J-S11011-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TONY BURTON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 832 EDA 2018

Appeal from the PCRA Order Entered March 14, 2018

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0005522-2012

BEFORE: SHOGAN, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.: FILED JUNE 07, 2019

Appellant, Tony Burton, appeals from the order denying his petition filed 

pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541-9546. 

For the following reasons, we remand for the service of a time-stamped copy 

of the Pa.R.A.P. 1925(b) statement upon the PCRA judge and the filing of a 

PCRA court opinion pursuant to Pa.R.A.P. 1925(a).

The PCRA court summarized the procedural history of this case as 

follows:

On June 27, 2014, this [c]ourt sentenced [Appellant] to five 

to ten years incarceration for possession of a firearm by a 

prohibited person and a consecutive one to two years 

incarceration for carrying a firearm without a license. On 

September 29, 2014, this [c]ourt denied his Motion to Reconsider 

his sentence and his Suppression Motion. [Appellant] appealed 

and the Superior Court affirmed on January 12, 2016. 

Commonwealth v. Burton, 136 A.3d 1029 (Pa. Super. 

2016)(table). On October 2016, the Supreme Court denied his 
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Petition for Allowance of Appeal. Commonwealth v. Burton, 160 

A.3d 763 (Pa. 2016) (table).

[Appellant] filed a pro se PCRA Petition on December 22, 

2016. On July 18, 2017, appointed counsel filed an Amended 

Petition. This [c]ourt determined that the issues raised in the 

Amended Petition were without merit. Pursuant to Pennsylvania 

Rule of Criminal Procedure Rule 907, a letter was sent to 

[Appellant] via certified mail to advise [Appellant] that his request 

for post-conviction relief would be denied/dismissed without 

further proceedings within 20 days. The Amended Petition was 

denied on March 14, 2018.

On March 22, 2018, this [c]ourt received Notice that 

[Appellant] appealed to the Superior Court of Pennsylvania from 

the Order entered on March 14, 2018. On March 27, 2018, this 

[c]ourt issued an Order requiring [Appellant] to file and provide 

the undersigned with a time stamped copy of a Statement of 

Matters Complained of on Appeal no later than 21 days from the 

entry of the Order pursuant to Rule 1925(b) of the Pennsylvania 

Rules of Appellate Procedure. To date, this [c]ourt has not 

received [Appellant’s] Statement of Matters Complained of on 

Appeal.

PCRA Court Amended Opinion, 6/15/18, at 1-2 (emphasis added). The PCRA 

court then stated that “[Appellant’s] failure to timely file and serve his 1925(b) 

statement has resulted in the waiver of all issues on appeal.” Id. at 2.

Appellant now presents the following issues for our review:

I. Whether the [c]ourt erred in ruling Appellant’s claim is waived 

for failure to timely file a 1925(b) Statement of Matters 

Complained on Appeal.

II. Whether the court erred in not granting relief on the PCRA 

petition alleging Trial/Appellate Counsel was ineffective.

Appellant’s Brief at 8.

When reviewing the propriety of an order denying PCRA relief, we 

consider the record “in the light most favorable to the prevailing party at the 
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PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super. 

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) 

(en banc)). This Court is limited to determining whether the evidence of 

record supports the conclusions of the PCRA court and whether the ruling is 

free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. 

Super. 2012). We grant great deference to the PCRA court’s findings that are 

supported in the record and will not disturb them unless they have no support 

in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. 

Super. 2014).

We first consider the ramifications of the PCRA court’s allegations that 

Appellant failed to file a Pa.R.A.P. 1925(b) statement. We are mindful that, 

in Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998), our Supreme 

Court held that if an appellant is directed to file a concise statement of matters 

to be raised on appeal pursuant to Pa.R.A.P. 1925(b), any issues not raised in 

that statement are waived. In Commonwealth v. Butler, 812 A.2d 631 (Pa. 

2002), the Court further expanded on the Lord holding, stating that waiver 

automatically applies when a Pa.R.A.P. 1925(b) statement is not filed or if an 

issue is not included in the Pa.R.A.P. 1925(b) statement, even when the 

question of waiver has not been raised by the other party, and even when the 

trial court has chosen to overlook the failure by addressing the issues it 

assumed would be raised. However, our Supreme Court amended Pa.R.A.P. 
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1925 and added a procedure for appellate courts to rectify a criminal 

appellant’s failure to file a Pa.R.A.P. 1925(b) statement.

