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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : LEWIS BROOKS , : : Appellant : No. 2242 EDA 2014 Appeal from the Judgment of Sentence June 17, 2014 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP

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MC

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BEFORE: GANTMAN, P.J., MOULTON and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J. : FILED NOVEMBER 23, 2016 Lewis Brooks (“Brooks”) appeals from the judgment of sentence imposed following h is convictions of aggravated assault, possessing an instrument of crime, simple assault and recklessly endangering another
person. 1 We affirm. The trial court concisely set forth the relevant facts as follows: On September 5, 2012, the complaining witnes s, [Keith] Johnson [(“Johnson”),] was driving in the area of 58 th and Willow [Streets] in Philadelphia. At that location, [Johnson] observed [Brooks] driving a red Chevy Blazer. [FN] Both men had a heated exchange of words[,] and [Brooks] told [Johnson] t o follow him, which he did. After a short period of time, [Johnson] turned off from following [Brooks] and instead went to a client’s house on Florence [Avenue]. As he exited his truck, [Johnson] observed [Brooks] driving straight towards him in his vehi cle. [Brooks] struck [Johnson] with his vehicle, causing [Johnson] to impact the windshield. [Johnson] was hospitalized for two months and suffered multiple fractures to his legs and scarring on his head.

1 18 Pa.C.S.A. §§ 2702(a)(1), 907(a), 2701(a), 2705.J

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- [FN] [Johnson] and [Brooks] were having some ani mosity before this incident due to the fact that [Johnson] was the former paramour of [Brooks’s] wife. Trial Court Opinion, 6/23/15, at 2 (internal citations omitted). Following a bench trial, Brooks was convicted of the above

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crimes. The tria l court deferred sentencing and ordered a pre

- sentence investigation report. On June 17, 2014, the trial court sentenced Brooks to an aggregate term of 6 to 12 years in prison.
Brooks filed a pro se Motion for Reconsideration, which the trial court
denie d. Brooks filed a Notice of Appeal, and the trial court ordered Brooks to file a Pa.R.A.P. 1925(b) Concise Statement. Brooks’s counsel did not respond to the Order, and the trial court subsequently appointed Brooks new counsel. On March 18, 2015, the tr ial court issued a new Order directing Brooks to file a Concise Statement within 21 days. However, Brooks, through counsel, did not file his Concise Statement until May 12, 2015. 2 Nevertheless, the trial court accepted Brooks’s Concise Statement and
addr essed his claims in its Opinion. On appeal, Brooks raises the following issue for our review: “Did the court commit error by convicting [Brooks] of the charges[,] where the evidence at trial was insufficient to [] disprove beyond a reasonable doubt

2 The trial court’s Order complied with the requirements of Rule 1925(b), and was properly served on Brooks’s counsel pursuant to Pa.R.Crim.P. 114. Additionally, there is nothing in the record to suggest that Brooks sought an extension of time for filing his Concise Statement.J

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that [ Brooks] acted in self[

- ]defense?” Brief for Appellant at 2. Before addressing the merits of Brooks’s claims, we must determine whether Brooks has properly preserved this issue for our review, as required by Pa.R.A.P. 1925(b). In Commonwealth v. Lord , 71 9 A.2d 306 (Pa. 1998), the Pennsylvania Supreme Court declared that “in order to preserve their claims for appellate review, [a]ppellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Ru le 1925. Any issues not raised in a 1925(b) statement
will be deemed waived.” Lord , 719 at 309; see also Pa.R.A.P. 1925(b)(4)(vii) (providing that “[i]ssues ... not raised in accordance with the provisions of this paragraph (b)(4) are waived.”). 3 This Cou rt, sitting en banc , recently reconsidered the issue, and held that, following the Supreme
Court’s decisions in Castillo and Schofield , it is no longer within this Court’s discretion to review the merits of an untimely Rule 1925(b) statement based solely on the trial court’s decision to address the merits of those untimely raised issues. Under current precedent, even if a trial court ignores the untimeliness of a Rule 1925(b) statement and addresses the merits, those claims still must be considered waive d: Whenever

3 Following the Supreme Court’s decision in Lord , this Court briefly allowed the discretionary review of appeals where the t rial court accepted an untimely Rule 1925(b) statement and addressed the issues raised in its Rule 1925(b) opinion. See Commonwealth v. Aslop , 799 A.2d 129 (Pa. Super. 2002); Commonwealth v. Ortiz , 745 A.2d 662 (Pa. Super. 2000). However, t he Supreme Court specifically disapproved of this exception, and re - affirmed Lord ’s bright

- line rule. See Commonwealth v. Castillo , 888 A.2d 775, 780 (Pa. 2005); see also Commonwealth v. Schofield , 888 A.2d 771, 774 (Pa. 2005) (stating that “failure to co mply with the minimal requirements of Pa.R.A.P. 1925(b) will result in automatic waiver of the issues raised.”).J

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a trial court orders an appellant to file a concise statement of errors complained of on appeal pursuant to Rule 1925(b), the appellant must comply in a timely manner. Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc. , 88 A.3d 222, 22 5 (Pa. Super. 2014) ( en banc ) (internal citations and quotation marks omitted). Therefore, because Brooks’s Rule 1925(b) Concise Statement was untimely filed, his claim is waived. See id. at 227 (concluding that the appellant’s issues were waived for fai lure to file a timely Rule 1925(b) statement). Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary
Date: 11/23/2016J

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