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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

MEMORANDUM BY BENDER, P.J.E.:                      FILED OCTOBER 30, 2014

        Appellant, Michael J. Duncan, appeals from his sentence of life

imprisonment1 imposed following his conviction for first degree murder and

criminal conspiracy. Appellant presents numerous questions for our review.

However, we conclude that Appellant has waived all his claims due to his

failure to comply with Pa.R.A.P. 1925(b)(4). Accordingly, we affirm.

        The trial court summarized the facts adduced at trial as follows:

           John Lynn Newman (“Newman”) was shot to death on
        February 3, 2003, in California, Pennsylvania. On January 24,
        2012, a jury found that Newman’s death was the result of a
        conspiracy and/or solicitation between John Ira Bronson, Jr.
        (“Bronson”) … and his co-defendant at trial, [Appellant]. Any
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  Appellant was also sentenced to a consecutive term of 15–30 years’
incarceration.
J-A19001-14


     complete summary of the facts for the intervening nine years
     must begin with the circumstances that led to this conspiracy
     and/or solicitation.

        In 2002, Newman was approached by the PSP [(Pennsylvania
     State Police)] and informed “that he had been investigated and
     [that] felony drug charges against him [were] pending.” In
     October of that year, Trooper Aaron Borello (“Trooper Borello”)
     approached Newman about becoming a confidential informant
     (“C.I.”) for the PSP. Trooper Borello and Newman then set
     about performing a buy/bust involving Newman’s supplier,
     Bronson.     After Bronson was observed selling 200 pills of
     Oxycodone to Newman, he was arrested. The PSP searched
     Bronson’s home and found about $384,000 in cash which was
     seized.1

                                __________
        1
          Bronson eventually pled guilty to drug trafficking and was
        incarcerated.
                               __________

        After his arrest, Bronson began acting as a C.I., first with the
     PSP and then for the Federal Bureau of Investigation (“F.B.I.”).
     While working with the PSP, Bronson asked Trooper Borello
     directly if it was Newman who had informed on him.
     Unfortunately, Bronson’s participation as a C.I. was fruitless and
     ended “within a week” prior to Newman's death.

        At some point after Bronson’s arrest, [Appellant] spoke with
     his associate, Howard Irwin (“Irwin”), about another man,
     “[Michael] Bowman (“Bowman”), having some type of hookup
     where he [could] make some money … taking care of [an
     unnamed] snitch.” Irwin then witnessed, at his home, a meeting
     between [Appellant], Bronson, and Bowman, a drug dealer and
     associate of Bronson.    During the meeting, Bronson asked
     [Appellant] to kill Newman and [Appellant] agreed. Bronson
     asked Bowman to cooperate in the killing, but Bowman declined.

        Prior to Newman's death, Robert Bedner (“Bedner”) called
     Brian Dzurco (“Dzurco”). Phone records revealed that the call
     occurred on January 20, 2003, about two weeks before the
     death of the victim. Bedner put Bronson on the phone with
     Dzurco, who asked Dzurco to set up a meeting with Newman.
     Dzurco agreed because he believed the matter to be related to a
     drug debt. After receiving information that the meeting might

                                    -2-
J-A19001-14


     be fatal for Newman, Dzurco chose not to arrange it. Shawn
     Geletei (“Geletei”) testified that, while in jail, [Appellant]
     approached him and bragged about his intention to murder
     Newman.      He recalled that the conversation was prior to
     Newman's death. Geletei specifically testified:

       [Appellant] come over and asked if I knew Newman. I
       said, yeah. He says, I'm going to take his ass out. And he
       started saying something about Bronson and drugs and all
       this. I said, I'm only in here [in jail] for child support, I
       don't want to get involved in this. And he kept on running
       his mouth saying about him being a monster and taking
       people out before and all this.

