J-A03045-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JAMES DOUGLAS MORGENSTERN, JR.,

                            Appellant                 No. 982 MDA 2013


             Appeal from the Judgment of Sentence May 17, 2013
              in the Court of Common Pleas of Bradford County
              Criminal Division at No.: CP-08-CR-0000570-2012


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.                             FILED AUGUST 01, 2014

        Appellant, James Douglas Morgenstern, Jr., appeals from the judgment

of sentence imposed following his conviction of one count of persons not to

possess firearms.1 We affirm.

        The trial court summarized the factual history of this matter as

follows:
              On May 16, 2012, Bradford County Sheriff Deputies, Brian
        Wibert and James Hart were traveling to Rome Borough to serve
        a bench warrant. They were in a marked vehicle and in full
        uniform. At about 3:00 p.m., while traveling through a rural
        area, they came upon a black Gran Prix sedan parked in a pull

        hour later, upon return, the vehicle was in the same position
        including the d
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 6105(a)(1).
J-A03045-14


     by, but Deputy Hart suggested they return to determine if
     anyone needed help. They pulled in by the vehicle [and] Deputy
     Wibert ran the registration number. Deputy Hart saw a female
     in the vehicle behind the steering wheel, with the seat reclined
     and [her] eyes closed. He thought he recognized her as a
     person known to him. He asked her if she was okay and she
     opened her eyes. He asked if she was Trisha Bouse, and she
     said she was Desiree Bouse, [Appe
     Hart recognized the names and [Appellant] was known to him
     from his employment as a deputy and while a guard in the
     Bradford County Correctional Facility. Deputy Hart asked what
                                                        that she was
     okay. Bouse explained that they had run out of gas and that
     [Appellant] had gone on foot to seek fuel. Deputy Hart noticed
     that the backseat of the vehicle was packed with all kinds of
     various objects, including a red plastic gas can. Therefore,
     Deputy Hart asked Bouse what [Appellant] used to go retrieve
     gas, and she responded a gas can. Deputy Hart advised her that
     there was a gas can in the back seat. Bouse looked at it and
     told him that they had two cans. Deputy Hart then told Deputy
     Wibert. Deputy Wibert advised Deputy Hart that the information
     on the registration plate did not belong to the black Gran Prix
     sedan, but rather a 1995 Jeep Cherokee. [Appellant] then
     jogged up the road towards them. He called Deputy Hart by his
     first name, and asked what was going on. [Appellant] explained
     that the vehicle had run out of gas and that he knew people in
     [the] area and tried to find gas. He did not have a gas can.
     When asked about there being no gas can, he said he would
     borrow a gas can. . . .

            Deputy Hart then advised [Appellant] of the registration
     not matching the vehicle. [Appellant] began telling the deputy
     that the car was legal. Deputy Hart was aware that [Appellant]
     had been arrested many times and had issues with [substance
     abuse]. Deputy Hart was concerned that [Appellant] was under
     the influence of drugs and asked to do a quick pat down for
     officer safety, which [Appellant] complied with. Deputy Hart
     asked if he had any sharp object[s] on him, to which [Appellant]
     replied



     Hart was aware that [Appellant] was on probation and asked him
     if he was, to which [Appellant] replied yes. Deputy Hart asked if

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J-A03045-14


         there was anything in the car they should know about, or was
         there anything illegal in the car. [Appellant] offered that there
         was a rifle in the trunk. Deputy Hart asked if they could look in
         the trunk and [Appellant] agreed. In the trunk was a rifle and a
         machete. Deputy Hart secured the rifle and machete. Deputy
         Hart believed that [Appellant] had a felony conviction and asked
         him if he did, to which [Appellant] replied yes. [Appellant] was
         not arrested at the time because Deputy Hart did not believe
         that he was a flight risk. Therefore, a summons was issued at a
         later date. . . .

(Trial Court Opinion, 8/09/13, at 1-3).