The pertinent part of the amended rule is found in subsection (c)(3), 

and provides as follows:

(c) Remand.–

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(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 shall remand for the filing of a Statement nunc pro tunc and 

for the preparation and filing of an opinion by the judge.

Pa.R.A.P. 1925(c)(3). In addition, the Explanatory Note to subsection (c)(3) 

provides the following guidance:

This paragraph allows an appellate court to remand in criminal 

cases only when the appellant has completely failed to respond to 

an order to file a Statement. It is thus narrower than (c)(2) .... 

Prior to these amendments of this rule, the appeal was quashed if 

no timely Statement was filed or served; however, because the 

failure to file and serve a timely Statement is a failure to 

perfect the appeal, it is presumptively prejudicial and 

‘clear’ ineffectiveness. See, e.g., Commonwealth v. Halley, 

582 Pa. 164, 172, 870 A.2d 795, 801 (2005); Commonwealth 

v. West, 883 A.2d 654, 657 (Pa. Super. 2005). Direct appeal 

rights have typically been restored through a post-conviction relief 

process, but when the ineffectiveness is apparent and per se, the 

court in West recognized that the more effective way to 

resolve such per se ineffectiveness is to remand for the 

filing of a Statement and opinion. See West, 883 A.2d at 

657.

Pa.R.A.P. 1925 at Note (2007) (emphases added). Accordingly, 

notwithstanding the decisions in Lord and Butler, pursuant to the amended 

version of Pa.R.A.P. 1925, the failure by counsel to serve a Pa.R.A.P. 1925(b) 
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statement, as ordered, is presumptively prejudicial and clear ineffectiveness, 

and this Court is directed to remand for the filing of a Pa.R.A.P. 1925(b) 

statement with the trial judge, nunc pro tunc, and for the preparation and 

filing of an opinion by the lower court.

Moreover, in Commonwealth v. Burton, 973 A.2d 428, 432 (Pa. 

Super. 2009) (en banc), this Court declared, “The complete failure to file a 

1925 concise statement is per se ineffectiveness because it is without 

reasonable basis designed to effectuate the client’s interest and waives all 

issues on appeal.” We explained in Burton that “under the amended rule, 

the remedy now for failure to file a 1925 concise statement is remand to allow 

nunc pro tunc filing of the statement.” Id. at 431.

Appellant has stated in his brief that he “disagrees with the [PCRA 

c]ourt’s determination due to the electronic filing of such document that 

occurred on April 5, 2018 at 7:49 a.m.” Appellant’s Brief at 13. Our review 

of the certified record reflects that Appellant filed his Pa.R.A.P. 1925(b) 

statement with the clerk of court’s on April 5, 2018, and the item was docketed 

on that date. Although the PCRA court entered an order on March 28, 2018, 

that directed Appellant to serve a time stamped copy of the Pa.R.A.P. 1925(b) 

statement with the PCRA judge, there is no indication that Appellant complied 

with that portion of the PCRA court’s order. Hence, we conclude that Appellant 

properly filed the 1925(b) statement with the clerk of courts, but neglected to 

serve a time stamped copy on the PCRA judge.
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Thus, we are convinced that the failure of Appellant’s counsel to serve 

upon the PCRA judge a time stamped copy of the Pa.R.A.P. 1925(b) statement 

as directed amounts to per se ineffectiveness. Consequently, we are 

compelled to remand for Appellant’s counsel to serve upon the PCRA judge a 

time-stamped copy of the Pa.R.A.P. 1925(b) statement nunc pro tunc within 

ten days of the date of this memorandum, and for the preparation of a 

Pa.R.A.P. 1925(a) opinion by the PCRA court, to be filed with this Court within 

forty-five days thereafter.1

Case remanded for further proceedings consistent with this 

memorandum. Panel jurisdiction retained.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/7/19

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1 See Commonwealth v. Scott, 952 A.2d 1190, 1192 (Pa. Super. 2008) 

(retaining jurisdiction when remanding for the filing of a Pa.R.A.P. 1925(b) 

statement and preparation of a trial court opinion).