J-A01005-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES REIMER                               :
                                               :
                       Appellant               :   No. 1096 EDA 2019

                 Appeal from the Order Entered March 23, 2018
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0001150-2018


BEFORE:      NICHOLS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY NICHOLS, J.:                                FILED JULY 20, 2020

        Appellant James Reimer appeals the judgment of sentence imposed

following his conviction by the trial court without a jury (bench trial) for the

summary offenses of careless driving, careless driving/unintentional death,

careless driving/serious bodily injury, operating a vehicle with unsafe

equipment, failing to stop at a red signal, and related offenses.1 Appellant

presents various arguments challenging the sufficiency and weight of the

evidence.      We remand for further proceedings consistent with this

memorandum.

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S. §§ 3714(a), 3714(b), 3714(c), 4107(b)(2), and 3112(a)(3)(i),
respectively. Appellant was initially charged with several misdemeanor DUI
offenses. However, immediately before the bench trial, the Commonwealth
conceded that Appellant’s blood sample was improperly obtained, and elected
to proceed solely on the summary offenses. N.T. Trial, 1/14/19, at 4.
J-A01005-20



      The trial court summarized the facts and procedural history of this case

as follows:

      The offenses for which [Appellant] was convicted took place on
      October 12, 2017, at the intersection of Route 23 and Bar Harbor
      Drive in West Conshohocken.

      On that date, [Appellant] was operating a Mack dump truck
      traveling westbound on Front Street, Route 23, at approximately
      9:30 in the morning.

      The sky was overcast and it had been raining off and on
      throughout the morning. A traffic signal controls the flow of traffic
      at the intersection where the accident occurred. [Appellant]’s
      truck struck an oncoming Toyota sedan that had been making a
      left hand turn onto Bar Harbor Drive from eastbound Route 23.
      The force with which [Appellant]’s truck hit the Toyota caused the
      Toyota to hit a Mazda sedan that was stopped on Bar Harbor
      Drive.

      The Toyota was driven by Mr. John Hardy and carried the
      passenger, Mrs. Darnell Hardy. As a result of the accident, Mrs.
      Hardy died on the scene and Mr. Hardy suffered serious injuries.
      The driver of the Mazda, Mr. Herman Lee, was not injured as a
      result of the crash.

                                  *    *    *

      [The trial court conducted a bench trial on January 14, 2019. The
      trial court received testimony from several eyewitnesses, the
      investigating officer, and a crash investigation expert on behalf of
      the Commonwealth. Appellant called Mr. Hardy as a witness and
      testified on his own behalf.]

      Upon conclusion of the one-day bench trial, [Appellant] was found
      guilty on all counts. Sentencing occurred simultaneous to the
      verdict and [Appellant] was directed to pay fines resulting from
      the violations of the vehicle code in addition to restitution.
      [Appellant] incurred fines totaling eight hundred dollars ($800).
      [Appellant] was directed to pay restitution in the amount of
      Twenty-Four Thousand Seven Hundred Fifty Three Dollars and
      Eighty Nine Cents ($24,753.89), designated between the estate
      of the deceased, [Mrs.] Hardy, the driver of the vehicle, [Mr.]
      Hardy, and PennDOT.

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        [Appellant] filed a post sentence motion on January 23, 2019,
        seeking a new trial and a modification of restitution. After a
        hearing on the post sentence motion on February 22, 2019, and
        a new hearing on restitution on March 20, 2019, [the trial court]
        denied [Appellant]’s request for a new trial, and modified in part
        the [c]ourt’s original restitution order. The new order provided an
        itemized list for restitution in addition to removing the provision
        directing restitution to be paid to [PennDOT].

