J-S53034-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    TYUAN SIMON                                :
                                               :
                       Appellant               :      No. 3204 EDA 2017

               Appeal from the PCRA Order September 12, 2017
             In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0007840-2012


BEFORE:      GANTMAN, P.J., OTT, J., and PLATT*, J.

MEMORANDUM BY GANTMAN, P.J.:                         FILED OCTOBER 03, 2018

        Appellant, Tyuan Simon, appeals from the order entered in the

Montgomery County Court of Common Pleas, which denied Appellant’s first

petition brought under the Post Conviction Relief Act (“PCRA”).1          For the

following reasons, we remand for further proceedings.

        The relevant facts and procedural history of this case are as follows.

During a grand jury hearing on July 18, 2012, Christopher Carbone testified

another prison inmate had told Mr. Carbone that Appellant had hired the

inmate to kill Victim. Subsequently, the Commonwealth charged Appellant

with first-degree murder and related offenses arising out of the shooting death

of Victim. Appellant proceeded to a multi-day jury trial on June 24, 2013. At


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1   42 Pa.C.S.A. §§ 9541-9546.
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* Retired Senior Judge assigned to the Superior Court.
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trial, Mr. Carbone recanted his grand jury testimony, indicating, inter alia: (i)

his attorney had coerced him to testify at the grand jury hearing, because he

led Mr. Carbone to believe the Commonwealth would pursue a lesser sentence

against Mr. Carbone in his pending criminal case if he testified; and (ii) after

the grand jury hearing, someone had threatened to harm Mr. Carbone and his

family if he testified against Appellant at trial.   On June 27, 2013, a jury

convicted Appellant of first-degree murder, solicitation to commit murder, and

conspiracy to commit murder. The court sentenced Appellant on September

20, 2013, to life without the opportunity of parole (“LWOP”).         This Court

affirmed the judgment of sentence on December 12, 2014, and our Supreme

Court denied allowance of appeal on May 13, 2015. See Commonwealth v.

Simon, 116 A.3d 686 (Pa.Super. 2014) (unpublished memorandum), appeal

denied, 632 Pa. 662, 116 A.3d 604 (2015).

      On May 3, 2016, Appellant timely filed his first and current pro se PCRA

petition. Appellant subsequently retained PCRA counsel. Appellant filed an

amended PCRA petition on May 4, 2017, and a supplemental PCRA petition on

July 25, 2017, in which Appellant raised claims of ineffective assistance of trial

and appellate counsel. On August 7, 2017, the PCRA court issued Rule 907

notice. On August 17, 2017, Appellant filed a “Motion to Continue,” requesting

the court to allow Appellant additional time to obtain an affidavit from Mr.

Carbone recanting his trial testimony. The court denied Appellant’s motion on

August 18, 2017. The court, however, allowed Appellant to present an after-


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discovered evidence claim in his response to the Rule 907 notice and extended

the time for filing a Rule 907 notice response.     On September 11, 2017,

Appellant filed a response to Rule 907 notice. In the September 11 th filing,

Appellant alleged Mr. Carbone recanted his trial testimony that he had been

threatened or coerced to retract his grand jury testimony. Appellant appended

to his September 11th filing an affidavit of Mr. Carbone, recanting his trial

testimony. On September 13, 2017, the PCRA court dismissed Appellant’s

PCRA petition.

     On September 29, 2017, Appellant timely filed a pro se notice of appeal

and request for counsel.    The PCRA court appointed current counsel on

October 30, 2017. The PCRA court ordered Appellant on November 2, 2017,

to file a concise statement of errors complained of on appeal per Pa.R.A.P.

1925(b); Appellant failed to comply. Nevertheless, the PCRA court issued a

Rule 1925(a) opinion on December 1, 2017. On December 8, 2017, counsel

sent to the PCRA court a letter explaining he did not file a Rule 1925(b)

statement on behalf of Appellant, because counsel believed he had a potential

conflict of interest in representing Appellant.     The PCRA court issued a

supplemental Rule 1925(a) opinion on December 12, 2017, suggesting that

this Court remand for appointment of new counsel, whom the PCRA court shall

order to file a compliant Rule 1925(b) statement.

     Appellant raises the following issues for our review:

        WHETHER APPELLANT’S PCRA APPEAL SHOULD BE
        REMANDED TO THE [PCRA] COURT PURSUANT TO PA.R.A.P.

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           1925(C) TO PERMIT NEW COUNSEL TO FILE A STATEMENT
           OF MATTERS COMPLAINED OF ON APPEAL[?]

           WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING
           TO   OBJECT   TO  THE  PROSECUTION’S    USE    OF
           UNSUBSTANTIATED CLAIMS OF WITNESS INTIMIDATION
           BY APPELLANT[?]

           WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING
           TO OBJECT TO OR PLACE ON THE RECORD THAT THE
           COMMONWEALTH USED ITS PEREMPTORY JURY STRIKES IN
           A RACIALLY DISCRIMINATORY MANNER[?]

           WHETHER APPELLANT’S [DIRECT APPEAL] COUNSEL WAS
           INEFFECTIVE FOR FAILING TO PROPERLY SPECIFY WHAT
           ELEMENTS OF THE OFFENSE HAD NOT BEEN MET IN THE
           [RULE] 1925(B) STATEMENT OF ERRORS[?]

