Commonwealth v. Johnson

Decision Date09 July 2020
Docket NumberNo. 2047 EDA 2018,No. 2046 EDA 2018,No. 2045 EDA 2018,No. 1620 EDA 2018,1620 EDA 2018,2045 EDA 2018,2046 EDA 2018,2047 EDA 2018
Citation236 A.3d 1141
Parties COMMONWEALTH of Pennsylvania v. Jerome JOHNSON, Appellant. Commonwealth of Pennsylvania v. Jerome Johnson, Appellant. Commonwealth of Pennsylvania v. Jerome Johnson, Appellant. Commonwealth of Pennsylvania v. Jerome Johnson, Appellant.
CourtPennsylvania Superior Court

Michael N. Huff, Philadelphia, for appellant.

Lawrence J., Goode, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Jonathan M. Levy, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: PANELLA, P.J., STABILE, J., DUBOW, J., KUNSELMAN, J., NICHOLS, J., MURRAY, J., McLAUGHLIN, J., KING, J., and McCAFFERY, J.

OPINION BY KUNSELMAN, J.:

Jerome Johnson appeals from the judgment of sentence entered at four separate dockets after a consolidated jury trial. The jury found him guilty of second-degree murder, robbery, aggravated assault, and other related charges.

On June 5, 2018, Johnson timely filed four notices of appeal pursuant to the Supreme Court decision in Commonwealth v. Walker , 646 Pa. 456, 185 A.3d 969 (2018), which requires appellants to file a separate notice of appeal for each trial-court docket number they intend to appeal. However, Johnson listed all four of the docket numbers on all four notices. He also italicized one relevant docket number on each notice to identify which notice corresponded with each appealed case.

While his four consolidated appeals were pending, a three-judge panel of this Court filed a published opinion in Commonwealth v. Creese , 216 A.3d 1142 (Pa. Super. 2019). That panel construed Walker to mean that "we may not accept a notice of appeal listing multiple docket numbers, even if those notices are included in the records of each case." Creese , 216 A.3d at 1144. Instead, the panel concluded "a notice of appeal may contain only one docket number." Id. (emphasis added). The panel quashed the appeal. Neither party filed a petition for allowance of appeal with the Supreme Court, rendering Creese a final disposition and setting precedent by this Court.

Thereafter, the panel originally assigned to Johnson's case requested en banc certification to determine whether Johnson adequately preserved his appeal.1 We conclude that Johnson may proceed with his appeal, but we affirm his judgment of sentence.

I.

This Court granted en banc consideration of the following procedural issues:

1. Whether Johnson's inclusion of multiple court of common pleas docket numbers on his notice of appeal violates Pa.R.A.P. 341 and Walker ?
2. If so, whether such violation necessitates quashal by this Court?

Per Curiam Order, 10/4/19, at 3.

To answer these questions, we begin by examining the Walker decision. There, the trial judge granted suppression motions filed by four codefendants, and the Commonwealth filed a single notice of appeal. This Court quashed the appeal based on our interpretation of the Official Note to Appellate Rule 341. Walker, 2016 WL 5845208 (Pa. Super. 2016). That Note provides in relevant part as follows:

Where, however, one or more orders resolves 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 a single notice of appeal from order on remand for consideration under Pa.R.Crim.P. 607 of two persons’ judgment of sentence).

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

The Commonwealth argued that factual circumstances of Walker's case were distinguishable from the case cited in the note to Rule 341, C.M.K. , because C.M.K. involved a single appeal filed by two criminal defendants, based upon two judgments of sentence, for convictions on different charges with different sentences. Under the circumstances of C.M.K. , this Court held quashal was necessary, because the two codefendants, who were husband and wife, each presented different issues. We stated:

From a purely logical standpoint, the problems inherent in criminal codefendants filing a joint appeal are readily apparent. In most cases, they would not have been convicted for identical actions. If, then, these codefendants raised a challenge to the sufficiency of the evidence, as [a]ppellants here do, the evidence under evaluation would be different for each defendant, necessitating individualized arguments and analyses. The same would be true for challenges to different sentences.
Some appellate issues may coincide; for instance, in this case, [a]ppellants challenge ex parte contact between the prosecutor and a juror. The potential for prejudice from such contact would appear to be the same for each defendant. However, even this claim may not be treated by this Court in exactly the same fashion. Appellants were individually represented at trial; accordingly, the issue may have been preserved at trial by one defendant's counsel and not the other's.2

C.M.K. , 932 A.2d at 113 (footnote omitted).

