J-S22005-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DANNY CANDELARIO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1948 EDA 2021

Appeal from the Judgment of Sentence Entered August 19, 2021

In the Court of Common Pleas of Wayne County Criminal Division at 

No(s): CP-64-CR-0000108-2021

BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.

MEMORANDUM BY BOWES, J.: FILED AUGUST 22, 2022

Danny Candelario appeals from the judgment of sentence imposed after 

a jury convicted him of simple assault. We remand for additional proceedings.

On October 1, 2020, Appellant was charged with simple assault and 

summary counts of harassment and disorderly conduct stemming from a 

physical altercation with his neighbor. At trial, Appellant argued that he acted 

in self-defense. N.T., 7/12/21, at 16-17, 111-115. After hearing the evidence 

and the arguments of counsel, the jury convicted Appellant of simple assault

and the trial court found him not guilty of the summary offenses. On 

August 19, 2021, the court imposed twelve to twenty-four months of 

imprisonment. Appellant timely filed a post-sentence motion challenging the 

discretionary aspects of his sentence, which the court denied on August 31, 

2021. 
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Appellant filed a pro se notice of appeal on September 10, 2021. Four 

days later, his counsel filed a motion requesting leave to withdraw from 

representation because Appellant “verbally dismissed” him and indicated a

desire to proceed pro se. Motion to Withdraw, 9/14/21, at ¶ 7. On September 

20, 2021, Appellant filed a second pro se notice of appeal,1referencing the 

judgment of sentence and “ineffectiveness of counsel.” Notice of Appeal, 

9/20/21, at 1. On the same day, the trial court issued an order directing 

Appellant to file a statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925(b). Counsel never filed the court-ordered Rule 1925(b) 

statement. Acting pro se, Appellant subsequently filed a “statement of 

reasons” in which he asserted that his counsel was ineffective and requested

the appointment of a new attorney. Statement of Reasons, 11/12/21, at 1. 

Thereafter, counsel filed with this Court an application for leave to 

withdraw as counsel, and we issued an order directing the trial court to 

conduct a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 

1998). On November 23, 2021, the trial court granted counsel’s request to 

withdraw and permitted Appellant to proceed pro se. Order, 11/23/21, at 1. 

Appellant subsequently filed motions with the trial court asserting that he 

never agreed to proceed pro se and requesting the appointment of new 

counsel. Motion for Legal Representation, 2/16/22, at ¶ 2; Motion for Relief, 

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1 This Court later dismissed, as duplicative, an appeal at 1949 EDA 2021 that 

was initiated by the second notice of appeal.
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2/16/22, at ¶¶ 1-4. The trial court denied those motions on March 1, 2022.2 

Order, 3/1/22, at 1.

Appellant presents the following questions for our review:

I. Whether the jury’s verdict was not supported by sufficient 

evidence where, the Commonwealth failed to meet its 

burden of proving that Appellant intentionally, knowingly, or 

recklessly caused bodily injury to the alleged victim?

II. Whether the aggregate sentence imposed was “clearly 

unreasonable?”

III. Whether the trial court erred as a matter of law and/or 

abused its discretion in its ruling(s) after an alleged 

conducting of an on-the-record hearing pursuant to 

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998)[,] in 

rendering a determination that Appellant waived his 

constitutional right on direct appeal knowingly, intelligently 

and voluntarily?

Appellant’s brief at 4.

Before we address the merits of Appellant’s claims, we must determine 

whether he has preserved them for our review. The trial court advised this 

Court that because Appellant failed to comply with its order pursuant to 

Pa.R.A.P. 1925, we should consider that failure to constitute “a waiver of all 

objections” to the judgment of sentence. Statement of Reasons, 11/12/21, 

at 1. Accordingly, there is no trial court opinion addressing the merits of 

Appellant’s claims. 

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2 This Court also received copies of those motions and denied them without 

prejudice to Appellant’s right to apply to the trial court for the requested relief. 