        [Appellant filed a timely post-sentence motion on January 23,
        2019. The motion raised, among other things, a claim that the
        verdict was against the weight of the evidence.2 On March 21,
        2019, the trial court issued an order granting in part, denying in
        part, and vacating in part.3]

        On April 9, 2019, [Appellant] filed a timely notice of direct appeal
        to the Superior Court of Pennsylvania. By Order dated April 11,
        2019, the [trial court] directed [Appellant] to file a statement of
        errors complained of on appeal, pursuant to Pennsylvania Rule of
        Appellate Procedure 1925(b).          [The trial court] received
        [Appellant]’s timely-filed 1925(b) statement on May 2, 2019.

Trial Ct. Op., 6/7/19, at 1-4.


____________________________________________


2   Specifically, in his post-sentence motion for a new trial, Appellant argued:

        The verdict was against the weight of the evidence with respect
        to the question of whether: (a) [Appellant] operated his vehicle
        carelessly at any time relevant hereto; (b) that said careless
        driving was the direct cause of the death of [Mrs. Hardy] and the
        serious bodily injury sustained by [Mr.] Hardy.

Appellant’s Post-Sentence Motion, 1/23/19, at 2-3. In support of his request
for a new trial, Appellant argued that Mr. Hardy had no recollection of the
accident, that Mr. Hardy made an illegal turn in front of Appellant’s vehicle,
that testimony that Appellant was traveling fifty-five to sixty miles per hour
was unreliable and incredible, and that Appellant could not have discovered
problems with the brakes on his vehicle. Id. at 3.

3 The trial court denied Appellant’s requests for a new trial, but granted
Appellant’s requests to vacate the sentence of restitution to PennDOT and
laboratory costs.

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     In his 1925(b) statement, Appellant raised six claims of error:

     1. The trial court erred as a matter of law in finding [Appellant]
        guilty on all counts as the verdict was contrary to the weight of
        evidence. The trial court erred as a matter of law in allowing a
        lay witness to guess the speed of defendant, [Appellant’s]
        vehicle at any time relevant to the charge of careless driving.

     2. The trial court erred as a matter of law in finding [Appellant]
        guilty of violation[s] of [75 Pa.C.S. §§ 3112(a)(3)(i)— failure
        to stop at red signal, 3714(a)—careless driving, 3714(b)—
        careless driving causing unintentional death, 3714(c)—careless
        driving causing serious bodily injury, and 4107(b)(2)—
        operating a vehicle with unsafe equipment] arising out of a
        motor vehicle accident which occurred at the intersection of
        Front Street and Bar Harbor Drive in West Conshohocken,
        Pennsylvania on or about October 12, 2017 as such finding was
        contrary to the testimony of Detective Morrissey who testified
        that the defective brakes on the subject vehicle would not have
        been discovered by [Appellant’s] visual inspection.

     3. The trial court erred as a matter of law in disregarding the
        evidence of [Mr.] Hardy’s violation of Section 3322 of the
        [Pennsylvania] Motor Vehicle Code which caused the crash
        involving [Appellant’s] vehicle.

     4. The trial court erred in allowing hearsay evidence on the issue
        of restitution.

     5. The trial court erred in allowing hearsay evidence on the issue
        of restitution without regard to the fair market value of the
        costs expenses requested.

     6. The trial court abused its discretion in awarding restitution for
        the following:

        a. Excessive vehicle storage charges

        b. Musicians for [victim’s] funeral;

        c. Excessive expert witness fees;

        d. Witness fee for a Cheltenham police officer; and

        e. Excessive vehicle towing and clean up fee.



                                    -4-
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Appellant’s Rule 1925(b) Statement.

