Commonwealth v. Young

• Decision Date: 03 August 2022
• Docket Number: 2088 MDA 2018, No. 2089 MDA 2018
• Citation: 280 A.3d 1049
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Brendan Patrick YOUNG Commonwealth of Pennsylvania, Appellant v. Daniel Casey
• Court: Pennsylvania Superior Court

280 A.3d 1049

COMMONWEALTH of Pennsylvania, Appellant
v.
Brendan Patrick YOUNG

Commonwealth of Pennsylvania, Appellant
v.
Daniel Casey

No. 2088 MDA 2018
No. 2089 MDA 2018

Superior Court of Pennsylvania.

Submitted September 30, 2019
Filed August 3, 2022

Hugh J. Burns Jr., Office of the Attorney General, Philadelphia, for Commonwealth, appellant.

Joseph E. McGettigan III, Berwyn, for Young, appellee.

John F. X. Reilly, Media, for Young, appellee.

Steven P. Trialonas, State College, for Casey, appellee.

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

OPINION BY BOWES, J.:

280 A.3d 1051

The instant appeals are before us on remand from our Supreme Court. We have been directed to consider whether the Commonwealth should be permitted pursuant to Pa.R.A.P. 902 to correct its failure to file separate notices of appeal at each of the dockets affected by the trial court's November 21, 2018 order which, inter alia, granted in part the suppression motions filed by Brendan Patrick Young and Daniel Casey (collectively "Appellees"). See Commonwealth v. Young , ––– Pa. ––––, 265 A.3d 462, 477-78 (2021) (" Young "). Following consideration of the competing principles and interests, we remand for the Commonwealth to correct its procedural error, while retaining jurisdiction to subsequently either address the merits of the appeals or quash them if the Commonwealth fails to comply.

We begin with a recap of the litigation among these parties. The Commonwealth filed six separate criminal informations, three for each Appellee, charging them with various offenses related to alleged hazing activities in 2016 and 2017, including the death of Timothy J. Piazza at the Beta Theta Pi fraternity at the Pennsylvania State University on February 2, 2017. Each Appellee filed an omnibus pre-trial motion at all three docket numbers assigned to his respective cases. The motions included the contention that cell phone evidence must be suppressed because it was obtained pursuant to overbroad search warrants in violation of the Fourth Amendment to the United States Constitution and Article I, § 8 of the Pennsylvania Constitution. Appellees also challenged the constitutionality of the since-repealed anti-hazing statute that formed the basis for some of the charges against them.¹

The trial court, by a single opinion and order captioned with all six docket numbers for both Appellees, upheld the constitutionality of the anti-hazing law, but granted the motions to suppress the cell phone evidence. The trial court subsequently amended its order in accordance with 42 Pa.C.S. § 702(b) to indicate that the constitutionality of the anti-hazing law presented a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter.

Both sides sought interlocutory appellate review. Specifically, the Commonwealth filed two notices of appeal, one for each Appellee listing the three docket numbers pertinent to him, from the suppression ruling pursuant to Pa.R.A.P. 311(d) (permitting the Commonwealth to take an interlocutory appeal as of right in criminal cases from an order which the Commonwealth certifies will terminate or substantially handicap the prosecution). Appellees filed a single joint petition, listing all six docket numbers, seeking permission to appeal the trial court's amended order in accordance with Pa.R.A.P. 312 and Pa.R.A.P. 1311. See Pa.R.A.P. 312 (providing that interlocutory appeals may be taken by permission pursuant to Chapter 13 of the Rules of Appellate Procedure); Pa.R.A.P. 1311(b) (governing the time and manner for petitioning for permission to appeal).

