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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
ALANAH F.F. PETERS,                     :         No. 2176 EDA 2015
                                        :
                       Appellant        :


           Appeal from the Judgment of Sentence, June 2, 2015,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0001270-2012


BEFORE: BOWES, J., DUBOW, J. AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED APRIL 17, 2017

     Alanah F.F. Peters appeals from the judgment of sentence entered in

the Court of Common Pleas of Philadelphia County after a jury convicted her

of attempted murder, aggravated assault, robbery, conspiracy to commit

murder, possession of an instrument of crime, recklessly endangering

another person, and two firearms violations.1    The trial court imposed an

aggregate sentence of 13 to 30 years of imprisonment. We are constrained

to remand due to appellate counsel’s dilatory conduct.

     The record reflects that on July 20, 2015, trial counsel filed a timely

notice of appeal to this court. By order docketed November 11, 2015, the

trial court directed appellant to file a statement of errors complained of on


1
  18 Pa.C.S.A. §§ 901(a), 2702(a), 3701(a)(1)(ii), 903, 907(a), 2705,
6106(a)(1), and 6108, respectively.
J. S15036/17


appeal pursuant to Pa.R.A.P. 1925(b) within 21 days. That order was served

on trial counsel.   Appellant failed to file a Rule 1925(b) statement.        On

January 20, 2016, the trial court filed an amended order that directed

appellant to file a Rule 1925(b) statement within 21 days. That order was

served on appellate counsel.        Appellant failed to file a Rule 1925(b)

statement.   On February 12, 2016, the trial court filed an amended order

that again directed appellant to file a Rule 1925(b) statement no later than

April 1, 2016. That order was served on appellate counsel.

      The record next reflects that on April 13, 2016, the trial court granted

appellant’s motion for extension to file the Rule 1925(b) statement and

ordered that appellant file the statement within 30 days. Appellant failed to

comply. On May 26, 2016, the trial court filed a short Rule 1925(a) opinion

noting appellant’s failure to file a Rule 1925(b) statement and concluding

that a careful review of the record revealed no issues of plausible merit and

that it deemed appellant’s issues waived for appellant’s failure to file a

Rule 1925(b) statement. (Trial court opinion, 5/26/16 at 3.) The trial court

further noted that, “[a]lternatively, it is clear from this court’s review of the

facts presented at [appellant’s trial], the evidence to support the verdict is

overwhelming.” (Id. at 4.)

      The trial court record was then transmitted to this court on June 2,

2016. On August 22, 2016, this court dismissed appellant’s appeal because

appellant failed to file a brief. On September 16, 2016, this court granted



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appellant’s application to reinstate the appeal. Then, on October 16, 2016,

appellant filed a Rule 1925(b) statement with the trial court wherein she

raised seven issues for this court’s review. We decline to reach the merits of

appellant’s issues.

      Pennsylvania Rule of Appellate Procedure 1925(c)(3) provides:

            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.

Pa.R.A.P. 1925(c)(3).   In Commonwealth v. Scott, this court held that

where “the [a]ppellant has completely failed to file a Rule 1925(b) statement

as directed . . . counsel has been per se ineffective.” 952 A.2d 1190, 1192

(Pa.Super. 2008).     In Scott, this court remanded for preparation of a

Rule 1925(b) statement and a Rule 1925(a) opinion because the trial court

had not prepared a Rule 1925(a) opinion. Id.

      Here, appellate counsel disregarded the trial court’s orders directing

him to file a concise statement and, therefore, has been per se ineffective.

And while the trial court authored a Rule 1925(a) opinion, it could not

address the issues that appellant now raises because appellate counsel failed

to alert the trial court to the errors complained of on appeal.      In fact, for

reasons unknown, counsel filed a Rule 1925(b) statement nearly five months

after the trial court filed its Rule 1925(a) opinion.     Therefore, we are

constrained to remand to the trial court for the preparation of an opinion


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that addresses the seven issues appellant raised in her October 16, 2016

Rule 1925(b) statement, to be filed within 60 days.

      Remanded for further proceedings consistent with this memorandum.

Jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/17/2017




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