        Through phone records and witness testimony, the following
     timeline of February 3, 2003, being the day of the killing, was
     revealed:

         At 7:32 p.m.[,] a call was made from Newman's cell phone to
     Brian Horner (“Horner”), which lasted 3 minutes and 19 seconds.
     Sometime before 8:00 p.m.[,] Newman asked his wife for
     $300.00, ostensibly for cartons of cigarettes, but was, most
     likely, to buy heroin. At 7:56 p.m.[,] a call was made from
     Newman's cell phone to Horner, which lasted 1 minute and 9
     seconds. Sometime after receiving the money, Newman left the
     house. He met Geletei in the alley between their houses to
     discuss acquiring Oxycodone. Geletei told Newman that he could
     not locate any Oxycodone. Newman told Geletei that he was
     going to meet Horner.

         Upon returning home, Newman informed his wife that Horner
     needed a ride and he left again. At 8:08 p.m.[,] Newman called
     a drug client named Amelia Pajerski (“Pajerski”).            At
     approximately 8:30 p.m.[,] Newman sold Pajerski stamp bags of
     heroin. He told Pajerski that the heroin was from Horner.
     Pajerski specifically recalled being home in time to watch a
     favorite show by 9:05 p.m. At approximately 9:00 p.m.[,]
     Newman's daughter heard the distinctive sound of her father's
     car pass by their house.       At 9:03 p.m.[,] Newman called
     Geletei's landline, which lasted for 6 seconds.     Thereafter,
     Newman was killed by a bullet fired at close range while he was
     sitting in his car, which was parked down the street from his
     home.

         Next, the record reveals the events of February 4, 2003, as
     follows: Early in the morning, Newman's daughter noticed his car

                                   -3-
J-A19001-14


     parked down the street from their house. She observed her
     father inside the car, but the car door was locked.         Upon
     returning to the car with Mrs. Newman, they found the victim
     dead and contacted the authorities. The police searched the
     scene and located a spent bullet casing inside the car, and an
     unfired cartridge outside of the vehicle. Newman had $115.00 in
     cash, a marijuana “roach”, a cell phone, and ten packets of
     heroin. Around 12:00 p.m.[,] Ryan Givens called [Appellant] to
     inform him that Newman had been killed, to which [Appellant]
     responded, “snitches get dealt with.”       The authorities took
     Horner in for questioning and tested his hands for gunshot
     residue. The results allowed the tester to state “that [Horner]
     could have fired a gun, could have come in contact with
     something that had gunshot primer residue on it,” or “that
     [Horner] was in very close proximity to a firearm when it was
     discharged.”

        It took several years for charges to be filed in this “cold
     case[.”] The relevant events of the years are summarized
     herein:

        In March, 2003, Irwin asked [Appellant] to wire money to him
     while on vacation. The money, being $931.00, was transferred
     on March 10, 2003. Also in early March, [Appellant] appeared
     early one morning at the home of his drug associate, Gerald Hull
     (“Hull”). Hull’s home was used to cook and store crack cocaine.
     [Appellant] opened a safe located within the Hull residence, to
     which only he and Irwin had access. At that time, [Appellant]
     was heard making a call. The exact nature of the call was
     unclear. However, Hull, who was admittedly high on crack at the
     time, recalled hearing [Appellant] speak about shooting
     someone. [Appellant], who appeared “giddy, nervous, [and]
     agitated,” pointed a gun in Hull's face before leaving.

        When Irwin later returned from vacation, he discovered that
     [Appellant] had “disappeared[.”] Irwin f[ound] that the safe had
     been emptied. The safe’s contents, being money, drugs and a
     nine millimeter (9 mm) pistol, were missing, and only a cell
     phone was left behind.