           WHETHER APPELLANT IS ENTITLED TO A NEW TRIAL BASED
           UPON   DUE PROCESS VIOLATIONS WHEN AFTER
           DISCOVERED EXCULPATORY EVIDENCE WHICH WAS
           UNAVAILABLE AT THE TIME OF TRIAL[?]

(Appellant’s Brief at 4).

        As a prefatory matter, we observe the failure to file a court-ordered Rule

1925(b)     statement    generally    constitutes   a   waiver   of   all   issues.

Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998). “[T]o preserve

their claims for appellate review, [a]ppellants must comply whenever the trial

court orders them to file a Statement of [Errors] Complained of on Appeal

pursuant to Pa.R.A.P. 1925.      Any issues not raised in a Pa.R.A.P. 1925(b)

statement will be deemed waived.”        Commonwealth v. Castillo, 585 Pa.

395, 403, 888 A.2d 775, 780 (2005) (citing Lord, supra at 420, 719 A.2d at

309).

        Our Supreme Court revised Rule 1925 to provide a remedy when a

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criminal appellant’s counsel fails to file a court-ordered Rule 1925(b)

statement.2 See Pa.R.A.P. 1925(c)(3); Commonwealth v. McBride, 957

A.2d 752, 755 (Pa.Super. 2008). Rule 1925(c)(3) allows the appellate Court

to remand “for the filing of a Statement nunc pro tunc and for the preparation

and filing of an opinion by the judge,” if the court ordered an appellant in a

criminal case to file a Rule 1925(b) statement, appellant failed to do so, and

the appellate court is convinced that counsel has been per se ineffective.

Pa.R.A.P. 1925(c)(3). See also Commonwealth v. Presley, ___ A.3d ___,

2018 PA Super 207, 23-24 (filed July 17, 2018) (providing Rule 1925(c)(3)

applies in context of appeal from denial of timely first PCRA petition).

        Interpreting the revised Rule 1925(c)(3), this Court has held that

counsel’s failure to file a court-ordered Rule 1925(b) statement is per se

ineffectiveness.      Commonwealth v. Burton, 973 A.2d 428, 431-32

(Pa.Super. 2009) (en banc). Generally, when waiver occurs due to counsel’s

complete failure to file a Rule 1925(b) statement, remand is proper.

Commonwealth v. Mitchell, 986 A.2d 1241, 1244 n.4 (Pa.Super. 2009)

(noting counsel’s failure to file court-ordered Rule 1925(b) statement required

remand for filing of concise statement nunc pro tunc under revised Rule

1925(c)(3)); Commonwealth v. Scott, 952 A.2d 1190, 1192 (Pa.Super.

2008) (recognizing recent amendment to Rule 1925 relaxed strict application



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2   Rule 1925 was amended on May 10, 2007, and again on January 13, 2009.

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of Lord and stating, “pursuant to the amended version of Rule 1925, the

complete failure by counsel to file a Rule 1925(b) statement, as ordered, is

presumptively prejudicial and clear ineffectiveness”). But see Burton, supra

at 433 (stating this Court may review appeal and not remand for filing of

concise statement where trial court addressed in opinion issues appellant

raises on appeal). Upon remand, counsel must file a Rule 1925(b) statement

nunc pro tunc; thereafter, the trial court should prepare an opinion, file it, and

forward it to this Court within 30 days. Scott, supra at 1192-93.

      Instantly, on November 2, 2017, the PCRA court ordered a Rule 1925(b)

statement.    Appellant’s counsel, however, did not file a Rule 1925(b)

statement, due to a concern that he has a conflict of interest in representing

Appellant.      Absent   more,    counsel’s    omission    constituted   per   se

ineffectiveness. See Burton, supra. Despite counsel’s failure to file Rule

1925(b) statement, the PCRA court issued a Rule 1925(a) opinion.            In its

opinion, the PCRA court suggests it mistakenly treated Appellant’s response

to the Rule 907 notice as a supplemental PCRA petition filed without leave of

court. The PCRA court also does not address in its opinion any appellate issue

Appellant raised including his claim for a new trial based on after-discovered

evidence, which he first presented in his response to Rule 907 notice and now

attempts to present as his fifth issue on appeal. See id.

      Accordingly, in concert with the PCRA court’s recommendation, we

remand this case with the following instructions. First, the PCRA court shall


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not reject Appellant’s September 11, 2017 filing as a supplemental PCRA

petition filed without leave of court. The record demonstrates Appellant’s

September 11th filing is his response to Rule 907 notice, which the court

expressly permitted, and is compliant with the court’s August 18, 2017 order.

Second, within ten (10) days of the filing date of this decision, the PCRA court

shall appoint new counsel to assist Appellant and order counsel to file a Rule

1925(b) statement. New counsel must promptly review the record and file

and serve the PCRA court with a proper Rule 1925(b) statement within the

time the court allows. Upon receipt of the Rule 1925(b) statement, the PCRA

court shall have thirty (30) days to prepare an opinion in response to that

statement, pursuant to Rule 1925(a), and transmit the certified record to this

Court along with all of the new documents certified as part of that record.

      Case remanded with instructions. Jurisdiction is retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/3/18




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