J-A25026-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                       Appellant                 :
                                                 :
                                                 :
                v.                               :
                                                 :
                                                 :
    CATHY RENEE BURROWS                          :   No. 143 MDA 2019

               Appeal from the Order Entered January 17, 2019
     In the Court of Common Pleas of Lycoming County Criminal Division at
                       No(s): CP-41-CR-0001023-2018


BEFORE: STABILE, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.:                           FILED FEBRUARY 18, 2020

        This   case   is   before   us   on    the   grant   of   reconsideration.   The

Commonwealth appealed from an order dismissing charges against Cathy

Renee Burrows as constituting de minimis infractions. See 18 Pa.C.S.A. §

312(a)(3).1 We initially dismissed the appeal because the Commonwealth did

not file a Pa.R.A.P. 1925(b) statement, even though the trial court ordered it
____________________________________________


1   Section 312(a)(3) provides:

        (a) General rule.      – The court shall dismiss a prosecution if,
            having regard      to the nature of the conduct charged to
            constitute an     offense and the nature of the attendant
            circumstances,    it finds that the conduct of the defendant:

                                           ***

               (3) presents such other extenuations that it cannot
                   reasonably be regarded as envisaged by the General
                   Assembly or other authority in forbidding the offense.

18 Pa.C.S.A. § 312(a)(3).
J-A25026-19



to do so. See Judgment Order, filed 10/25/19. We explained that we disagreed

with the Commonwealth that Pa.R.A.P. 1925(c)(3) entitled it to a remand so

it could file a Rule 1925(b) statement.

      The Commonwealth responded by filing a “Motion to Reinstate Appeal,”

arguing that we had overlooked Commonwealth v. Grohowski, 980 A.2d

113 (Pa.Super. 2009). According to the Commonwealth, Grohowski held that

Rule 1925(c)(3) applies to it in all cases to the same extent as it applies to

criminal defendants. We treated the Commonwealth’s motion as an application

for reconsideration and vacated our Judgment Order. See Order, filed

11/20/19. We conclude that Grohowski is distinguishable, and we therefore

again dismiss the Commonwealth’s appeal.

      In Grohowski, the Commonwealth and the defendant filed cross-

appeals, and each filed its court-ordered Rule 1925(b) statement late. This

Court determined that the late filings did not constitute waiver by either party.

In support, we cited Rule 1925(c)(3), which “allows for remand ‘if an appellant’

in a criminal case was ordered to file a statement and did not do so.”

Grohowski, 980 A.2d at 115. We noted that we had held in Commonwealth

v. Burton, 973 A.2d 428 (Pa.Super. 2009) (en banc), that if counsel for a

criminal defendant files a Rule 1925(b) statement late, that constituted per se

ineffectiveness, and we would remand for the filing of a statement nunc pro

tunc. Id. at 114. We also pointed out that the text of Rule 1925(c)(3) did not

explicitly require that the “appellant” be the defendant in order for the rule to

apply. Id. at 115. We then stated that in “[f]airness and consistency,” if the

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defendant could file a late Rule 1925(b) statement, we would allow the

Commonwealth to do so as well. Id. We stated our holding as, “[W]e hold that

the rule enunciated in Burton … applies to the Commonwealth as well as to

the represented criminal defendant.” Id.

       In Burton, defense counsel filed a court-ordered Rule 1925(b)

statement, albeit one day late. Burton, 973 A.2d at 430. We acknowledged

that Rule 1925(c)(3), as it then existed,2 allowed for a remand for the filing

of a statement if the appellant had not filed a statement at all, “such that the

appellate court is convinced that counsel has been per se ineffective.” Id. at

431. We noted the Explanatory Note to the Rule, which reviewed the history

of Rule 1925(c)(3) as the successor to a line of cases allowing for similar relief

where a criminal defendant has shown that counsel failed to file a Rule 1925(b)

statement and was therefore ineffective. Id. at 432. Concluding that a late

filing of a Rule 1925(b) statement is the equivalent of a complete failure to

file one, we held that the defendant was entitled to the benefit of Rule

1925(c)(3). Id. at 433.

       This case does not present the equitable considerations found in

Grohowski that led us in that case to extend the benefit of Rule 1925(c)(3)

to the Commonwealth. We are not faced here with a situation where the

Commonwealth and the defendant are cross-appellants and both filed a Rule

1925(b) statement late. Rather, only the Commonwealth failed to comply with
____________________________________________


2 Since the time of Burton and Grohowski, the rule has been amended to
allow for relief for untimely statements.

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a Rule 1925(b) order. It therefore cannot be said that allowing one side to file

a nunc pro tunc statement, but not the other, violates notions of “fairness and

consistency.” We must not divorce the holding of Grohowski from the

conditions giving rise to our decision there. “[T]he axiom that decisions are to

be read against their facts prevents the wooden application of abstract

principles to circumstances in which different considerations may pertain.”

Maloney v. Valley Med. Facilities, Inc., 984 A.2d 478, 485-86 (Pa. 2009)

(citation omitted).

      The Commonwealth does not cite any special consideration such as we

found in Grohowski or argue that Rule 1925(c)(3) is ambiguous. We

therefore have no warrant to apply the narrow holding of Grohowski to this

case or to deviate from the plain language of the rule.

      Appeal dismissed.

Judge Musmanno joins the Memorandum.

Judge Stabile concurs in the result.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/18/2020



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