J-S69013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CARNELL GREEN                              :
                                               :
                       Appellant               :   No. 2280 EDA 2018

        Appeal from the Judgment of Sentence Entered February 12, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0012283-2014


BEFORE:      SHOGAN, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY SHOGAN, J.:                               FILED MARCH 06, 2020

        Appellant Carnell Green appeals from the judgment of sentence entered

on February 12, 2018. After careful review, we find that Appellant’s Pa.R.A.P.

1925(b) statement is so deficient that it precludes merit review of all appellate

issues and constitutes ineffectiveness of counsel per se. Thus, we remand for

further proceedings consistent with this Memorandum.

        The trial court set forth the following factual summary:

              During the course of a two-day trial, [Appellant’s]
        stepdaughter, A.E., testified to [Appellant’s] lengthy history of
        sexual abuse towards her – a series of events that began when
        A.E. was about eight years old and continued until she was eleven.
        A.E. described several occasions when [Appellant] took A.E. to the
        bathroom and forced her to perform oral sex on him. On one
        occasion when A.E. was ten, [Appellant’s] behavior escalated;
        A.E. testified that [Appellant] went into her bedroom, undressed
        her, and tried to force his penis into her vagina. A.E. explained
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*   Retired Senior Judge assigned to the Superior Court.
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       that the incident was very physically uncomfortable and caused
       her to feel “pressure and pain” in her vaginal area. At some point,
       when A.E. was eleven years old, [Appellant] moved out of her
       family’s home. Shortly after he moved, [Appellant] called A.E. on
       her mother’s cellphone. During their conversation, [Appellant]
       told A.E. that he was going to book a hotel room for the two of
       them; he also asked her whether she “remembered what he
       taught her” and told her that he wanted her “to show him what he
       taught her.” A.E. did not see or hear from [Appellant] after that
       phone call.

Trial Court Opinion, 3/14/19, at 2 (internal citation omitted). Eventually A.E.

reported the abuse and Appellant was arrested shortly thereafter. Appellant

was tried before a jury and found guilty of rape of a child, involuntary deviate

sexual intercourse with a child, unlawful contact with a minor, endangering

the welfare of a child, indecent assault of a person less than thirteen years of

age, and indecent exposure.1 On February 12, 2018, the trial court sentenced

Appellant to an aggregate sentence of fifteen to thirty years of incarceration,

followed by fifteen years of reporting probation.

       Following a filing error by Appellant’s appointed trial counsel, Appellant’s

appellate rights were reinstated nunc pro tunc by the trial court on July 10,

2018. Order, 7/10/18.2 Appellant filed a notice of appeal on July 12, 2018,



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1 18 Pa.C.S. §§ 3121(c), 3123(b), 6318(a)(1), 4304(a)(1), 3126(a)(7) and
3127(a), respectively.

2 On May 1, 2018, Appellant’s then-appointed trial counsel filed a motion to
withdraw as counsel. It appears from the certified record that the trial court
granted the motion that day. Appellant has been represented by new
appointed counsel, J. Matthew Wolfe, throughout the course of the instant
appeal.

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and filed an amended notice of appeal on July 20, 2018.           The trial court

ordered Appellant to file his Pa.R.A.P. 1925(b) Statement of Matters

Complained of on Appeal within twenty-one days of the filing of the order.

Order, 7/24/18. Appellant sought and received an extension from the trial

court and timely filed his Rule 1925(b) statement on February 14, 2019.

Therein, Appellant set forth the following questions:

      1. At trial the evidence presented against [Appellant] was very
         vague and sketchy, including not a single specific date or time
         of any incident, and lacking in particularity to justify the
         prosecution.

      2. The lack of specificity prevented [Appellant] from locating alibi
         witnesses or to present an adequate defense.

Appellant’s Statement of Matters Complained of on Appeal Pursuant to

1925(b), 2/14/19. In its opinion, the trial court found that Appellant’s Rule

1925(b) statement is “facially insufficient and fails to raise any issues that can

be meaningfully addressed by this court.” Trial Court Opinion, 3/14/19, at 2.

Because the trial court was unable to determine whether Appellant was

challenging the weight or sufficiency of the evidence or discern which

convictions Appellant was challenging on appeal, the trial court found

Appellant waived all issues for purposes of appellate review. Id. at 3.

      In his brief, Appellant presents the following question for our review:

      1. Was the evidence at trial insufficient to sustain the convictions
         as they were so vague as to when the alleged incidents
         occurred and prevented [Appellant] from mounting a defense?

Appellant’s Brief at 10.


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       Before we reach the merits of Appellant’s appeal, we must address the

deficiencies in his Rule 1925(b) statement.       It is well established in this

Commonwealth that “a Concise Statement which is too vague to allow the

court to identify the issues raised on appeal is the functional equivalent of no

Concise Statement at all.” Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa.

Super. 2006) (quoting Lineberger v. Wyeth, 894 A.2d 141, 148 (Pa. Super.

2006)). “The court’s review and legal analysis can be fatally impaired when

the court has to guess at the issues raised.” Commonwealth v. Hansley,

24 A.3d 410, 415 (Pa. Super 2011). Recently, our Supreme Court held that

waiver is mandated by Pa.R.A.P. 1925(b)(4)(vii),3 where the concise

statement

       did not identify any specific legal error committed by the PCRA
       court in its rulings on the multifarious claims of trial counsel
       ineffectiveness presented in the amended PCRA petitions, nor did
       it even identify which of those rulings were being challenged on
       appeal. Rather, it generically and capaciously encompassed every
       conceivable claim of ineffective assistance of trial counsel
       contained in the amended PCRA petitions. As such, it forced the
       PCRA court to guess which of its rulings were being challenged.

