J-S25028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

IVAN SOTOLONGO, JR.,

                        Appellant                  No. 2292 EDA 2016


       Appeal from the Judgment of Sentence Entered June 20, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0010422-2015


BEFORE: BENDER, P.J.E., RANSOM, J., and FORD ELLIOTT, P.J.E. {2017}

CONCURRING STATEMENT BY BENDER, P.J.E.:               FILED JULY 18, 2017

     I agree with the Majority’s decision to affirm Appellant’s judgment of

sentence.     I write separately, however, to point out that Pa.R.A.P.

1925(c)(3) directs that, “[i]f an appellant in a criminal case was ordered to

file a [Rule 1925(b)] 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).

Here, I would conclude that current counsel’s untimely-filing of Appellant’s

Rule 1925(b) statement constituted per se ineffectiveness. Nevertheless, I

would not remand, as the trial court addresses in its Rule 1925(a) opinion

Appellant’s challenge to the sufficiency of the evidence to sustain his

conviction for possession with intent to deliver a controlled substance
J-S25028-17



(PWID). See Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super.

2009) (holding that “if there has been an untimely filing [of a Pa.R.A.P.

1925(b) statement], this Court may decide the appeal on the merits where

the trial court had adequate opportunity to prepare an opinion addressing

the issues being raised on appeal”).

      Specifically, the trial court initially concludes (and the Majority agrees)

that Appellant has waived his sufficiency claim based on his non-specific

presentation of that issue in his Rule 1925(b) statement.       See Trial Court

Opinion (TCO), 10/5/16, at 10-11. While I recognize that in most cases, a

boilerplate sufficiency claim does waive the issue for appellate review, I

would not find waiver in this relatively straightforward case. The trial court

provided an alternative analysis in which it concisely assessed the evidence

that supported Appellant’s convictions, and rejected the obvious arguments

he could (and does) raise on appeal (i.e., that he did not conspire with the

individuals who were dealing drugs, he did not possess any narcotics, and he

was merely present at the scene). See id. at 11-15. I agree with the trial

court’s analysis. Therefore, I would not find waiver in this case, but I would

instead affirm Appellant’s judgment of sentence based on the fact that his

sufficiency challenge is meritless.




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