J-S41009-23

 2024 PA Super 22

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

SCOTT ANDREW BAKER JR.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 300 WDA 2023

Appeal from the Judgment of Sentence Entered February 14, 2023

In the Court of Common Pleas of Blair County Criminal Division at No(s): 

CP-07-CR-0002492-2021

BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*

CONCURRING OPINION BY OLSON, J.: FILED: February 9, 2024

I agree with the learned Majority that the amended judgment of 

sentence imposed by the trial court should be affirmed. However, I do so on 

the basis that Appellant, the Commonwealth of Pennsylvania, waived all issues 

by failing to file a timely concise statement of errors complained of on appeal 

pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Therefore, I 

would not consider the merits of the issue raised by the Commonwealth.

As the learned Majority notes, the trial court issued an order pursuant 

to Pa. R.A.P. 1925(b) directing the Commonwealth to file and serve a concise 

statement within 21 days of the order. This order was served on the Blair 

County District Attorney’s Office on March 15, 2023. The Commonwealth’s 

concise statement was not filed until May 18, 2023, which is beyond the 

requisite 21-day period. Notwithstanding the untimeliness of the 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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Commonwealth’s statement, the trial court addressed the merits of the 

Commonwealth’s issue, although it noted in a footnote that the issue was 

waived due to the untimely filing of the concise statement. See Trial Court 

Opinion, 6/15/23, at 3 n. 1.

The Majority states that “[i]t is well settled that only issues properly 

raised in a timely Rule 1925(b) statement are preserved for appellate review.” 

Majority Opinion at 7. However, relying upon Commonwealth v. Burton, 

973 A.2d 428 (Pa. Super. 2009) (en banc), the Majority declines to find waiver 

on the basis that the trial court had adequate opportunity to prepare an 

opinion addressing the issue raised. Id. at 7-8.

In Burton, this Court was tasked with deciding whether the 

Pennsylvania Supreme Court’s adoption of Pa. R.A.P. 1925(c)(3), effective 

July 25, 2007, superseded prior caselaw which required a finding of waiver 

when an untimely statement of errors complained of on appeal was filed. 

Specifically, the Burton Court considered the amended rule in light of 

Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998) which “established a 

bright-line rule for Rule 1925 compliance mandating a finding of waiver of all 

issues on appeal in the event of non-compliance with Rule 1925.” Burton, 

973 A.2d at 430 (footnote omitted). See also Commonwealth v. Butler, 

812 A.2d 631 (Pa. 2002) (waiver is automatic and applies regardless of 

whether the Commonwealth raises the waiver issue or the trial court issued 

an opinion addressing the merits of the issues on appeal); Commonwealth
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v. Castillo, 888 A.2d 775 (Pa. 2005) (reaffirming bright-line rule established 

in Lord).

Following the Lord, Butler and Castillo decisions, our Supreme Court 

adopted significant amendments to Pa. R.A.P. 1925. Pertinent to this 

discussion, the Burton Court noted that the 2007 amendments to the Rule 

included “a provision to remedy criminal defense counsel’s failure to file a 

1925 statement as ordered.” Burton, 973 A.2d at 430-431 (emphasis 

added). As this Court found:

That provision, contained in Rule 1925(c)(3) [as amended 

effective July 25, 2007], states as follows:

(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 shall remand for the filing of a Statement 

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

by the judge.

Thus, contrary to the Lord/Butler bright-line rule, 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. As the Burton Court further explained,

[t]he complete failure to file the 1925 concise statement is per se 

ineffectiveness [of counsel] 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 to effectuate the client’s 

interest and waives all issues on appeal. Thus untimely filing of 

the 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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Id. at 432-433 (footnote omitted). Hence, this Court held that Rule 

1925(c)(3) applies equally to situations where an attorney fails to file a concise 

statement on behalf of a client and when the attorney files an untimely concise 

statement on behalf of a client. Specifically, the Burton Court found 

“paradoxical results” would result if the two situations were not treated the 

same since

[c]lients each victimized by per se ineffectiveness would be 

treated differently; the abandoned client would receive remand, 

“the more effective way to resolve such per se ineffectiveness,” 

whereas the client whose lawyer files the 1925 concise statement 

late would be consigned to filing under the Post Conviction Relief 

Act, 42 Pa. C.S.A. § 9541 et seq.

Id. at 433 (footnote omitted). 

There is no question that, in interpreting the 2007 amendment to Pa. 

R.A.P. 1925(c)(3), the Burton Court concluded that the rule was applicable 

to situations where criminal defense counsel failed to file a timely 1925(b) 

statement. The Burton decision did not address the situation we face in this

case; i.e., the Commonwealth’s failure to file a timely 1925(b) statement. 

Accordingly, I do not believe that Burton controls this case.

I acknowledge, however, that a case filed by this Court two months 

following the Burton decision is applicable. In Commonwealth v. 

Grohowski, 980 A.2d 113 (Pa. Super. 2009), this Court was asked to consider

whether the Commonwealth waived issues on appeal for failing to file a timely 

1925(b) statement. The Grohowski Court acknowledged the Burton Court’s 

holding that a represented criminal defendant may file an untimely 
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1925(b) statement without risking waiver. Id. at 114. However, the

Grohowski Court concluded that Rule 1925(c)(3)

allows for remand “if an appellant” in a criminal case was ordered 

to file a statement and did not do so. There is no requirement set 

forth in the Rule that the appealing party must be the defendant

in order to apply the Rule. Furthermore, we refuse to read such 

a requirement into the Rule. 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. at 115. Thus, under the holding in Grohowski, Rule 1925(c)(3), as 

amended in 2007, applied equally to criminal defendants and the 

Commonwealth.

