J-A03045-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

JAMES DOUGLAS MORGENSTERN, JR., 

 Appellant No. 982 MDA 2013 

Appeal from the Judgment of Sentence May 17, 2013

in the Court of Common Pleas of Bradford County 

Criminal Division at No.: CP-08-CR-0000570-2012 

BEFORE: PANELLA, J., OLSON, J., and PLATT, J.* 

MEMORANDUM BY PLATT, J. FILED AUGUST 01, 2014 

Appellant, James Douglas Morgenstern, Jr., appeals from the judgment 

of sentence imposed following his conviction of one count of persons not to 

possess firearms.1

 We affirm. 

The trial court summarized the factual history of this matter as 

follows: 

On May 16, 2012, Bradford County Sheriff Deputies, Brian 

Wibert and James Hart were traveling to Rome Borough to serve 

a bench warrant. They were in a marked vehicle and in full 

uniform. At about 3:00 p.m., while traveling through a rural 

area, they came upon a black Gran Prix sedan parked in a pull 

off area with the driver’s side door open. They did not stop. An 

hour later, upon return, the vehicle was in the same position 

including the driver’s side door being open. Initially, they drove 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court. 

1

 18 Pa.C.S.A. § 6105(a)(1). 
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by, but Deputy Hart suggested they return to determine if 

anyone needed help. They pulled in by the vehicle [and] Deputy 

Wibert ran the registration number. Deputy Hart saw a female 

in the vehicle behind the steering wheel, with the seat reclined 

and [her] eyes closed. He thought he recognized her as a 

person known to him. He asked her if she was okay and she 

opened her eyes. He asked if she was Trisha Bouse, and she 

said she was Desiree Bouse, [Appellant’s] girlfriend. Deputy 

Hart recognized the names and [Appellant] was known to him 

from his employment as a deputy and while a guard in the 

Bradford County Correctional Facility. Deputy Hart asked what 

“the situation was” as he wanted to [make] sure that she was 

okay. Bouse explained that they had run out of gas and that 

[Appellant] had gone on foot to seek fuel. Deputy Hart noticed 

that the backseat of the vehicle was packed with all kinds of 

various objects, including a red plastic gas can. Therefore, 

Deputy Hart asked Bouse what [Appellant] used to go retrieve 

gas, and she responded a gas can. Deputy Hart advised her that 

there was a gas can in the back seat. Bouse looked at it and 

told him that they had two cans. Deputy Hart then told Deputy 

Wibert. Deputy Wibert advised Deputy Hart that the information 

on the registration plate did not belong to the black Gran Prix 

sedan, but rather a 1995 Jeep Cherokee. [Appellant] then 

jogged up the road towards them. He called Deputy Hart by his 

first name, and asked what was going on. [Appellant] explained 

that the vehicle had run out of gas and that he knew people in 

[the] area and tried to find gas. He did not have a gas can. 

When asked about there being no gas can, he said he would 

borrow a gas can. . . . 

Deputy Hart then advised [Appellant] of the registration 

not matching the vehicle. [Appellant] began telling the deputy 

that the car was legal. Deputy Hart was aware that [Appellant] 

had been arrested many times and had issues with [substance 

abuse]. Deputy Hart was concerned that [Appellant] was under 

the influence of drugs and asked to do a quick pat down for 

officer safety, which [Appellant] complied with. Deputy Hart 

asked if he had any sharp object[s] on him, to which [Appellant] 

replied that he had a pocket knife. Deputy Hart asked him “what 

is going on” because “things were not adding up.” [Appellant] 

began explaining that he and a friend had been “scrapping [for 

metal]” at a place that had been damaged in the flood. Deputy 

Hart was aware that [Appellant] was on probation and asked him 

if he was, to which [Appellant] replied yes. Deputy Hart asked if 
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there was anything in the car they should know about, or was 

there anything illegal in the car. [Appellant] offered that there 

was a rifle in the trunk. Deputy Hart asked if they could look in 

the trunk and [Appellant] agreed. In the trunk was a rifle and a 

machete. Deputy Hart secured the rifle and machete. Deputy 

Hart believed that [Appellant] had a felony conviction and asked 

him if he did, to which [Appellant] replied yes. [Appellant] was 

not arrested at the time because Deputy Hart did not believe 

that he was a flight risk. Therefore, a summons was issued at a 

later date. . . . 

(Trial Court Opinion, 8/09/13, at 1-3). 

On May 18, 2012, Deputy Hart filed a criminal complaint against 

Appellant, alleging that he had committed the offense of persons not to 

possess firearms. On September 5, 2012, Appellant filed an omnibus 

pretrial motion to suppress the evidence, which the trial court denied on 

February 8, 2013. Appellant filed a motion to reconsider the motion to 

suppress, which the trial court denied on March 5, 2013. The case 

proceeded to a bench trial on March 22, 2013, and the court found Appellant 

guilty of the above-mentioned offense. On May 17, 2013, following 

preparation of a presentence investigation report (PSI), the trial court 

sentenced Appellant to a term of not less than twenty-four nor more than 

forty-eight months’ incarceration. Appellant filed a timely notice of appeal 

on May 29, 2013. 

