Opinion
159 WDA 2022 J-S36023-22
01-13-2023
COMMONWEALTH OF PENNSYLVANIA Appellant v. EMMANUEL TAYLOR Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered January 31, 2022 In the Court of Common Pleas of Blair County Criminal Division at No(s): CP-07-CR-0000917-2018
BEFORE: STABILE, J., KING, J., and COLINS, J. [*]
MEMORANDUM
KING, J.
Appellant, the Commonwealth of Pennsylvania, appeals from the order entered in the Blair County Court of Common Pleas, which precluded the Commonwealth from introducing evidence of the prior record of Appellee, Emmanuel Taylor. For the following reasons, we remand for the trial court to issue a supplemental opinion addressing those issues raised in the Commonwealth's untimely-filed concise statement of errors complained of on appeal.
The Commonwealth appealed pursuant to Pa.R.A.P. 311(d) and certified that the order substantially handicapped the prosecution. We note that the Commonwealth's certification alone is sufficient to establish our jurisdiction over the interlocutory order. See Commonwealth v. Moser, 999 A.2d 602, 605 (Pa.Super. 2010), appeal denied, 610 Pa. 595, 20 A.3d 485 (2011) (noting Superior Court may not inquire into grounds for Commonwealth's good faith certification).
The facts and procedural history of this case are as follows. Appellee was arrested in April 2018 and charged with various drug, theft, and firearms offenses. On October 6, 2020, the court severed the firearms charges (possession of a firearm prohibited and firearms not to be carried without a license) from the other charges. After the court granted several continuances for both the Commonwealth and Appellee, the case proceeded to trial on the firearms offenses on January 31, 2022.
On the morning of trial, Appellee objected to the Commonwealth's introduction of a copy of Appellee's prior record from Maryland because the documents were not self-authenticating under Pennsylvania Rule of Evidence 902. (N.T. Trial, 1/31/22, at 5-6). The trial court found that the record from Maryland was not self-authenticating and prohibited the Commonwealth from introducing it. (Id. at 18-19). The court also held that to use the National Criminal Information Center ("NCIC") report to prove Appellee's prior record, the Commonwealth would be required to produce a witness to confirm that the criminal convictions in Maryland belonged to Appellee. (Id. at 19). The court noted that the Commonwealth still had the opportunity to call such a witness. (Id.) The Commonwealth then notified the court that it planned to take an interlocutory appeal pursuant to Rule 311(d). Thereafter, the Commonwealth filed a notice of appeal.
Upon review of the notice of appeal, this Court issued a Rule to Show Cause why the notice of appeal should not be quashed because there was not a final order entered on the trial court docket concerning the court's ruling. The Commonwealth filed a response agreeing that there was no formal written order but arguing that the oral order was appealable where no party challenged the lack of a written order. In making this argument, the Commonwealth relied on this Court's decision in Commonwealth v. Segarra, 228 A.3d 943 (Pa.Super. 2020), appeal denied, __ Pa.__, 237 A.3d 975 (2020), which recognized that in some instances an oral order may be valid even if not filed or entered on the docket. Id. at 949. In Segarra, this Court held that where the trial court's order was unequivocal on the record, appeared on the docket, and no party challenged the lack of a written order, the order was valid. Here, the trial court's order precluding the Commonwealth's evidence was unequivocal on the record, and no party challenged the lack of a written order. Although the court's verbal ruling was not recorded on the docket, in the interests of judicial economy, we will procced with our analysis.
After receiving the notice of appeal, the trial court issued an order docketed February 16, 2022, directing the Commonwealth to file and serve a statement of errors complained of on appeal within 21 days of the date of the order. The order noted that any issue not included in the statement and timely filed and served pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) shall be deemed waived. (Order, 2/16/22). The docket entry for this order confirms that it was served upon the Blair County District Attorney's Office on February 16, 2022 via electronic service.
The notice of electronic filing satisfies the service requirements of Rules of Criminal Procedure 114(B) and 576(b). See Pa.R.Crim.P. 576.1(H)(1).
The Commonwealth filed its concise statement on March 21, 2022, which was beyond the requisite 21-day period. On April 4, 2022, the trial court issued its Rule 1925(a) opinion, in which it concluded that the concise statement was untimely filed, rendering the Commonwealth's issues waived on appeal.
Preliminarily, it is well settled that only issues properly raised in a timely Rule 1925(b) statement are preserved for appellate review. See Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005); Pa.R.A.P. 1925(b)(4)(vii) (stating that "[i]ssues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived"). "If there has been an untimely filing, this Court may decide the appeal on the merits if the trial court had adequate opportunity to prepare an opinion addressing the issues being raised on appeal." Commonwealth v. Burton, 973 A.2d 428, 433 (Pa.Super. 2009).