Order, 4/25/22, at 1.
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Here, the trial court issued its order pursuant to Pa.R.A.P. 1925 on 

September 21, 2021, and Appellant was represented by counsel at that time 

and until November 23, 2021. Generally, the failure to file an ordered 

statement of issues complained of on appeal pursuant to Pa.R.A.P. 1925(b) 

constitutes a waiver of all claims on appeal. See Commonwealth v. Carr, 

227 A.3d 11, 18 (Pa. Super. 2020) (observing that appellants must comply 

with a trial court’s order to file a 1925(b) statement in order to preserve their 

claims for appellate review, and any issues not raised in a 1925(b) statement 

will generally be waived); Pa.R.A.P. 1925(b)(vii) (“Issues not included in the 

Statement and/or not raised in accordance with the provision of this paragraph 

(b)(4) are waived.”). Since Appellant was represented by counsel throughout 

the entire period to file a timely 1925(b) statement, and counsel failed to 

comply, the omission amounts to per se ineffective assistance of counsel, 

which calls for a remand rather than waiver. See Pa.R.A.P. 1925(c)(3) 

(providing that when counsel fails to file a timely Rule 1925(b) statement, this 

Court “is convinced that counsel has been per se ineffective,” and the trial 

court did not file an opinion, we may remand for the filing of an opinion by the

trial court).

At Appellant’s Grazier hearing, he twice asserted that his thenappointed counsel had failed to file a Rule 1925(b) statement:

[Appellant]: Well, I do not want [counsel] representing me 

because he was ineffective. You actually put in two motions then, 

and he has not even answered them. You put an order in on . . .

September 20th for a concise statement of matters. [Counsel] did 

not even answer that motion. You put in another order on 
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November 2nd for [a] statement of reason[s]. He did not even 

answer that which proves he’s ineffective. He’s not, he doesn’t 

have my best interests at heart. So why would I continue with 

[counsel] and he has not even filed answers to your orders?

The Court: Okay. And I appreciate that, sir. I understand what 

you’re saying to me, but the Court is not required to appoint you 

a new public defender.

. . . .

[Appellant]: Concise statement of matters is very important on 

an appeal, and he failed to even answer your order on that. You 

sent him another order on November 2nd, and he failed to answer 

that one which is a statement of reason[s]. He’s not even 

answering your orders.

The Court: Okay.

N.T., 11/22/21, at 7, 9. When the court asked counsel about the failure to 

file a Rule 1925(b) statement, counsel did not dispute that omission:

[Counsel]: Your Honor, Mr. Candelario dismissed me, and then 

out of an abundance of caution, I filed the Motion to Withdraw as 

Counsel. He’s filing things on his own with those. So, I am 

prepared to do the appeal, if he wants me to do the appeal. I 

certainly will vigorously and zealously represent him as is my 

obligation. 

N.T., 11/22/21, at 9-10.

In this circumstance, the failure to file an ordered Rule 1925(b) 

statement is attributable to per se ineffective assistance rather than a 

dereliction on Appellant’s part. See Commonwealth v. Burton, 973 A.2d 

428, 432 (Pa. Super. 2009) (en banc) (“The complete failure to file the [Rule] 

1925 concise statement is per se ineffectiveness because it is without 

reasonable basis designed to effectuate the client’s interest and waives all 
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issues on appeal.”). Moreover, because the trial court has not filed an opinion 

addressing the issues sought to be raised on appeal, remand is necessary for 

the filing of a Rule 1925(b) statement nunc pro tunc. As the per se

ineffectiveness occurred prior to the Grazier hearing where Appellant was 

given the Hobson’s choice of either proceeding with his then-ineffective 

counsel or proceeding pro se, we additionally conclude that remand is 

necessary for the appointment of new counsel to assist Appellant with 

complying with Rule 1925. 

Accordingly, we remand this matter for the trial court to appoint new 

counsel for Appellant within fourteen days of the date of this memorandum. 

New counsel shall file a Rule 1925(b) statement with the trial court within 

twenty-one days of the date of appointment, unless extended by the trial 

court. The trial court is directed to file a Rule 1925(a) opinion within thirty 

days of the filing of the Rule 1925(b) statement. Thereafter, the trial court 

shall certify the record, including the Rule 1925(b) statement and its opinion, 

and transmit the certified record to this Court.

Case remanded with instructions. Jurisdiction retained.