In Walker , the Commonwealth argued against quashal, because, unlike C.M.K. , the appeal stemmed from a single suppression order that applied equally to all of the appellees, with a single set of findings of fact and conclusions of law, relating to a single vehicle stop.

This Court disagreed, indicating that although the specific problems produced by a single order differed in C.M.K. , the Commonwealth's single appeal in Walker generated a different set of issues:

For instance, affirming (or reversing) the suppression order may affect each defendant differently, depending on what evidence, if any, is still available for use by the Commonwealth at trial. Indeed, the results of such an appeal may ultimately affect circumstances which impact whether the codefendants should be jointly tried at all. Moreover, the Fourth Amendment and/or privacy rights of [a]ppellees, as well as their standing to challenge the lawfulness of a search and/or seizure, could also differ between codefendants. Accordingly, although we agree that the specific concerns discussed in C.M.K. cannot arise in a Commonwealth's appeal from a suppression order affecting multiple codefendants, sufficiently similar or analogous hazards exist to justify the rule requiring the Commonwealth to file separate appeals with respect to each [a]ppellee/codefendant.

Walker , 2016 WL 5845208 at *3 (Pa. Super. 2016). For these reasons, this Court held that the Commonwealth was required to file four separate notices of appeal, and that we lacked "the authority to manufacture a remedy for the Commonwealth, even if we were inclined to do so." Id. As a result, we quashed the Commonwealth's appeal. Id. at *4.

The Supreme Court granted further review and agreed with our analysis. Walker , 185 A.3d at 976. The High Court also explained that the Commonwealth's filing of a single notice of appeal "effectively and improperly consolidated the appeals in the [criminal defendants’] four cases ... without either the approval of the Superior Court or the agreement of the [parties]." Id. at 976 (citing Pa.R.A.P. 513 ).3 The Supreme Court expressed concern that a failure to require separate notices of appeal "will often result in unintended consequences, as the appellate court, in deciding the single appeal must ‘go behind’ the notice of appeal to determine if the same facts and issues apply to all of the [criminal defendants.]" Id. at 977.

Applying the rules of statutory construction, the High Court found that the 2013 amendment to the Official Comment of Rule 341(a) required a bright-line rule: "Where ... one or more orders resolves issues arising on more than one docket or relating to more than one judgment, separate notices of appeal must be filed." Id. "Failure to do so, requires the appellate court to quash the appeal." Id. at 977.

However, because its interpretation of the Rule 341 was based on the 2013 amendment to the Official Note which was contrary to decades of case law from our appellate courts, the Supreme Court declined to quash Walker's appeal and made the rule prospective only, i.e. , to cases filed after June 1, 2018. Id. at 977.

Notably, Walker did not specifically address the situation in this case, where one defendant appeals from one judgment of sentence, entered following one trial on multiple criminal dockets. In this circumstance, the problems identified in C.M.K. and Walker involving multiple defendants do not exist. Nonetheless, where a single defendant challenges his sentence relating to "more than one docket," Walker requires that defendant to file separate notices of appeal. Id. at 976.

Six months after Walker , on December 20, 2018, Lawrence Creese appealed from the PCRA court's order, denying him post-conviction relief at four separate docket numbers. Creese , 216 A.3d at 1143. Creese filed a single notice of appeal listing all four docket numbers. Id.

This Court entered a rule to show cause for Creese to explain why we should not quash the appeal based on Walker , 646 Pa. 456, 185 A.3d. 969 (2018). Id. Creese filed a response in which he admitted to filing only one notice that included all four docket numbers and conceded that "counsel was previously unaware of the rule in [ Walker ]." Id. However, he claimed that no party would be prejudiced by "this technical error." Id. In a per curiam order, this Court referred the Walker issue to the merits panel.

Under these facts, the majority of the panel concluded that Creese did not satisfy Walker .4 Id. at 1144. The Court noted that, because Creese's counsel was previously unaware of the Walker rule, "it appear[ed] that one notice of appeal was simply photocopied and placed in each record, conceivably by the clerk of courts. It [was] impossible to be sure whether that occurred, or whether counsel himself filed four copies of the notice of appeal." Id. at 1144, n.1.5 The Creese majority then read Walker "as instructing that we may not accept a notice of appeal listing multiple docket numbers,...

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