Judge Klein filed a dissenting opinion in Grohowski in which he found 

that the majority’s decision circumvented the Supreme Court’s bright-line 

waiver rule set forth in Lord and Castillo since the 2007 amendment to Rule 

1925(c)(3) applied only when the criminal defendant is the appellant. Id. 

at 116 (Klein, J., dissenting). As Judge Klein astutely noted,

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.

The reason for the rule is that when a criminal defense lawyer 

fails to file a Rule 1925(b) statement it is akin to abandonment 

because, at a Post Conviction Relief Act proceeding the defendant 

will almost always successfully argue that he was deprived of 

effective counsel and therefore is entitled to a new appeal after 
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counsel has filed a Rule 1925(b) statement so that all of his issues 

are not waived.

While it would have been better to specify [in Rule 1925(c)(3), as 

amended in 2007] that the “appellant” is only a “criminal 

defendant appellant,” since there is no way that a prosecutor can 

be “per se ineffective” there is no way this section can apply to 

the Commonwealth.

Id. at 117 (emphasis in original). I find Judge Klein’s analysis persuasive as

the sole purpose of Rule 1925(c)(3) is to prevent post-conviction proceedings 

in instances where criminal defense counsel is deemed to be per se ineffective 

and there is nothing in our jurisprudence that supports the conclusion that a 

prosecutor can be “per se ineffective”.

1

 Yet I recognize that Judge Klein’s view 

did not garner the majority and that the Grohowski opinion still has 

precedential value. However, I believe that subsequent amendments to Rule 

1925 make it clear that the holding in Grohowski is no longer viable.

Since the 2007 amendments to Rule 1925 and the issuance of the 

Grohowski opinion, Rule 1925 has been amended on numerous occasions. 

The current version of Rule 1925(c)(3) reads as follows:

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1

 In Commonwealth v. Taylor, 292 A.3d 1099 (Pa. Super. 2023) (nonprecedential decision), Judge Stabile filed a concurring memorandum that also 

questioned the decision rendered in Grohowski. Judge Stabile noted that 

treating both the criminal defendant and the Commonwealth the same for 

purposes of Rule 1925(c)(3) “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 .... 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).” Id. at *2-*3 (Stabile, J., concurring) (emphasis in 

original).
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(c) Remand.

(3) If an appellant represented by counsel in a criminal case was 

ordered to file and serve a Statement and either failed to do so, 

or untimely filed or served a Statement, such that the appellate 

court is convinced that counsel has been per se ineffective, and 

the trial court did not file an opinion, the appellate court may 

remand for appointment of new counsel, the filing or service 

of a Statement nunc pro tunc, and the preparation and filing of an 

opinion by the judge.

Pa. R.A.P. 1925(c)(3) (emphasis added.) The Explanatory Note to the current 

version of Rule 1925(c)(3) reiterates that the exception to the waiver doctrine 

set forth in this subparagraph applies when an appellant represented by 

counsel has completely failed to file a 1925(b) statement or failed to do so in 

a timely fashion. The Note explains the purpose of this subparagraph:

Direct appeal rights have typically been restored through a postconviction relief process, but when the effectiveness is apparent 

and per se, the court in [Commonwealth v.] West[, 883 A.2d 

654 (Pa. Super. 2005)] recognized that the more effective way to 

resolve such per se ineffectiveness is to remand for the filing of a 

[concise] Statement and opinion. The procedure set forth in 

West is codified in subparagraph (c)(3).

Pa. R.A.P. 1925(c)(3), Note (emphasis added; internal quotations omitted.)2 

The Note goes on to expressly state “[p]ro se appellants are excluded from 

this exception to the waiver doctrine as set forth in Commonwealth v. Lord, 

719 A.2d 306 (Pa. 1998).” Id.

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2 This statement contained in the Note to the current version of Pa. R.A.P. 

1925(c)(3) is identical to the statement contained in the Note to the 2007 

amended version of Rule 1925(c)(3).
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As is evident from a plain reading of the current version of Rule 

1925(c)(3), the appellate court has the option to remand for the appointment 

of new counsel if a timely concise statement is not filed by appellant’s counsel 

in a criminal case. Clearly, remand for the appointment of new counsel would 

not be appropriate if the Commonwealth, as appellant, failed to file a timely 

concise statement lending support for the conclusion that the waiver exception 

set forth in the rule only applies to an appellant who is a criminal defendant. 

More importantly, the Explanatory Note to Rule 1925(c)(3) provides that pro 

se appellants are excluded from the exception to the waiver doctrine and are 

still controlled by the bright-line waiver rule articulated in Lord. I do not

believe that the Commonwealth would be entitled to the protection of Rule 

1925(c)(3) if it fails to file an untimely concise statement, but a pro se criminal 

defendant would not be afforded such protection if he or she fails to do the 

same. Instead, the current rule makes it clear that the only party that is 

entitled to the waiver exception set forth in Rule 1925(c)(3) is the criminal 

defendant represented by counsel. This is because only the counseled criminal 

defendant can be a victim of per se ineffective assistance of counsel. Neither 

the Commonwealth or the criminal defendant who represents himself or 

herself can claim ineffective assistance of counsel.

Thus, I believe that the current version of Pa. R.A.P. 1925(c)(3) calls

into question the holding of Grohowski and, in fact, renders the holding

invalid. Under the current version of the rule, the Commonwealth is not 
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entitled to the waiver exception and is bound by the bright-line rule announced 

by our High Court in Lord. Accordingly, I would affirm the trial court on the 

basis that the Commonwealth waived its only issue on appeal. 

DATE: 02/09/2024