On May 31, 2013, in accordance with Pennsylvania Rule of Appellate 

Procedure Rule 1925(b), the trial court entered an order requiring Appellant 

to file a concise statement of errors within twenty-one days. See Pa.R.A.P. 

1925(b). The order provided, in bold, capital-letter font, that “SAID 
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STATEMENT SHALL BE SPECIFIC AS TO WHAT CLAIMS WERE RAISED 

BEFORE [THE TRIAL] COURT AND WHY THE COURT’S RULINGS ON 

THE CLAIMS WERE ERROR[,]” and advised that failure to comply with this 

directive may result in waiver. (Concise Statement Order, 5/31/13, at 1) 

(emphasis in original). On June 14, 2013, Appellant timely filed a ninepage, forty-three-paragraph-long Rule 1925(b) statement. (See Rule 

1925(b) Statement, 6/14/13, at 1-9). The trial court filed a Rule 1925(a) 

opinion on August 9, 2013. 

In his brief, Appellant raises the following issues for this Court’s 

review: 

I. Did the trial court err in finding the investigation and search 

of [Appellant] was within the scope of the sheriff deputies’ 

jurisdiction? 

A. Are sheriffs and their deputies vested with the 

authority to enforce and/or investigate violations of

the [Vehicle Code] that do not rise to the level of 

breaches of the peace? 

B. Did the trial court err in finding the warrantless 

search of [Appellant] and his vehicle constitutional? 

II. Did the trial court err in finding [the] sheriff deputies did not 

exceed their authority by prosecuting [Appellant] under 18 Pa. 

C.S. § 6105 of the Crimes Code? 

(Appellant’s Brief, at 9-10). 

Prior to analyzing the issues in Appellant’s brief, we must determine 

whether he properly preserved those claims for our review, as required by 

Rule 1925(b). Rule 1925(b)(4) provides, in relevant part: 
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(ii) The Statement shall concisely identify each ruling or 

error that the appellant intends to challenge with sufficient detail 

to identify all pertinent issues for the judge. The judge shall not 

require the citation to authorities; however, appellant may 

choose to include pertinent authorities in the Statement. 

* * * 

(iv) The Statement should not be redundant or provide 

lengthy explanations as to any error. Where non-redundant, 

non-frivolous issues are set forth in an appropriately concise 

manner, the number of errors raised will not alone be grounds 

for finding waiver. 

(v) Each error identified in the Statement will be deemed 

to include every subsidiary issue contained therein which was 

raised in the trial court; this provision does not in any way limit 

the obligation of a criminal appellant to delineate clearly the 

scope of claimed constitutional errors on appeal. 

* * * 

(vii) Issues not included in the Statement and/or not 

raised in accordance with the provisions of this paragraph (b)(4) 

are waived. 

Pa.R.A.P. 1925(b)(4)(ii), (iv), (v), (vii). 

It has been held that when the trial court directs an 

appellant to file a concise statement of matters complained of on 

appeal, any issues that are not raised in such a statement will be 

waived for appellate review. Similarly, when issues are too 

vague for the trial court to identify and address, that is the 

functional equivalent of no concise statement at all. Rule 1925 

is intended to aid trial judges in identifying and focusing upon 

those issues which the parties plan to raise on appeal. Thus, 

Rule 1925 is a crucial component of the appellate process. 

When the trial court has to guess what issues an appellant is 

appealing, that is not enough for meaningful review.

Commonwealth v. Smith, 955 A.2d 391, 393 (Pa. Super. 2008) (en banc) 

(case citations and quotation marks omitted). If an appellant’s Rule 1925(b) 

concise statement is too vague, this Court may find waiver. See
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Commonwealth v. Hansley, 24 A.3d 410, 415-16 (Pa. Super. 2011), 

appeal denied, 32 A.3d 1275 (Pa. 2011) (finding three of appellant’s issues 

on appeal waived where he failed to specify claims in his Rule 1925(b) 

statement); see also Commonwealth v. Castillo, 888 A.2d 775, 776, 780 

(Pa. 2005) (reaffirming bright-line waiver rule for Rule 1925 established in 

Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998), and stating that any 

issues not raised in Rule 1925(b) statement are waived.). An en banc panel 

of this Court recently stated: 

Our Supreme Court intended the holding in Lord to 

operate as a bright-line rule, such that “failure to comply with 

the minimal requirements of Pa.R.A.P. 1925(b) will result in 

automatic waiver of the issues raised.” Commonwealth v. 

Schofield, 888 A.2d 771, 774 (Pa. 2005) (emphasis added); 

see also [Commonwealth v.] Castillo, 888 A.2d at 780. 

Given the automatic nature of this type of waiver, we are 

required to address the issue once it comes to our attention. 