Notably, this Court has held that where "the Commonwealth has filed a late Rule 1925(b) statement, we will…allow for remand to the trial court or address the issues raised where the trial court had the first opportunity to address them." Commonwealth v. Grohowski, 980 A.2d 113, 115 (Pa.Super. 2009) (holding that "the rule enunciated in Burton, supra, permitting the late filing of a 1925(b) statement applies to the Commonwealth as well as to the represented criminal defendant"). See also Commonwealth v. Dodds, No. 2222 EDA 2018 (Pa.Super. filed Sept. 24, 2020) (unpublished memorandum), appeal denied, Pa., 253 A.3d 219 (2021) (applying Grohowski, supra and holding that "because this Court has permitted the late filing of Rule 1925(b) statements by counseled defendants, we must also permit the Commonwealth's late filing of its Rule 1925(b) statement").
See Pa.R.A.P. 126(b) (stating we may rely on unpublished decisions of this Court filed after May 1, 2019 for their persuasive value).
Under these circumstances, we remand to the trial court to address the issues raised in the Commonwealth's late Rule 1925(b) statement. See Burton, supra; Grohowski, supra. The trial court shall prepare its supplemental Rule 1925(a) opinion within 30 days of the filing date of this decision. The Commonwealth shall have 30 days after receipt of the supplemental Rule 1925(a) opinion to file a supplemental brief. Appellee shall have 30 days thereafter to file a responsive supplemental brief.
Case remanded with instructions. Panel jurisdiction is retained.
Judge Colins joins this memorandum.
Judge Stabile files a concurring memorandum.
CONCURRING MEMORANDUM
STABILE, J.
While I do not agree with the result reached by the Majority, I recognize that this Court is bound by its decision in Commonwealth v. Grohowski, 980 A.2d 113 (Pa. Super. 2009), and that a remand is required. Therefore, I concur in the result but write separately to underscore what I believe is a misinterpretation of Rule 1925(b) articulated by the majority in Grohowski.
In Grohowski, the majority noted that Pa.R.A.P. 1925(b) authorizes a remand if "an appellant" fails to file a Rule 1925(b) statement as ordered. The Court determined that "[t]here is no requirement set forth in the Rule that the appealing party must be the defendant in order to apply the Rule." Id. at 115. Refusing to read that requirement into the rule, the Court concluded:
Fairness and consistency require that each side be treated the same so that if we are to permit the late filing of the 1925(b) statement for one of the parties, i.e., the Defendant, we must permit the late filing of the 1925(b) statement for the other side, i.e., the Commonwealth.Id.
While the idea of treating each side "the same" may be laudable on its face, such treatment does not find support in the rule itself. As Judge Klein recognized in his dissent:
A look at the context of Rule 1925(c)(3), as well as the Note following the rule, shows that it is designed for appellants who are defendants, not the Commonwealth. While by hindsight it is true that the drafters should have been clearer in the language and this section should be revisited, there are often unintended consequences in drafting complex rules and we should not elevate textualism over the clear purpose of a statute or rule.
The section provides:
(c) Remand.-
(3) If an appellant in a criminal case was ordered to file a Statement and failed to do so, such that the appellate court is convinced that counsel has been per se ineffective, the appellate court should remand for the filing of a Statement nunc pro tunc and the preparation and filing of an opinion by the judge.
Thus the only time the appellate court is permitted to remand for a filing of a 1925(b) statement is if "the appellate court is convinced that counsel has been per se ineffective . . . ." The only lawyers that can be "per se" ineffective are criminal defense lawyers. "Ineffectiveness of counsel" is a term of art that relates to when a criminal defense lawyer has failed to act properly so that the defendant is deprived of "effective" counsel. It has never been applied to prosecutors.Id. at 116-17 (Klein, J., dissenting) (emphasis in original).
I note that minor revisions made to the Rule 1925(b) and the Note went into effect on April 1, 2022, after the Commonwealth's Rule 1925(b) statement was due in the instant case. However, those revisions would not impact Judge Klein's rationale for dissenting and would not alter my conclusion that Grohowski was wrongly decided.
Moreover, the idea of treating each side "the same" does not find support in the context of the Sixth Amendment, which provides, inter alia, that in all criminal prosecutions, an accused shall enjoy the right to effective assistance of counsel for his defense. U.S.C.A. Const. Amend. VI. That Sixth Amendment right does not extend to the Commonwealth, underscoring the difference between a criminal defendant and the Commonwealth when construing Rule 1925(b). While the failure of defense counsel to file a timely Rule 1925(b) statement is a violation of a defendant's Sixth Amendment right and constitutes ineffectiveness per se, thus warranting remand for filing of the statement nunc pro tunc, see Commonwealth v. Burton, 973 A.2d 428, 431-32 (Pa. Super. 2009) (en banc), the Sixth Amendment does not provide any such accommodation to the Commonwealth.
In light of the rule itself, and in view of Sixth Amendment considerations, I do not believe the Commonwealth is entitled to a remand under Rule 1925(c). However, as noted at the outset, I also recognize that this panel is bound Grohowski. See Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. 2006) (citations omitted) (a panel of this Court may not overrule a prior decision of this Court, absent intervening authority by our Supreme Court that calls into questions a previous decision of this Court). Therefore, I concur in the result.
[*] Retired Senior Judge assigned to the Superior Court.