       Of relevance to this appeal,4 the trial court, in its Rule 1925(a) opinion,

interpreted Appellant’s first two issues as challenges to the weight of the

evidence. Trial Ct. Op. at 6. The trial court responded to Appellant’s claims

by emphasizing that credible eyewitness testimony established that Appellant

was speeding and that his truck had traveled beyond the stop bar when the

signal in his direction turned red. Id. at 7. In addition, the trial court pointed

out that, according to the testimony of Detective Morrissey, Appellant’s pre-

trip inspection should have revealed defects in a tire and the steering axle of

his vehicle. Id. The trial court stated that it “found the . . . testimony of

[Brian Leflar, Daniel Finnegan, and Detective Morrissey] to be credible, and

trustworthy.” Id. Further, in addressing Appellant’s first issue, the trial court

concluded that Appellant’s objection to the trial court’s reliance on lay witness

testimony concerns the admissibility, not the weight of the evidence. Id. at

8. Accordingly, the trial court opined that it did not abuse its discretion when

____________________________________________


4 With respect to Appellant’s third claim in his Rule 1925(b) statement that
complainant Mr. Hardy committed a traffic violation and caused the accident,
the trial court noted that the record was silent as to any citations or violations
issued to or committed by Mr. Hardy and concluded that comparative and
contributory negligence did not impact Appellant’s guilt or whether Appellant’s
actions satisfied the element of the crime for which he was convicted. Trial
Ct. Op. at 10.

As to Appellant’s remaining three claims regarding restitution, the trial court
concluded that it properly admitted receipts and invoices as part of sentencing
and that its award of restitution was not excessive. Id. at 8-10. As discussed
herein, Appellant has abandoned his challenges to the trial court’s order of
restitution on appeal.

                                           -5-
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denying Appellant’s post-sentence motion challenging the weight of the

evidence. Id.

       In his brief, Appellant raises the following question for our review:

       Does a trial court in a bench trial err by convicting a defendant
       without concluding that the Commonwealth established that
       defendant operated his “vehicle in careless disregard for the
       safety of persons or property” under 75 Pa.C.S. § 3714?

Appellant’s Brief at 5.

       Appellant asserts that the trial court was required to determine that

Appellant violated “all provisions of a statute” before entering a finding of guilt.

Id. at 13.     Appellant contends that his careless driving convictions were

improper because the trial court did not conclude that he acted carelessly

within the meaning of Section 3714.5 Id. at 15. Relying on Commonwealth

v. Gezovich, 7 A.3d 300 (Pa. Super. 2010) and Commonwealth v.

Huggins, 836 A.2d 862 (Pa. 2003), Appellant argues that the mens rea

element of careless driving requires the Commonwealth to prove that

Appellant acted with more than ordinary tort negligence.               Specifically,

Appellant contends that his careless driving convictions required the

____________________________________________


5 Appellant indicates that he is not challenging the trial court’s “findings of
guilt” for disregarding a red traffic signal under 75 Pa.C.S. § 3112(a)(3), nor
for unlawful activities under 75 Pa.C.S. § 4107(b)(2). Appellant’s Brief at 5,
n.1. However, later in his brief, Appellant states that he “appeals from his
conviction and imposition of sentence for (1) failing to stop at a red signal, (2)
careless driving/unintentional death, (3) careless driving/serious bodily injury,
(4) and operating a vehicle with unsafe equipment, following a one-day bench
trial. Id. at 6.


                                           -6-
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Commonwealth to establish “willful or wanton disregard for the safety of

persons or property.” Id. at 12.

      Appellant concedes that “the record here could reasonably lead to a

conclusion that [Appellant] was negligent,” but he argues that the trial court’s

Rule 1925(a) opinion does not indicate “whether the [trial] court deemed the

conduct sufficient to meet the statutory standard.”      Id. at 17.   Appellant

summarizes the record and asserts that the trial court “ignored substantial

evidence, including testimony from witnesses cited in the [trial court opinion],

to support the bench trial verdict.” Id. at 15. Appellant maintains that the

trial testimony presented a question regarding the sufficiency of the evidence

that was “left unanswered by the trial court opinion.” Id. at 17.

      In sum, Appellant contends that “(1) the finding [of guilt] did not meet

the statutory requirements, and (2) the finding was against the weight of the

evidence.” Id. Appellant suggests that “this Court should vacate the finding

of guilty under 75 Pa.C.S. § 3714 and vacate the sentence imposed for that

alleged violation.” Id. at 24.