Commonwealth v. Parrish, __A.3d__, 2020 WL 355016, *14 (Pa. filed

January 22, 2020) (emphasis in original).4       Ultimately, the Parrish Court

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3 Pa.R.A.P. 1925(b)(4)(vii) provides that “[i]ssues ... not raised in accordance
with the provisions of this paragraph (b)(4) are waived.”

4 Although the procedural posture in Parrish, which arose in the PCRA
context, differs from the instant case which involves a direct appeal, the role
of Pa.R.A.P. 1925 is unchanged on direct or collateral appeal. For example,



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held that the appellant’s statement was “so wholly lacking in comportment

with 1925(b)’s basic requirements that a finding of waiver is clearly

warranted.” Id. at *15. Similarly, herein Appellant’s Rule 1925(b) statement

fails to set forth whether Appellant is challenging the weight or sufficiency of

the evidence and fails to set forth any specific legal error on behalf of the trial

court. Moreover, despite being convicted of six crimes, Appellant fails to set

forth which of those convictions from which he is appealing. As the trial court

opined, Appellant’s Rule 1925(b) statement lacked

       the requisite specificity that would allow this court to adequately
       address its decisions at trial. More specifically, it is unclear
       whether the Appellant is challenging the sufficiency and/or the
       weight of the evidence presented at trial. This court is also unable
       to determine which of the Appellant’s six convictions is/are being
       challenged on appeal. Thus, by failing to raise any concise issue
       of arguable merit, the Appellant has waived all issues for appellate
       review. . . .

Trial Court Opinion, 3/14/19, at 3.

       We agree with the trial court’s conclusion. See Commonwealth v.

Garland, 63 A.3d 339, 345 (Pa. Super. 2013) (finding waiver and noting that

“[i]n order to preserve a challenge to the sufficiency of the evidence on

appeal, an appellant’s Rule 1925(b) statement must state with specificity the

element or elements upon with the appellant alleges that the evidence was


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in Commonwealth v. Butler, 812 A.2d 631, 633 (Pa. 2002), a case arising
under the PCRA, our Supreme Court reiterated and expressly applied the
holding in a direct appeal as it related to waiver and the Rule 1925(b)
statement. Butler, 812 A.2d at 633 (citing Commonwealth v. Lord, 719
A.2d 306 (1998)).

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insufficient”); Hansley, 24 A.3d at 414 (finding waiver where 1925(b)

statement alleged that the “evidence presented by the Commonwealth was

insufficient to prove beyond a reasonable doubt that appellant was guilty of

robbery”); Commonwealth v. Lemon, 804 A.2d 34, 37 (Pa. Super. 2002)

(finding waiver where Rule 1925(b) statement “merely stated ‘the verdict was

against the evidence,’ ‘the verdict of the jury was against the weight of

evidence’ and ‘the verdict was against the law.’”). Indeed, where, as here,

“a court has to guess what issues an appellant is appealing, that is not enough

for meaningful review.” Commonwealth v. Dowling, 778 A.2d 683, 687

(Pa. Super. 2001) (quoting Commonwealth v. Butler, 756 A.2d 55, 57 (Pa.

Super. 2000)).

      Appellant’s Rule 1925(b) statement, which resulted in waiver of all of

his issues on appeal, constitutes ineffectiveness per se.     The recognized

instances of per se ineffectiveness are “extremely narrow.” Commonwealth

v. Rosado, 150 A.3d 425, 427 (Pa. 2016).          “[E]rrors which completely

foreclose appellate review amount to a constructive denial of counsel and

thus ineffective assistance per se ….”     Id. at 439 (emphasis in original).

Where per se ineffectiveness has been established, counsel’s ineffectiveness

will be presumed and need not be proven. Id. at 428–429 (citing United

States v. Cronic, 466 U.S. 648 (1984)). The failure to file a Rule 1925(b)

statement constitutes ineffectiveness of counsel per se. Commonwealth v.

Andrews, 213 A.3d 1004, 1010 (Pa. Super. 2019).              In Parrish, our


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Supreme Court held that the filing of a vague Rule 1925(b) statement, which

completely forfeited an appellant’s right to appellate review of any claims on

collateral review, constitutes ineffective assistance of counsel per se.

Parrish, __A.3d at __, 2020 WL 355016, *16.

      For the reasons set forth above, we remand this matter to the trial

court to appoint new counsel for Appellant within fourteen days from the date

of this Memorandum.        New counsel shall file a new Pa.R.A.P. 1925(b)

statement within twenty-one days of appointment. We further order the trial

court to file its Pa.R.A.P. 1925(a) opinion within thirty days of the date that

Appellant’s counsel files the Pa.R.A.P. 1925(b) statement.            Thereafter,

Appellant shall file his appellate brief within thirty days from the date that the

trial court files its opinion. The Commonwealth shall have thirty days from

the date that Appellant files his appellate brief in which to file a brief in

response.

      Case remanded for additional proceedings consistent with this decision.

Panel jurisdiction retained.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/6/20




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