Indeed, our Supreme Court does not countenance anything less 

than stringent application of waiver pursuant to Rule 1925(b): 

“[A] bright-line rule eliminates the potential for inconsistent 

results that existed prior to Lord, when . . . appellate courts had 

discretion to address or to waive issues raised in non-compliant 

Pa.R.A.P. 1925(b) statements.” Id. Succinctly put, it is no 

longer within this Court’s discretion to ignore the internal 

deficiencies of Rule 1925(b) statements. 

Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 2014 WL 

930822 at *2 (Pa. Super. filed March 11, 2014) (en banc) (emphasis 

original); see id. at *5 (holding that this Court cannot address merits of 

appellant’s issues where it failed to comply timely with trial court’s order 

directing it to file concise statement of errors). 
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Here, Appellant filed a nine-page Rule 1925(b) statement of errors 

that is vague and far from concise. (See Rule 1925(b) Statement, 6/14/13, 

at 1-9). It consists of forty-three numbered paragraphs, divided into three 

sections, titled “Procedural History,” “Facts of the Case,” and “Count OneMotion to Suppress and Dismiss.” (See id.). It does not precisely identify 

any of Appellant’s issues on appeal, and it is styled as a motion rather than 

a Rule 1925(b) statement. (See id.). In fact, portions of the document 

mirror certain paragraphs included in Appellant’s omnibus pretrial motion to 

suppress. (See id.; see also Omnibus Pretrial Motion to Suppress Evidence 

and to Dismiss, 9/05/12, at unnumbered pages 1-3). Further, the 

paragraphs in Appellant’s Rule 1925(b) statement do not directly correspond 

to the specific issues and sub-issues raised in his brief. (See Rule 1925(b) 

Statement, 6/14/13, at 1-9; see also Appellant’s Brief, at 9-10). 

While the trial court addressed Appellant’s issues to the extent it could 

discern them, its Rule 1925(a) opinion simply restated its reasons for 

denying Appellant’s motion to suppress and motion for reconsideration. 

(See Trial Ct. Op., at 3-6). The court could not directly address each of the 

issues and sub-issues Appellant raised in his brief because Appellant failed to 

concisely identify them for the court in his Rule 1925(b) statement, despite 

the court’s clear directive to “BE SPECIFIC AS TO WHAT CLAIMS WERE 

RAISED BEFORE [THE TRIAL] COURT AND WHY THE COURT’S 

RULINGS ON THE CLAIMS WERE ERROR.” (Concise Statement Order, 
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5/31/13, at 1) (emphasis in original); see also Appellant’s Brief, at 9 

(noting that trial court did not directly address sub-issue I.A.)). 

 Based on this record, we conclude that Appellant failed to comply with 

the minimal requirements of Rule 1925(b), and that, consequently, he has 

waived all of his issues on appeal. See Pa.R.A.P. 1925(b)(4)(vii); see also 

Greater Erie Indus. Dev. Corp., supra at *2 (citing Schofield, supra at 

774). Accordingly, we may not address the merits of those issues. See 

Greater Erie Indus. Dev. Corp., supra at *2, 5.2

 

____________________________________________ 

2

 We recognize that our Rules of Appellate Procedure provide for limited 

instances in which appellate courts may remand criminal cases to trial courts 

in order to cure defects in Rule 1925 statements. In relevant part, Pa.R.A.P. 

1925(c) permits appellate courts in criminal cases to remand in the following 

three circumstances related to the filing of Rule 1925(b) statements: 

(1) An appellate court may remand [in a criminal case] for

a determination as to whether a Statement has been filed and/or 

served or timely filed and/or served. 

 

* * * 

(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. 

(4) In a criminal case . . . [where counsel filed an

Anders/McClendon brief] in lieu of filing a Statement [and] 

upon review of the Anders/McClendon brief, the appellate 

court believes that there are arguably meritorious issues for 

review[.] . . . 

(Footnote Continued Next Page) 
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 Judgment of sentence affirmed. 

 Olson, J., files a Concurring Memorandum. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/1/2014 

 

(Footnote Continued) _______________________ 

Pa.R.A.P. 1925(c)(1), (3)-(4). None of these circumstances is applicable in 

the present case. With respect to Pa.R.A.P. 1925(c)(1), the record reflects 

that Appellant’s Rule 1925(b) statement was timely filed. With regard to 

Pa.R.A.P. 1925(c)(3), the official note to the rule makes clear that remand is 

available “only when the appellant has completely failed to respond to an 

order to file a Statement. . . . [W]hen waiver occurs due to the improper 

filing of a Statement . . . relief may occur only through the post-conviction 

relief process[.]” Pa.R.A.P. 1925(c)(3), note. Here, Appellant has not 

completely failed to respond to the court’s order to file a Rule 1925(b) 

Statement. Finally, with respect to Pa.R.A.P. 1925(c)(4), counsel has not 

filed an Anders/McClendon brief. Therefore, remand is not available in the 

instant case.