        In April of 2003, while on furlough, Bowman spoke with
     [Appellant], who told Bowman that he killed Newman, and
     explained the manner in which he did it.       [Appellant] told
     Bowman that he was in the rear of Newman's car and shot him
     in the left ear. Between April and June of 2003, Bowman had a


                                  -4-
J-A19001-14


     three-way call with a woman and [Appellant]. Again, [Appellant]
     admitted that he killed Newman.2

                              ___________
       2
         The Court notes that the testimony regarding this call
       was elicited from Bowman on cross-examination. Defense
       counsel asked Bowman “you are saying … that [Appellant]
       made a three-way call in a recorded jail call where he
       goes, yeah, that's right, I killed that guy; is that what you
       are saying to the jury?” Bowman answered "That’s exactly
       what l’m telling the jury.”
                               ___________

        In September of 2003, PSP Trooper James Monkelis (“Trooper
     Monkelis”) and Trooper Beverly Ashton (“Trooper Ashton”)
     interviewed [Appellant].     He denied having ever been in
     California, PA, and denied knowing Newman. When told of
     Newman's death, [Appellant] said that he did not “whack” him,
     despite not being told the nature of Newman's death.3
     [Appellant] also identified Newman as a snitch. Newman's role
     as a C.I. had not been released to the public. [Appellant] made
     other inculpatory statements, such as:

       1. Stating that “hypothetically” someone, implying
       Newman, owed someone else, implying Bronson, a lot of
       money.

       2. Stating that he could not do the time and worrying that
       he would rather not be 45, 46 or 46, 47 at the clubs.”

       3. In response to the interviewer stating that it might have
       been self-defense, he stated “come on, man, you seen that
       crime scene, it couldn’t have been self[-]defense.”4

                              ___________
       3
         The Court notes that it was public knowledge that
       Newman had been killed.
       4
         The Court notes that no crime scene photos had been
       released at the time of the interview.
                              ___________

        In late 2003, a former corrections officer, Eric DeLong
     (“DeLong”), encountered [Appellant] in a bar.        DeLong
     overheard [Appellant] state, “yeah, I popped that guy in the

                                   -5-
J-A19001-14


      back of the head [in] California.” A few days later, DeLong
      reported this incident to the PSP, who put him in touch with the
      FBI. Despite this report, DeLong “didn’t hear anything for,
      approximately, seven years.”

          Approximately two and a half years after Irwin first
      discovered that [Appellant] had fled California, PA, he finally
      spoke to [Appellant]. When Irwin asked [Appellant] why he had
      left California, PA, [Appellant] gave his reasons, admitting to
      killing Newman and also to Horner’s involvement. [Appellant]
      told Irwin that “Brian Horner was running [Appellant’s] name
      about being involved in the homicide and [Horner] was actually
      the one that ... brought [Newman] out [of] the house and …
      brought him to the car. And [Appellant] was in the car and
      [Appellant] whacked [Newman].” [Appellant] went on to tell
      Irwin that he “whacked,” or killed, Newman because he was a
      “snitch".

         In January 2011, [Appellant] was arrested in Amherst, Ohio.
      He was interviewed again by Trooper Monkelis[,] and again
      made inculpatory statements. He stated that “snitches get dealt
      with.” He stated that “he never owned or carried that caliber of
      a weapon.”5 After the interview, [Appellant] was transported
      back to Pennsylvania. [Appellant], while en route, spoke in
      further detail about his views on snitches, saying that even “God
      doesn't like snitches.”

         In August of 2011, Bronson was housed in the Washington
      County Correctional Facility ("WCCF") in connection with being
      charged in this case. In December of 2011, Bronson admitted to
      Michael McCarthy, a fellow inmate, that he attended the 2002
      meeting with [Appellant] and Bowman at Irwin's house. He
      admitted that the meeting concerned “offing[,”] or killing,
      Newman.      McCarthy then reported the conversation to the
      authorities.

                                __________
         5
           The Court notes that the caliber of the weapon was never
         released.

Trial Court Opinion (TCO), 3/26/13, at 3-8 (internal citations omitted).