         On May 18, 2012, Deputy Hart filed a criminal complaint against

Appellant, alleging that he had committed the offense of persons not to

possess firearms.       On September 5, 2012, Appellant filed an omnibus

pretrial motion to suppress the evidence, which the trial court denied on

February 8, 2013.       Appellant filed a motion to reconsider the motion to

suppress, which the trial court denied on March 5, 2013.              The case

proceeded to a bench trial on March 22, 2013, and the court found Appellant

guilty of the above-mentioned offense.          On May 17, 2013, following

preparation of a presentence investigation report (PSI), the trial court

sentenced Appellant to a term of not less than twenty-four nor more than

forty-                                                                   appeal

on May 29, 2013.

         On May 31, 2013, in accordance with Pennsylvania Rule of Appellate

Procedure Rule 1925(b), the trial court entered an order requiring Appellant

to file a concise statement of errors within twenty-one days. See Pa.R.A.P.

1925(b).      The order provided, in bold, capital-                          SAID


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J-A03045-14


STATEMENT SHALL BE SPECIFIC AS TO WHAT CLAIMS WERE RAISED



THE CLAIMS WERE ERROR

directive may result in waiver.   (Concise Statement Order, 5/31/13, at 1)

(emphasis in original).   On June 14, 2013, Appellant timely filed a nine-

page, forty-three-paragraph-long Rule 1925(b) statement.            (See Rule

1925(b) Statement, 6/14/13, at 1-9). The trial court filed a Rule 1925(a)

opinion on August 9, 2013.




review:

     I. Did the trial court err in finding the investigation and search

     jurisdiction?

           A. Are sheriffs and their deputies vested with the
           authority to enforce and/or investigate violations of
           the [Vehicle Code] that do not rise to the level of
           breaches of the peace?

           B. Did the trial court err in finding the warrantless
           search of [Appellant] and his vehicle constitutional?

     II. Did the trial court err in finding [the] sheriff deputies did not
     exceed their authority by prosecuting [Appellant] under 18 Pa.
     C.S. § 6105 of the Crimes Code?

                      -10).

     Prior to analyzing t

whether he properly preserved those claims for our review, as required by

Rule 1925(b). Rule 1925(b)(4) provides, in relevant part:


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J-A03045-14


            (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.

                                  *      *    *

             (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.

                                *     *     *
            (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)(4)(ii), (iv), (v), (vii).

             It has been held that when the trial court directs an
      appellant to file a concise statement of matters complained of on
      appeal, any issues that are not raised in such a statement will be
      waived for appellate review. Similarly, when issues are too
      vague for the trial court to identify and address, that is the
      functional equivalent of no concise statement at all. Rule 1925
      is intended to aid trial judges in identifying and focusing upon
      those issues which the parties plan to raise on appeal. Thus,
      Rule 1925 is a crucial component of the appellate process.
      When the trial court has to guess what issues an appellant is
      appealing, that is not enough for meaningful review.

Commonwealth v. Smith, 955 A.2d 391, 393 (Pa. Super. 2008) (en banc)

(case citations and quotation marks omitted). I

concise statement is too vague, this Court may find waiver.                  See

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J-A03045-14


Commonwealth v. Hansley, 24 A.3d 410, 415-16 (Pa. Super. 2011),

appeal denied, 32 A.3d 1275 (Pa. 2011) (

on appeal waived where he failed to specify claims in his Rule 1925(b)

statement); see also Commonwealth v. Castillo, 888 A.2d 775, 776, 780

(Pa. 2005) (reaffirming bright-line waiver rule for Rule 1925 established in

Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998), and stating that any

issues not raised in Rule 1925(b) statement are waived.). An en banc panel

of this Court recently stated:

             Our Supreme Court intended the holding in Lord to
      operate as a bright-
      the minimal requirements of Pa.R.A.P. 1925(b) will result in
      automatic waiver                               Commonwealth v.
      Schofield, 888 A.2d 771, 774 (Pa. 2005) (emphasis added);
      see also [Commonwealth v.] Castillo, 888 A.2d at 780.
      Given the automatic nature of this type of waiver, we are
      required to address the issue once it comes to our attention.
      Indeed, our Supreme Court does not countenance anything less
      than stringent application of waiver pursuant to Rule 1925(b):
                  -line rule eliminates the potential for inconsistent
      results that existed prior to Lord, when . . . appellate courts had
      discretion to address or to waive issues raised in non-compliant
                                          Id. Succinctly put, it is no
                                                                        al
      deficiencies of Rule 1925(b) statements.

Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 2014 WL

930822 at *2 (Pa. Super. filed March 11, 2014) (en banc) (emphasis

original); see id. at *5 (holding that this Court cannot address merits of



directing it to file concise statement of errors).




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J-A03045-14


      Here, Appellant filed a nine-page Rule 1925(b) statement of errors

that is vague and far from concise. (See Rule 1925(b) Statement, 6/14/13,

at 1-9). It consists of forty-three numbered paragraphs, divided into three

                                                                              -

                                    (See id.). It does not precisely identify



a Rule 1925(b) statement.     (See id.).   In fact, portions of the document

                                                               etrial motion to

suppress. (See id.; see also Omnibus Pretrial Motion to Suppress Evidence

and to Dismiss, 9/05/12, at unnumbered pages 1-3).               Further, the



to the specific issues and sub-issues raised in his brief. (See Rule 1925(b)

Statement, 6/14/13, at 1-9; see also                         -10).



discern them, its Rule 1925(a) opinion simply restated its reasons for



(See Trial Ct. Op., at 3-6). The court could not directly address each of the

issues and sub-issues Appellant raised in his brief because Appellant failed to

concisely identify them for the court in his Rule 1925(b) statement, despite

                               BE SPECIFIC AS TO WHAT CLAIMS WERE



RULINGS ON THE CLAIMS WERE ERROR


                                     -7-
J-A03045-14


5/31/13, at 1) (emphasis in original); see also

(noting that trial court did not directly address sub-issue I.A.)).

        Based on this record, we conclude that Appellant failed to comply with

the minimal requirements of Rule 1925(b), and that, consequently, he has

waived all of his issues on appeal. See Pa.R.A.P. 1925(b)(4)(vii); see also

Greater Erie Indus. Dev. Corp., supra at *2 (citing Schofield, supra at

774).    Accordingly, we may not address the merits of those issues.        See

Greater Erie Indus. Dev. Corp., supra at *2, 5.2



____________________________________________


2
  We recognize that our Rules of Appellate Procedure provide for limited
instances in which appellate courts may remand criminal cases to trial courts
in order to cure defects in Rule 1925 statements. In relevant part, Pa.R.A.P.
1925(c) permits appellate courts in criminal cases to remand in the following
three circumstances related to the filing of Rule 1925(b) statements:

        (1)     An appellate court may remand [in a criminal case] for
        a determination as to whether a Statement has been filed and/or
        served or timely filed and/or served.


                                       *       *   *

        (3) 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.

        (4) In a criminal case . . .       [where counsel filed an
        Anders/McClendon brief] in lieu of filing a Statement [and]
        upon review of the Anders/McClendon brief, the appellate
        court believes that there are arguably meritorious issues for
        review[.] . . .
(Footnote Continued Next Page)


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J-A03045-14


      Judgment of sentence affirmed.

      Olson, J., files a Concurring Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/1/2014




                       _______________________
(Footnote Continued)

Pa.R.A.P. 1925(c)(1), (3)-(4). None of these circumstances is applicable in
the present case. With respect to Pa.R.A.P. 1925(c)(1), the record reflects

Pa.R.A.P. 1925(c)(3), the official note to the rule makes clear that remand is

order to file a Statement. . . . [W]hen waiver occurs due to the improper
filing of a Statement . . . relief may occur only through the post-conviction


Statement. Finally, with respect to Pa.R.A.P. 1925(c)(4), counsel has not
filed an Anders/McClendon brief. Therefore, remand is not available in the
instant case.



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