J-S12025-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JEFF LAVALLIERE,

Appellant No. 1056 EDA 2014

Appeal from the Judgment of Sentence March 14, 2014,

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0000137-2013, CP-51-CR-0000139-

2013

BEFORE: BOWES, SHOGAN, and FITZGERALD,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 27, 2015

Appellant, Jeff Lavalliere, appeals from the judgment of sentence 

entered following his convictions at docket number CP-51-CR-0000137-2013 

of one count each of simple assault, possessing instruments of crime 

(“PIC”), and recklessly endangering another person (“REAP”), and at docket 

number CP-51-CR-0000139-2013 of one count of REAP. For the following 

reasons, we remand for the filing of a Pa.R.A.P. 1925(b) statement, a trial 

court opinion pursuant to Pa.R.A.P. 1925(a), and the issuance of a new 

briefing schedule.

____________________________________________

*

 Former Justice specially assigned to the Superior Court.
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At the conclusion of a nonjury trial, Appellant was convicted of the 

crimes stated above. On January 21, 2014, Appellant filed a motion for 

judgment of acquittal, which the trial court denied on March 14, 2014. Also 

on that date, at docket number CP-51-CR-0000137-2013, the trial court 

sentenced Appellant to serve a term of probation of two years on the 

conviction of simple assault, a term of probation of three years on the 

conviction of PIC, and no further penalty on the conviction of REAP. At 

docket number CP-51-CR-0000139-2013 the trial court sentenced Appellant 

to serve a term of probation of two years on the conviction of REAP. All 

probationary terms were ordered to be served concurrently. On April 2, 

2014, Appellant filed a timely notice of appeal.

On May 29, 2014, the trial court issued an order directing Appellant to 

file a Pa.R.A.P. 1925(b) statement within twenty-one days. Thus, 

Appellant’s Pa.R.A.P. 1925(b) statement was due on or before June 19, 

2014. However, Appellant’s counsel never filed a timely Pa.R.A.P. 1925(b) 

statement. On June 24, 2014, the trial court issued an opinion, which 

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

indicated that all issues have been waived for purposes of appeal. 

Coincidentally, Appellant’s counsel untimely filed a Pa.R.A.P. 1925(b) 

statement on June 24, 2014.

Appellant has presented the following issues for our review:

I. Whether the trial court abused its discretion by dismissing 

[Appellant’s] appeal where [Appellant] timely filed a statement 
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of errors upon receiving notification of a request to file the 

statement.

II. Whether [Appellant’s] conviction for simple assault, reckless 

endangerment of another person, and possession of an 

instrument of crime should be vacated where the evidence at 

trial was legally insufficient to support the convictions?

III. Whether [Appellant’s] conviction for simple assault and 

possession of an instrument of crime should be vacated because 

the conviction is against the weight of the evidence and 

[Appellant] was acquitted of aggravated assault?

IV. Whether [Appellant’s] conviction for reckless endangerment 

of another person should be vacated because it is against the 

weight of the evidence and [Appellant] was acquitted of 

aggravated assault?

V. Whether [Appellant’s] conviction should be vacated because 

the trial court erred by failing to consider the character evidence 

of one of the witnesses?

VI. Whether [Appellant] should be granted a new trial because 

the verdict is inconsistent with the evidence presented at trial?

Appellant’s Brief at 5-6. Before we address the merits of the issues 

presented, we first consider the ramifications of Appellant’s failure to file a 

timely Pa.R.A.P. 1925(b) statement.

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 expanded upon Lord, holding 

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 
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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 

subsequently amended Pa.R.A.P. 1925 to include a procedure for appellate 

courts to follow when a criminal appellant’s counsel fails to file a Pa.R.A.P. 

1925(b) statement.

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

which provides as follows:

(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). The official note to subsection (c)(3) offers the 

following additional 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), 

above. 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. The 

procedure set forth in West is codified in paragraph (c)(3). As 

the West court recognized, this rationale does not apply when 

waiver occurs due to the improper filing of a Statement. In such 
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circumstances, relief may occur only through the post-conviction 

relief process and only upon demonstration by the appellant 

that, but for the deficiency of counsel, it was reasonably 

probable that the appeal would have been successful. An 

appellant must be able to identify per se ineffectiveness to 

secure a remand under this section, and any appellant who is 

able to demonstrate per se ineffectiveness is entitled to a 

remand. Accordingly, this paragraph does not raise the concerns 

addressed in Johnson v. Mississippi, 486 U.S. 578, 588-89 

(1988) (observing that where a rule has not been consistently or 

regularly applied, it is not--under federal law--an adequate and 

independent state ground for affirming petitioner’s 

conviction.)[.]

Pa.R.A.P. 1925, note (2007). Accordingly, notwithstanding the decisions in 

Lord and Butler, pursuant to the amended version of Pa.R.A.P. 1925, the 

complete failure by counsel to file a Pa.R.A.P. 1925(b) statement, as 

ordered, is presumptively prejudicial and clear ineffectiveness. In such 

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

statement nunc pro tunc and for the preparation and filing of an opinion by 

the lower court.

An en banc panel of this Court subsequently clarified, in the following 

discussion, that the same rationale applies for untimely filings:

The complete failure to file the [Pa.R.A.P.] 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. Likewise, the untimely filing is per 

se ineffectiveness because it is without reasonable basis 

designed to effectuate the client’s interest and waives all issues 

on appeal. Thus untimely filing of the [Pa.R.A.P.] 1925 concise 

statement is the equivalent of a complete failure to file. Both 

are per se ineffectiveness of counsel from which appellants are 

entitled to the same prompt relief.

* * *
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[I]f 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, 432-433 (Pa. Super. 2009) (en 

banc) (footnote omitted).

Instantly, appointed counsel was ineffective per se because he filed 

the Pa.R.A.P. 1925(b) statement in an untimely manner. Burton, 973 A.2d

at 433. In addition, although the trial court prepared an opinion pursuant to 

Pa.R.A.P. 1925(a), it indicated that all issues had been waived due to failure 

to file the Pa.R.A.P. 1925(b) statement by the time of preparation of the trial 

court’s opinion. Consequently, we are compelled to remand for the filing of 

a Pa.R.A.P. 1925(b) statement nunc pro tunc, and for the preparation of a 

Pa.R.A.P. 1925(a) opinion by the trial court.

Upon remand, the trial court is directed to order Appellant to file a 

Pa.R.A.P. 1925(b) statement within twenty-one days of the trial court’s 

receipt of the record from the Superior Court Prothonotary. The trial court 

shall then prepare and file a Pa.R.A.P. 1925(a) opinion within forty-five days 

of the filing of the Pa.R.A.P. 1925(b) statement. After the trial court’s 
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certification of its decision, the Superior Court Prothonotary is directed to 

establish a new briefing schedule for the parties.1

Remanded for further proceedings consistent with this memorandum. 

Panel jurisdiction retained.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/27/2015

____________________________________________

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

(retaining jurisdiction when remanding for the filing of a Rule 1925(b) 

statement and preparation of a trial court opinion).