      The charges against Appellant were initiated by a Washington County

Grand Jury Presentment dated December 8, 2010.              The Presentment

                                     -6-
J-A19001-14



recommended that the Commonwealth charge Appellant, Bronson, and Irwin

for their participation in a conspiracy to kill Newman. On January 13, 2011,

the Commonwealth charged Appellant with first degree murder and criminal

conspiracy.     Appellant filed numerous pre-trial motions on September 22,

2011, and the Commonwealth filed a motion to consolidate the three

pending cases against Appellant, Bronson, and Irwin on September 30,

2011. Following argument held on October 21, 2011, the trial court issued

an order on October 25, 2011, granting the Commonwealth’s motion to

consolidate. Following a hearing and argument held on October 27, 2011,

the trial court issued an order, dated October 31, 2012, denying and/or

granting all then-pending defense motions.2

       Irwin reached an agreement with the Commonwealth prior to trial,

permitting him to plead guilty to a lesser charge in exchange for his

testimony against Appellant and Bronson.           His plea was entered on

December 14, 2011.         On January 11, 2012, a jury trial for Appellant and

Bronson commenced.           The jury reached a verdict on January 24, 2012,

finding Appellant guilty of first degree murder and criminal conspiracy. On

March 2, 2012, the trial court sentenced Appellant to a mandatory term of

life imprisonment for first degree murder, and a consecutive term of 15-30


____________________________________________


2
  Additional defense motions were filed on January 12, 2012, seeking
suppression of Appellant’s recorded statements. That motion was denied on
January 14, 2011.



                                           -7-
J-A19001-14



years’ incarceration for criminal conspiracy. Appellant did not file any post-

sentence motions. He filed a timely notice of appeal on March 22, 2012.

        The trial court ordered Appellant to file a Rule 1925(b) concise

statement of errors complained of on appeal (concise statement) on April 2,

2012.     Appellant’s trial counsel was granted two continuances to file a

concise statement. Appellant’s counsel was then permitted to withdraw his

representation of Appellant by order dated August 22, 2012. In that same

order, the trial court appointed Jeffrey Watson, Esq., to file a Rule 1925(b)

statement and represent Appellant on appeal. On October 9, 2012, Attorney

Watson filed a 20-page concise statement, in which 57 claims were raised.

On January 2, 2013, the trial court issued an order permitting Attorney

Watson to withdraw as Appellant’s counsel as he had accepted a position as

an administrative law judge. In that same order, the trial court appointed

Mary Bates, Esq. to represent Appellant.     On July 2, 2013, the trial court

also granted Attorney Bates leave to withdraw as Appellant’s counsel.      In

that same order, the court appointed current counsel, Molly Maguire Gaussa,

Esq., to represent Appellant.

        Attorney Bates filed a motion to withdraw as Appellant’s counsel with

this Court on June 6, 2014.       For the reasons that follow, and because

Appellant has not been abandoned and is currently represented by Attorney

Gaussa, we hereby grant Attorney Bates’ motion to withdraw.




                                     -8-
J-A19001-14



      Attorney Bates is the third attorney to seek to withdraw from

representing Appellant since Appellant filed his notice of appeal. However,

only Attorney Bates, to her credit, has petitioned this Court for permission to

do so.     The question arises, however, whether the trial court had

jurisdiction, after Appellant filed his notice of appeal, 1) to permit trial

counsel to withdraw; 2) to appoint Attorney Watson; 3) to permit Attorney

Watson to withdraw; 3) to appoint Attorney Bates; 4) to permit Attorney

Bates to withdraw; and 5) to appoint Attorney Gaussa.           (Hereinafter, we

refer to these orders, collectively, as the “actions of the trial court.”) This is

because “[j]urisdiction is vested in the Superior Court upon the filing of a

timely notice of appeal.” Commonwealth v. Nahavandian, 954 A.2d 625,

629 (Pa. Super. 2008) (citing Commonwealth v. Miller, 715 A.2d 1203,

1205 (Pa. Super. 1998).        Accordingly, Pa.R.A.P. 1701(a) dictates that

“[e]xcept as otherwise prescribed by these rules, after an appeal is taken or

review of a quasijudicial order is sought, the trial court or other government

unit may no longer proceed further in the matter.” Arguably, then, it could

be contended that the actions of the trial court were undertaken while

jurisdiction was lacking.

