J. A17044/19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

CRAIG ANDRUS, : No. 1868 EDA 2018

:

 Appellant :

Appeal from the Judgment of Sentence Entered June 4, 2018,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0005092-2017

BEFORE: PANELLA, P.J., OLSON, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 09, 2019

Craig Andrus appeals from the June 4, 2018 judgment of sentence 

entered in the Court of Common Pleas of Philadelphia County following his 

entry of a negotiated guilty plea to third-degree murder and illegal possession 

of a firearm.

1

 The trial court sentenced appellant to 111⁄2 to 23 years of 

imprisonment. We affirm.

At the outset, we note that because the facts giving rise to appellant’s 

convictions are not germane to the disposition of this appeal, we need not set 

them forth. With respect to procedural history, the record reflects that after 

imposition of sentence, no post-sentence motions were filed. The record 

further reflects that on June 12, 2018, despite being represented by counsel, 

 

1 18 Pa.C.S.A. §§ 2502(c) and 6105(a)(1), respectively.
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appellant filed a pro se notice of appeal to this court stating that he “would 

like to take back his guilty plea.” (Notice of appeal, 6/6/18.) On August 28, 

2018, this court entered an order remanding the case to the trial court for 

30 days to determine whether trial counsel had abandoned appellant and to 

take further action, as required, to protect appellant’s appellate rights, 

including determination of appellant’s eligibility for court-appointed counsel. 

(Per curiam order, 8/28/18.)

In accordance with that remand order, the trial court held a hearing on 

September 11, 2018, wherein it determined that trial counsel had abandoned 

appellant. As a result, the trial court entered an order that same day 

permitting trial counsel to withdraw and appointing Attorney Gina Amoriello 

to represent appellant on direct appeal. (Trial court order, 9/11/18.) By 

separate order also entered on September 11, 2018, the trial court directed 

Attorney Amoriello to file a concise statement of errors complained of on 

appeal pursuant to Pa.R.A.P. 1925(b) on or before October 2, 2018. (Trial 

court Rule 1925(b) order, 9/11/18.) Attorney Amoriello failed to timely 

comply.

Instead, on September 13, 2018, Attorney Amoriello filed an 

“application for remand” with this court requesting that we remand to the trial 

court so that appellant could file a motion to withdraw his guilty plea. 

(Application for remand, 9/13/18 at 1-2.) This court then ordered the 

Commonwealth and the trial court to show cause, within 21 days, as to why 
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the case should not be remanded for further proceedings in accordance with 

Pa.R.Crim.P. 720, which sets forth post-trial procedures. (Per curiam order, 

10/18/18.) The Commonwealth and the trial court timely complied. We note 

that the trial court’s response also served as its Rule 1925(a) opinion. (Trial 

court’s written response to Superior Court’s October 18, 2018 order and 

Rule 1925(a) opinion, 10/23/18 at 1.) In that response and opinion, the trial 

court stated that remand pursuant to Rule 720 is not necessary because even 

if appellant filed a timely post-sentence motion to withdraw his guilty plea, it 

would have denied the motion because the record reflects that appellant 

entered his guilty plea knowingly, voluntarily, and intelligently. (Id. at 3-6.) 

On November 30, 2018, this court entered an order denying appellant’s 

application for remand. (Per curiam order, 11/30/18.)

On December 1, 2018, Attorney Amoriello filed an untimely

Rule 1925(b) statement on appellant’s behalf that challenged the 

voluntariness of appellant’s guilty plea and raised an ineffective assistance of 

trial counsel claim. (Appellant’s “statement of matters complained of on 

appeal pursuant to Rule 1925[(b)],” 12/1/18 (full capitalization omitted).) On 

January 4, 2019, this court dismissed appellant’s appeal due to appellant’s 

failure to file an appellate brief. (Per curiam order, 1/4/19.) After 

consideration of appellant’s application for reconsideration, this court granted 

the application, vacated the dismissal order, and reinstated this appeal. 

(Per curiam order, 1/6/19.) 
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In his brief, appellant raises the following issue:

Was prior counsel ineffective for failing to file a timely 

petition to withdraw appellant’s guilty plea when 

appellant claims that this plea was not knowing, 

intelligent nor voluntary?

Appellant’s brief at 5 (boldface and full capitalization omitted).

Preliminarily, we address the untimely filing of appellant’s Rule 1925(b) 

statement, which challenged the voluntariness of appellant’s plea and raised 

an ineffective assistance of trial counsel claim. (Appellant’s “statement of 

matters complained of on appeal pursuant to Rule 1925B,” 12/1/18 (full 

capitalization omitted).) Pursuant to Commonwealth v. Burton, 973 A.2d 

428 (Pa.Super. 2009), the late filing of a Rule 1925(b) statement is per se

ineffectiveness of Attorney Amoriello that would otherwise require a remand 

for the trial court to have an adequate opportunity to address the issue raised 

on appeal. Id. at 433; see also Pa.R.A.P. 1925(c)(3). Here, however, a 

remand is not necessary because appellant’s ineffective assistance of trial 

counsel claim, which is his sole issue on appeal, is not cognizable on direct

appeal.2 It is well settled that, absent circumstances not present in this case, 

ineffective assistance of counsel claims are to be deferred to collateral review. 

Commonwealth v. Reid, 117 A.3d 777, 786 (Pa.Super. 2015); see also

Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013).

 

2 We note that the trial court fully addressed appellant’s challenge to the 

voluntariness of his plea. (See “written response to superior court’s 

October 18, 2018 order and 1925(a) opinion,” 10/23/18 at 4-6 (full 

capitalization omitted).)
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Judgment of sentence affirmed without prejudice to any rights appellant 

may have under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/9/19