both docket 

numbers on each notice of appeal. The notice of appeal docketed at 427 

MDA 2019 is a photocopy of Appellant’s original notice of appeal, which was 
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docketed at 428 MDA 2019. Although one notice of appeal is a photocopy of 

the other, the two notices of appeal bear independent, original time stamps. 

While Appellant’s two consolidated appeals were pending, an en banc 

panel of this Court concluded that Walker does not require that a notice of 

appeal contain only one docket number. 

Importantly, we observe that Rule 341 and Walker make no 

mention of case numbers on a notice of appeal. To be sure, the

error in Walker was the filing of a single notice of appeal 

affecting multiple cases and several defendants. The bright-line 

rule set forth in Walker only required an appellant to file 

a “separate” notice of appeal for each lower court docket the 

appellant was challenging.

Here, it is indisputable that Johnson filed a separate notice of 

appeal for each of the four dockets below, because he italicized 

only one case number on each notice of appeal. 

Unlike [Commonwealth v. Creese, 216 A.3d 1142 (Pa. Super. 

2019)], the clerk of courts played no role in typing four separate 

notices of appeal and italicizing the individual docket numbers on 

Johnson’s behalf. Based on our review of Walker and Rule 341, 

Johnson filed separate notices that perfected four appeals from 

each of the four common pleas court dockets. The fact that the 

notices contained all four lower court numbers is of no 

consequence. Indeed, the Rules of Appellate Procedure are to be 

liberally construed to effectuate justice. Pa.R.A.P. 105(a); see 

also 1 Pa.C.S.[] § 1928(c). We should not invalidate an 

otherwise timely appeal based on the inclusion of multiple docket 

numbers, a practice that the Rules themselves do not expressly 

forbid.

By stating that each notice of appeal may contain only one 

number, Creese imposed upon appellants an additional 

requirement found in neither Walker nor Rule 341. Although our 

Supreme Court may adopt such a rule in the future, it did not do 

so in Walker. As such, in so far as Creese stated “a notice of 

appeal may contain only one docket number,” 216 A.3d at 1144 

(emphasis added), that pronouncement is overruled. Because 

Johnson appealed from four docket numbers and filed four 
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notices of appeal, Johson has complied with Walker. The fact 

that each notice of appeal listed all four docket numbers does 

not invalidate his notices of appeal, and we decline to quash his 

appeals.

Commonwealth v. Johnson, ___ A.3d ___, 2020 Pa. Super. 164 at *11-

12 (Pa. Super. 2020) (footnotes omitted).

Like Johnson, Appellant filed separate notices of appeal for each 

docket number. The facts that Appellant included both docket numbers on 

each notice of appeal and the underlying notices were photocopies of each 

other are of no consequence. Appellant filed the notices of appeal

independently, as evidenced by the distinct time stamps. Thus, Appellant 

has complied with Rule 341 and Walker by filing a notice of appeal for each 

docket number, and quashal is not required here. See Johnson, supra. 

We may now review Appellant’s consolidated appeal. Appellant 

presents two claims for this Court’s consideration. 

1. Did the original [PCRA] court err in denying the [PCRA] 

petition without a hearing by misapprehending the 

retrospective application in Commonwealth v. Hopkins, 

117 A.3d 247 ([Pa.] 2015)[,] when it’s [sic] paradigm, 

Alleyne[,] created a “substantive rule,” which “the 

Constitution requires state collateral review courts to give 

retroactive effect to that rule?”

2. Do standby counsel’s inappropriate actions constitute per se 

ineffectiveness, pursuant to U.S. v. Cronic, 466 U.S. 648 

(1984)[, ] when [Appellant] requested that counsel file a 

reconsideration of sentence, counsel assured said action 

would be completed, yet said reconsideration was never filed?

Appellant’s Brief at 4 (unnecessary capitalization omitted).
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Before reaching the merits of Appellant’s claims, we must determine

whether Appellant has timely filed his petition, as neither this Court nor the 

PCRA court has jurisdiction to address the merits of an untimely-filed 

petition. Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. Super. 

2011). 

Any PCRA petition, including second and subsequent petitions, must 

either (1) be filed within one year of the judgment of sentence becoming 

final, or (2) plead and prove a timeliness exception. 42 Pa.C.S. § 9545(b). 

Furthermore, the petition “shall be filed within one year of the date the claim 

could have been presented.” 42 Pa.C.S. § 9545(b)(2). 

“For purposes of [the PCRA], a judgment [of sentence] becomes final 

at the conclusion of direct review, including discretionary review in the 

Supreme Court of the United States and the Supreme Court of Pennsylvania, 

or at the expiration of time for seeking the review.” 42 Pa.C.S. 

§ 9545(b)(3). Pertinent to this appeal, 

a successful first PCRA petition does not “reset the clock” for the

calculation of the finality of the judgment of sentence for 

purposes of the PCRA where the relief granted in the first 

petition neither restored a petitioner’s direct appeal rights nor 

disturbed his conviction, but, rather, affected his sentence only.

Commonwealth v. McKeever, 947 A.2d 782, 785 (Pa. Super. 2008)

(citation omitted).

Here, Appellant was sentenced originally on February 28, 2014. 

Appellant did not file a post-sentence motion or notice of appeal. Therefore, 
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his judgment of sentence became final on March 31, 2014, following the 

expiration of time for filing a notice of appeal.6 Appellant timely filed a PCRA 

petition, which the PCRA court dismissed. On appeal, this Court denied 

Appellant’s counsel-based claims, but sua sponte vacated his sentence and 

remanded for resentencing pursuant to Alleyne. 

Thus, following Appellant’s first PCRA petition, his direct appeal rights 

were not reinstated, nor were his convictions disturbed. Rather, the relief he 

received from this Court on appeal from the dismissal of his PCRA conviction 

affected his sentence only. Therefore, his new judgment of sentence did not 

reset the clock “for the calculation of the finality of the judgment of sentence 

for purposes of the PCRA.” McKeever, 947 A.2d at 785. As such, 

Appellant’s January 28, 2019 petition constituted a serial petition, and 

Appellant had until March 31, 2015, to file timely a PCRA petition. 

Appellant’s January 28, 2019 PCRA petition was patently untimely, and 

Appellant was required to plead and prove an exception to the PCRA’s timebar.

In his petition, Appellant attempted to invoke the newly-discovered 

facts exception to the PCRA’s time-bar. To qualify for this exception, “a 

petitioner need only establish that the facts upon which the claim is based 

 

6 See 1 Pa.C.S. § 1908 (“Whenever the last day of any such period shall fall 

on Saturday or Sunday, ... such day shall be omitted from the 

computation.”).
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were unknown to him and could not have been ascertained by the exercise 

of due diligence.” Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 

2017) (some citations omitted). “Due diligence demands that the petitioner 

take reasonable steps to protect his own interests. A petitioner must explain 

why he could not have obtained the new fact(s) earlier with the exercise of 

due diligence.” Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. 

Super. 2010) (citations omitted). 

Appellant did not state in his petition what newly-discovered fact he 

was referencing, or when he learned of the alleged newly-discovered fact. 

Accordingly, Appellant has failed to establish this exception. Based on the 

foregoing, we conclude that Appellant’s PCRA petition was filed untimely, 

and he has not asserted a valid exception to the timeliness requirements. 

Thus, he is not entitled to relief. See Commonwealth v. Albrecht, 994 

A.2d 1091, 1095 (Pa. 2010) (affirming dismissal of PCRA petition without a 

hearing because the appellant failed to meet burden of establishing 

timeliness exception).

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 07/29/2020