      However, Section (b) of Rule 1701 provides exceptions to the rule set

forth in section (a) of Rule 1701. Section (b)(1) permits a trial court to take

      such action as may be necessary to preserve the status quo,
      correct formal errors in papers relating to the matter, cause the
      record to be transcribed, approved, filed and transmitted, grant
      leave to appeal in forma pauperis, grant supersedeas, and take


                                      -9-
J-A19001-14


      other action permitted or required by these rules or otherwise
      ancillary to the appeal or petition for review proceeding.

Pa.R.A.P. 1701(b)(1).

      Here, we believe the actions of the trial court were permissible

because they were “ancillary” to this appeal.          See Pa.R.A.P. 1701(b)(1).

Notably, the orders of the trial court did not permit Appellant’s attorneys to

withdraw under circumstances where Appellant would have been left

unrepresented without further action on the part of Appellant or the court.

Furthermore, the reasons for the withdrawals did not relate to the claims for

which relief is sought.    Conversely, when the withdrawal of counsel even

arguably    implicates    Anders   v.    California,    386   U.S.   738   (1967),

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v.

Finley, 550 A.2d 213 (Pa. 1988), and/or Commonwealth v. Grazier, 713

A.2d 81 (Pa. 1998), the withdrawal of counsel is not an ancillary matter and

the trial court is devoid of jurisdiction to permit withdrawal following the

filing of a notice of appeal.   In such cases, the trial court must follow the

dictates of Anders, Turner/Finley, Grazier, related cases, and their

progeny.

      We now turn to address the claims presented by Appellant.             In his

brief, Appellant presents the following issues for our review:

           1. The trial court erred when it considered the testimonial
              evidence of numerous witnesses who lacked credibility,
              reliability and the evidence was unsubstantiated; the
              verdict of the jury is against the evidence when it
              considered the testimony of the unreliable witnesses.



                                        - 10 -
J-A19001-14


          2. The trial court erred when it denied Defense counsels [sic]
             numerous Motions for Suppression, Motion to Sever,
             Motion in Liminie [sic], and Motion for a Mistrial.

          3. The trial court erred in admitting irrelevant and unfairly
             prejudicial evidence.

          4. The Commonwealth did not present sufficient evidence to
             sustain a conviction on all charges.

          5. The trial court erred in allowing the Commonwealth to
             present prior bad acts through witness testimony.

          6. The trial court erred in allowing a non[-]redacted transcript
             to be reviewed by the jury, thus causing a prejudicial
             effect.

Appellant’s Brief at 8-9.

      As a preliminary matter, we address the question of whether

Appellant’s concise statement complied with the dictates of Rule 1925(b).

Rule 1925(b) states, in pertinent part, as follows:

      (b) Direction to file statement of errors complained of on
      appeal; instructions to the appellant and the trial court.--
      If the judge entering the order giving rise to the notice of appeal
      (“judge”) desires clarification of the errors complained of on
      appeal, the judge may enter an order directing the appellant to
      file of record in the trial court and serve on the judge a concise
      statement of the errors complained of on appeal (“Statement”).

      …

          (4) Requirements; waiver.

             (i) The Statement shall set forth only those rulings or
             errors that the appellant intends to challenge.

             (ii) The Statement shall concisely identify each ruling or
             error that the appellant intends to challenge with
             sufficient detail to identify all pertinent issues for the
             judge.    The judge shall not require the citation to
             authorities; however, appellant may choose to include
             pertinent authorities in the Statement.


                                      - 11 -
J-A19001-14


           (iii) The judge shall not require appellant or appellee to
           file a brief, memorandum of law, or response as part of
           or in conjunction with the Statement.

           (iv) The Statement should not be redundant or provide
           lengthy explanations as to any error.        Where non-
           redundant, non-frivolous issues are set forth in an
           appropriately concise manner, the number of errors
           raised will not alone be grounds for finding waiver.

