J

- S41009

- 23 2024 PA Super 22

COMMONWEALTH OF PENNSYLVANIA

Appellant

v.

SCOTT ANDREW BAKER JR. : : : : : : : : : 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 note s, the trial court issue d 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.J

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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 c oncise 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 Burt on , this Co urt 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 R.A.P. 1925 (c) (3), effective July 25, 2007, superseded prior caselaw which required a finding of waiver when an untimely statement of errors complained of on a ppeal was filed.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 ma ndating 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 wheth er the Commonwealth raises the waiver issue or the trial court issued an opinion addressing the merits of the issues on appeal); CommonwealthJ

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v. Castillo , 888 A.2d 775 (Pa. 2005) (reaffirming bright

- line rule established
in Lord ). Following the Lord

, But ler 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 43 0

- 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 appellan t in a criminal case was ordered to file a Statement and failed to do s o , 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 preparat ion 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 f urther explained, [t]he complete failure to file the 1925 concise statement is per se ineffective ness [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 i neffectiveness be cause 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.J

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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 sin ce [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 statemen t 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 whe re 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 t o 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 untimelyJ

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1925(b) statement without risking waive r . Id. at 114. However, the
Grohowski Court concluded that Rule 1925(c)(3)
allows for remand “ if an appellan t” in a criminal case was ordered to file a stat ement 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 , applie d equally to criminal defendants and the
Commonwealth. Judge Klein filed a dis senting 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.

“ I neffective ness of counsel” is a term of art that relates to when a criminal defense law yer 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 abandon ment 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 afterJ

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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 t here is nothing in our jurisprudence that supports the conclusion that a prosecutor can be “ per se ineffective”

. 1 Yet I recognize tha t Judge K l ein’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:

_________________ __________ ______ ____ _______ 1 In Commonwealth v. Taylor , 292 A.3d 1099 (Pa. Super. 2023) ( non precedential decision) , Judge Stabile filed a concurring memorandum that also questioned the decision rendered in Grohowski

. Judge Stabile noted that tr eating 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 accu sed 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 (Stab ile, J., concurring) (emphasis in original)

.J

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(c) Remand. (3) I f an appellant represented by counsel in a crimin al 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 app ellate 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 th e exception to the waiver doctrine
set for th 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 explai ns the purpose of this sub paragraph : Direct appeal rights have typically been restored through a post

conviction 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 s e appellants are excluded from this exception to the waiver doctrine as set forth in Commonwealth v. Lord , 719 A.2d 306 ( P a. 1998). ” Id.

_________________ __________ ______ ____ _______ 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).J

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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, re mand 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 wh o 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) i s 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 c laim 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 a nd, in fact, renders the holding invalid. Under the current version of the rule, the Commonwealth is n otJ

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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