      The Commonwealth notes that it is unclear whether Appellant intends

to challenge the weight or the sufficiency of the evidence. Commonwealth’s

Brief at 7. In either case, the Commonwealth contends that Appellant’s claims

are waived. Id. at 6. The Commonwealth acknowledges that Appellant timely

filed a court-ordered Rule 1925(b) statement identifying six issues. Id. at 8.

However, the Commonwealth asserts that Appellant “either wholly failed to




                                     -7-
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identify, or failed to provide sufficient detail to identify, the issue[s] presented

in his appellate brief.” Id. at 8.

      Specifically, the Commonwealth asserts that Appellant failed to raise a

sufficiency challenge in his Rule 1925(b) statement.             Id. at 9.      The

Commonwealth contends that because Appellant did not discuss the mens rea

issue in his concise statement, that argument is waived. Id. at 7. Relying on

Commonwealth v. Williams, 959 A.2d 1252 (Pa. Super. 2008), the

Commonwealth submits that Appellant’s sufficiency claim is waived for failure

to specify the unproven elements. Id. at 8-9.

      Next, citing Commonwealth v. Postie, 110 A.3d 1034 (Pa. Super.

2015), the Commonwealth posits that Appellant waived his weight of the

evidence claims because his arguments lacked sufficient detail and were not

adequately developed in his appellate brief. Id. at 8, 15. The Commonwealth

argues that, although Appellant claimed the verdict was against the weight of

the evidence in his Rule 1925(b) statement, “he failed to specify that the basis

for his careless driving weight claim was the supposed lack of evidence that

he acted with a mens rea more culpable than mere negligence.” Id. at 10.

The Commonwealth further argues that Appellant’s brief contains no citation

to legal authority to support his weight of the evidence argument and does

not state the applicable standard of appellate review in his brief. Id. at 15.

The Commonwealth observes that Appellant “simply invites this Court to

reweigh the evidence.” Id.




                                       -8-
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      Moreover, the Commonwealth contends that Appellant’s challenges to

the sufficiency and weight of the evidence are meritless because “ample

evidence showed that Appellant’s conduct was worse than mere negligence.”

Id. at 6, 7.     Specifically, the Commonwealth argues that Appellant’s

sufficiency claim lacks merit because eyewitness testimony established that

Appellant was driving so erratically moments before the crash that other

drivers distanced themselves to avoid collisions. Id. at 12. Based on this

evidence, the Commonwealth contends that the trial court reasonably inferred

that Appellant’s conduct was more than negligent. Id. at 13. To the extent

Appellant raises a weight claim, the Commonwealth argues that the trial court

did not abuse its discretion in rendering its guilty verdict based on ample

evidence including, eyewitness testimony about Appellant’s dangerous

driving, and the severity of the collision, such that a finding of guilt is not

shocking to one’s conscience. Id. at 14-15.

      We note that a sufficiency of the evidence claim questions whether the

evidence established “each material element of the crime charged and the

commission    thereof   by   the   accused,   beyond   a   reasonable   doubt.”

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (citation

omitted); see also Commonwealth v. Williams, 176 A.3d 298, 305 (Pa.

Super. 2017), appeal denied, 187 A.3d 908 (Pa. 2018).          “Counsel is not

required to make a motion with the trial court in order to preserve a challenge

to the sufficiency of the evidence.” Commonwealth v. Orellana, 86 A.3d

877, 879 (Pa. Super. 2014) (citation omitted and some formatting altered).