           (v) Each error identified in the Statement will be
           deemed to include every subsidiary issue contained
           therein which was raised in the trial court; this provision
           does not in any way limit the obligation of a criminal
           appellant to delineate clearly the scope of claimed
           constitutional errors on appeal.

           (vi) If the appellant in a civil case cannot readily discern
           the basis for the judge's decision, the appellant shall
           preface the Statement with an explanation as to why
           the Statement has identified the errors in only general
           terms. In such a case, the generality of the Statement
           will not be grounds for finding waiver.

           (vii) Issues not included in the Statement and/or not
           raised in accordance with the provisions of this
           paragraph (b)(4) are waived.

Pa.R.A.P. 1925(b) (underlined emphasis added).

     In Kanter v. Epstein, 866 A.2d 394 (Pa. Super. 2004), this Court

determined that the appellants waived all of the claims raised in their Rule

1925(b) statements “[b]y raising an outrageous number of issues.” Id. at

401. We explained:

     The Defendants' failure to set forth the issues that they sought
     to raise on appeal in a concise manner impeded the trial court’s
     ability to prepare an opinion addressing the issues that the
     Defendants sought to raise before this Court, thereby frustrating
     this Court's ability to engage in a meaningful and effective
     appellate review process. See Commonwealth v. Steadley,
     748 A.2d 707, 709 (Pa. Super. 2000); see also
     Commonwealth v. Kimble, 756 A.2d 78, 80 (Pa. Super. 2000).

                                    - 12 -
J-A19001-14


       By raising an outrageous number of issues, the Defendants have
       deliberately circumvented the meaning and purpose of Rule
       1925(b) and have thereby effectively precluded appellate review
       of the issues they now seek to raise.

Id.

       This Court also found that the appellants waived all of the claims

raised in their Rule 1925(b) statement for similar reasons in Tucker v. R.M.

Tours, 939 A.2d 343 (Pa. Super. 2007). In that case, we explained:

       In the case sub judice, we conclude [the a]ppellants have
       engaged in misconduct when they “attempted to overwhelm the
       trial court by filing [a] Rule 1925(b) Statement ... that contained
       a multitude of issues that [Appellants] did not intend to raise
       and/or could not raise before this Court.” Kanter, 866 A.2d at
       402.      Appellants' initial court-ordered Pa.R.A.P. 1925(b)
       statement … consisted of sixteen pages, with seventy-six
       paragraphs …, plus exhibits.        Our review of the statement
       reveals that [the a]ppellants raised a voluminous number of
       lengthy issues, which created confusion for the trial court. We
       conclude that this conduct on the part of [the a]ppellants
       breaches their duty of good faith and fair dealing with the Court
       and constitutes a course of misconduct which is designed to
       “undermine the Rules of Appellate Procedure.” Id. Accordingly,
       … we find [the a]ppellants' issues on appeal to be waived.

Tucker, 939 A.2d at 346-47.

       In the present case, Appellant filed a Rule 1925(b) statement

containing 57 issues spanning approximately 20 pages. Many of the issues

raised therein contain multiple sub-parts and excessive explanations

regarding the alleged errors.3 Numerous other issues specify the nature of

____________________________________________


3
  For instance, some of the claims contained in Appellant’s Rule 1925(b)
statement reached a full page in length:

(Footnote Continued Next Page)


