J

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- 17

J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENN SYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA Appellee

v.

FRANCISCO CINTRON

Appellant No. 1503 EDA 2016

Appeal from the Judgment of Sentence December 18

, 2015
In the Court of Common Pleas of Bucks County

Criminal Division at No(s): CP

- 09

- CR

- 0000249

- 2015

*****

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA Appellee

v.

FRANCISCO CINTRON

Appellant No. 1506 EDA 2016

Appeal from the Judgment of Sentence December 18

, 2015
In the Court of Common Pleas of Bucks County

Criminal Division at No(s): CP

- 09

- CR

- 0003117

- 2014

BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E. *

CONCURRING AND DISSENTING STATEMENT BY LAZARUS, J.: FILED JUNE 12, 2017

I concur in part and dissent in part.

____________________________________________

* Former Justice specially assigned to the Superior Court.J

- S29036

- 17

J

- S29037

- 17

- 2

- Unquestionably, the Appellant’s Rule 1925(b) statement in 1503 EDA

2016 1 did not “concisely identify[] each ruling or error that [he] intend[ed]

to challenge with sufficient detail to identify all pertinent issues for the trial

judge.” Pa.R.A.P. 1925(b)(4)(ii). However, I w ould find that two issues, 2

specifically those challenging the sufficiency of the evidence and

excessiveness of sentence, were preserved on appeal. These issues were

properly identified for the trial court in Appellant’s Rule 1925(b) statement

which enabl ed the trial court to sufficiently address those claims in its Rule

1925(a) opinion and while the record indicates that no relief is due, the trial

court improperly found them waived. Hence, my partial dissent. 3

____________________________________________

1 In 1506 EDA 2016, Appellant failed to file a timely Rule 1925(b) concise statement. For that reason the trial court found it “constitute[d] a waiver of all objections . . . [and, therefore,] no issues ha[d] been preserved for appeal. Trial Court Opinion , 6/21/16, at 3.

2 While the trial court indicates that Appellant waived his weight of the evidence challenge by “failing to raise it in a post

- sentence motion, or an oral or written pre

- sentence motion . . . [and] generally makes this argument for the f irst time in his 1925(b) Statement,” Trial Court Opinion, 10/4/16, at 15, we note that Appellant did raise a challenge to the weight in

his Post

- Trial Motion for Reconsideration. See Appellant’s Post

- Trial Motion for Reconsideration, 12/28/15, at ¶ 28.

3 I remind appellate counsel that if the lack of conciseness and specificity in Appellant’s Rule 1925(b) statement was a result of the fact that she had not yet received all of the “Notes of all Hearings, Motions, and Trial,” at the time

she filed her initi al statement, see Pa.R.A.P. 1925(b) Concise Statement of Errors Complained of on Appeal, 7/13/16, at 1, counsel should have followed the prescribed procedure to supplement the statement set forth in Rule 1925(b)(2). Merely stating that counsel “reserves t he right to farther [sic] supplement” the statement is not the equivalent of applying to the trial court and having her request granted by the court “for good cause shown.” See Pa.R.A.P. 1925(b)(2).