J-A19001-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                           Appellee

                      v.

MICHAEL J. DUNCAN

                           Appellant                      No. 541 WDA 2012


         Appeal from the Judgment of Sentence Entered March 2, 2012
             In the Court of Common Pleas of Washington County
             Criminal Division at No(s): CP-63-CR-0000357-2011

BEFORE: BENDER, P.J.E., OLSON, J. and FITZGERALD, J.*

CONCURRING STATEMENT BY FITZGERALD, J.: FILED OCTOBER 30, 2014

        I respectfully concur in the majority’s determination that Appellant

waived all of his direct appeal claims based on his counseled Pa.R.A.P.

1925(b) Statement. I write separately to observe that I do not reach this

conclusion based solely on the length of Appellant’s Statement or number of

issues raised.     Instantly, the Statement sub judice frustrated meaningful

appellate review because it also scattered subsidiary arguments throughout

its fifty-seven paragraphs without any logical organization, contained

frivolous and waived issues, and was prolix. Thus, despite the trial court’s

best efforts to address all claims presented in the Statement, I agree that

waiver     of   Appellant’s   issues   on   appeal   is   appropriate   under   the



*
    Former Justice specially assigned to the Superior Court.
J-A19001-14


circumstances of this case.1 See Pa.R.A.P. 1925(b)(4)(iv), (vii).

     Moreover, I do not join footnote 5 of the majority’s memorandum,

which suggests an alternative basis to affirm based on the trial court’s

opinion. I believe that footnote 5 is dictum that does not constitute the law

of the case for the purposes of a proceeding under the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. See generally Commonwealth v.

Reed, 971 A.2d 1216, 1260 (Pa. 2009).

     Judge Olson joins this concurring statement.




1
  I would further observe that even if Appellant did not waive his claims
based on his defective Rule 1925(b) Statement, his counseled brief fares no
better than his Statement at preserving his intended issues and arguments.



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