                                          - 13 -
J-A19001-14



                       _______________________
(Footnote Continued)

      The trial court erred/abused its discretion in denying Defendant's
      omnibus pretrial motion - Motion to Suppress Extra Judicial Oral
      Statements as set forth in the written motion, where Troopers
      Monkalis and Ashton went to Ohio to interview Defendant
      Duncan and where a statement was alleged to have been given
      by Defendant Duncan which was never videotaped, audiotaped
      or reduced to writing, however Trooper Monkalis claims that he
      took notes and admitted that the notes no longer existed and
      the alleged notes of Corporal Ashton no longer existed. Trooper
      Monkalis allegedly asked Defendant Duncan about the alleged
      homicide and allegedly obtained incriminating responses. Said
      extrajudicial statements should have been suppressed as there
      was no evidence of a signed Miranda waiver form, Trooper
      Monkalis was unable to provide a specific date as to when the
      alleged interview took place other than giving a month and a
      year, stating on cross-examination that he believed that possibly
      might have occurred, and Trooper Monkalis claimed that there
      was a written and executed Miranda waiver form then stated he
      basically said Defendant would not sign anything, the 2
      statements being in direct contradiction of each other. The
      alleged statements and notes of Trooper Monkalis which have
      been destroyed, are inherently unreliable and Trooper Monkalis
      contradicted himself through direct and cross-examinations from
      whether or not he took notes, to whether or not Corporal Ashton
      took notes and to whether Michael Duncan, the Defendant, said
      that the deceased was whacked as to hypothetically saying
      someone owes someone a lot of money. Because of the myriad
      of contradictions, the refusal to be [sic] Miranda, the law so
      notes [sic], the inconsistencies of Trooper Monkalis[’] report and
      the unexplainable loss of Corporal Ashton's notes, the inability to
      know whether Corporal Ashton even took notes and the lack of
      caution to audiotape, videotape or reduce in writing the alleged
      interview indicates that the alleged statements lacked the
      sufficient indicia of credibility to be used at the trial of this
      matter. The alleged statements of Defendant Michael Duncan
      are contaminated for all the above reasons and should not have
      been allowed at the trial of this matter.

Appellant’s Concise Statement, 10/9/12, at ¶ 42.




                                           - 14 -
J-A19001-14



the claim concisely but fail to identify pertinent information such as the

location in the record where the claim arose or the particular piece of

evidence    being    contested.4        Consequently,   the   trial   court   “strongly

considered applying the doctrine of waiver based on the number and

vagueness of issues presented in [Appellant’s Rule 1925(b) statement], but

decided to address the non-redundant, non-frivolous issues to the best of its

ability….” TCO, at 13 n.7.

       Although the trial court declined to find waiver, we are not bound by

its determination in this regard. “[T]he issue of waiver based on a violation

of Rule 1925(b) is expressly reserved to the appellate courts, and not to the

trial courts.” Commonwealth v. Donahue, 630 A.2d 1238, 1242-43 (Pa.

Super. 1993).       Here, we ascertain that Appellant’s disregard of both the

spirit and explicit text of Rule 1925(b)(4) is too egregious to be overlooked,

despite the trial court’s valiant efforts at tackling Appellant’s claims in its

Rule 1925(a) opinion. Accordingly, we conclude that all of the claims raised

in Appellant’s Rule 1925(b) statement have been waived for his failure to

comply with Rule 1925(b)(4), and we affirm his judgment of sentence on
____________________________________________


4
  For example, in his concise statement, Appellant asserted that “[t]he trial
court erred/abused its discretion in denying the request for a jury instruction
regarding inflammatory photos charged under the circumstances based upon
the admission of the photographs introduced by the Commonwealth in this
case.”    Appellant’s Concise Statement, 10/9/12, at ¶ 37.           However,
Appellant’s allegation of error failed to specifically identify the contested
photographs, such as by listing the photographs’ exhibit numbers or simply
by describing them.



                                          - 15 -
J-A19001-14



that basis.5      See Pa.R.A.P. 1925(b)(4)(vii) (“Issues … not raised in

accordance with the provisions of this paragraph (b)(4) are waived.”).

         Judgment of sentence affirmed.

         Judge Olson concurs in the result.

         Justice Fitzgerald files a concurring statement in which Judge Olson

joins.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/30/2014




____________________________________________


5
  Nevertheless, were we to reach the claims that Appellant raised in his brief
to this Court, we would affirm based upon the trial court’s well-reasoned
Rule 1925(a) opinion.



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