Both sides were unsuccessful in their bids for interlocutory review based upon the mandate of our Supreme Court's decision in Commonwealth v. Walker , 646 Pa. 456, 185 A.3d 969 (2018). In Walker , the

280 A.3d 1052

Commonwealth sought to pursue an interlocutory appeal as of right pursuant to Pa.R.A.P. 311(d) as to an order granting suppression motions filed by four separate defendants who were arrested as a result of the same vehicle stop. The Commonwealth filed a single notice of appeal which listed the four docket numbers at issue. This Court quashed the appeals on the basis that the Official Note to Pa.R.A.P. 341, which governs appeals from final orders, states that where one order resolves issues arising on more than one docket, separate notices of appeals must be filed.

Our Supreme Court agreed that Rule 341 ’s Official Note mandated the filing of separate notices of appeal at each docket number, but it reversed our quashal of the appeal in Walker because the Note's mandate contradicted "decades of case law from this Court and the intermediate appellate courts that, while disapproving of the practice of failing to file multiple appeals, seldom quashed appeals as a result." Walker , supra at 977. However, the Court stated a bright-line rule that "in future cases Rule 341(a) 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 . (footnote omitted). The Walker Court further directed the amendment of the Official Note to Rule 341 and suggested amendment of Rule 341 itself, as well as the portion of Chapter 3 of the Rules of Appellate Procedure ("Orders From Which Appeals May Be Taken") governing interlocutory appeals, namely Rule 311 ("Interlocutory Appeals as of Right"), Rule 312 ("Interlocutory Appeals by Permission"), and Rule 313 ("Collateral Orders"), "to state explicitly the requirement that separate notices of appeal must be filed when a single order resolves issues arising on more than one lower court docket." Id .

This Court applied Walker ’s prospective ruling to Appellees’ joint petition to appeal by permission, resulting in its denial on August 28, 2019. The motions panel entertaining Appellees’ request observed that the Walker ruling applied equally to appeals taken pursuant to Rules 311, 312, and 341. See Commonwealth v. Casey , 218 A.3d 429, 431 (Pa. Super. 2019) (" Casey "). Since Walker controlled, we held that "[Appellees’] failure to file a separate appeal petition for each docket number [wa]s fatal to their petition for permission to appeal" pursuant to Rule 312. Id . Our Supreme Court declined to review this Court's decision. See Commonwealth v. Casey , 10 MM 2020 (Pa. June 2, 2020).

The instant panel likewise determined that this Court was unable to address the substance of the Commonwealth's two appeals as of right in the case sub judice based upon Walker violations, and therefore quashed the appeals by non-precedential decisions filed on October 28, 2020 (2089 MDA 2019), and November 2, 2020 (2088 MDA 2019). Although the Commonwealth had requested leave "to amend the notice of appeal" to comply with Walker , see Response to Rule to Show Cause, 3/4/19, at 7, we failed to discern how the belated amendment of the single notice it filed could remedy its failure to timely file separate notices of appeal at the other two docket numbers. We therefore quashed the appeals.

Our Supreme Court opted to grant review of our quashal of the Commonwealth's appeals and partially overruled Walker by holding that failure to file separate notices of appeal at each docket number implicated by the appealed-from order did not necessarily require quashal. See Young , supra at 476. Rather, filing a single notice of appeal for all implicated docket numbers was a non-jurisdictional defect

280 A.3d 1053

that can, where appropriate, be remedied pursuant to Pa.R.A.P. 902.² Rule 902 provides that a procedural omission other than the timely filing of a notice of appeal does not impact the validity of the appeal, "but it is subject to such action as the appellate court deems appropriate, which may include, but is not limited to, remand of the matter to the lower court so that the omitted procedural step may be taken." Id . at 457 (emphasis omitted) (quoting Pa.R.A.P. 902 ).

On this point, the Young Court quoted with approval the concurring opinion in Commonwealth v. Larkin , 235 A.3d 350 (Pa. Super. 2020) (en banc ):

So long as a litigant timely perfects an appeal, Rule 902 allows an appellate court to take any appropriate action, including remand, to allow a party to correct any procedural misstep in a notice of appeal,

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