                                     -9-
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Nevertheless, this Court has held that “when challenging the sufficiency of the

evidence on appeal, the [a]ppellant’s [Rule] 1925 statement must specify the

element or elements upon which the evidence was insufficient in order to

preserve the issue for appeal.” Commonwealth v. Garang, 9 A.3d 237, 244

(Pa. Super. 2010) (citation and quotation marks omitted); see also

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

that a trial court should not have to guess which issues are being raised and

that a Rule 1925(b) statement “which is too vague to allow the court to identify

the issues raised on appeal is the functional equivalent of no [c]oncise

[s]tatement at all.” (citation and quotation marks omitted)).       The proper

remedy for insufficient evidence is to vacate the conviction and discharge the

defendant for that offense. Commonwealth v. Whiteman, 485 A.2d 459,

461 (Pa. Super. 1984).

      In contrast, a “challenge to the weight of the evidence is distinct from a

challenge to the sufficiency of the evidence in that the former concedes that

the Commonwealth has produced sufficient evidence of each element of the

crime, but questions which evidence is to be believed.” Commonwealth v.

Kinney, 157 A.3d 968, 971 (Pa. Super. 2017) (citation omitted and some

formatting altered). “[A] challenge to the weight of the evidence must be

raised with the trial judge or it will be waived.” Commonwealth v. Gillard,

850 A.2d 1273, 1277 (Pa. Super. 2004) (citation omitted). “The trial court

will only award a new trial when the jury’s verdict is so contrary to the

evidence as to shock one’s sense of justice.” Commonwealth v. Olsen, 82

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A.3d 1041, 1049 (Pa. 2013) (citation and quotation marks omitted).           An

appellate court must then “review the trial court’s exercise of discretion, not

the underlying question of whether the verdict is against the weight of the

evidence.”   Id. (citation omitted and some formatting altered).       When a

verdict is found to be against the weight of the evidence, the proper remedy

is a new trial. Whiteman, 485 A.2d at 461.

      Instantly, Appellant’s arguments present various challenges that could

be interpreted as sufficiency or weight of the evidence claims.       Appellant

purports to challenge the sufficiency of the evidence for his convictions on

three counts of careless driving under Section 3714(a), (b), and (c)

respectively, and expressly requests that this Court vacate these convictions

in his brief because the Commonwealth failed to prove the element of

carelessness. See Appellant’s Brief at 24.

      Yet, other than making bald assertions, Appellant has failed to develop

his argument with any specificity as to any alleged unproven elements in his

brief for the careless driving offenses, nor is his sufficiency challenge to the

carelessness element specified in his Rule 1925(b) statement. See Appellant’s

Rule 1925(b) Statement at ¶1-2. Further, Appellant’s Rule 1925(b) statement

conflates sufficiency and weight claims, which the trial court identified solely

as a weight of the evidence claim. See Hansley, 24 A.3d at 415 (noting that

a “court’s review and legal analysis can be fatally impaired when the court has

to guess at the issues raised”); see also Garang, 9 A.3d at 244 (reiterating

“the [a]ppellant'’s [Rule] 1925 statement must specify the element or

                                     - 11 -
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elements upon which the evidence was insufficient in order to preserve the

issue for appeal.” (citation and quotation marks omitted)).          Accordingly,

Appellant failed to preserve his sufficiency claim for appeal, and it is therefore,

waived. Accordingly, we cannot consider this claim.6 See id.

       Appellant further contends that (1) the trial evidence could be read as

indicating that the vehicle that Appellant struck made a turn against a red

light, (2) Appellant may not have had a red light, (3) Appellant could not have

been aware of the defects on his truck, and (4) the Commonwealth was unable

to determine Appellant’s speed when the accident occurred. Appellant’s Brief

at 17-21.    Here, Appellant appears to raise weight of the evidence claims

against his careless driving convictions under Section 3714(a), in addition to

failure to stop at red signal and operation of a vehicle with unsafe equipment.

       Appellant raised a weight of the evidence claim in his post-sentence

motion. See Gillard, 850 A.2d at 1277; Appellant’s Post Sentence Mot. at 2

(claiming that “[t]he verdict was against the weight of the evidence with

respect to the question of whether [Appellant] operated his vehicle carelessly

at any time relevant [to the accident]”). The trial court denied this claim, and

in its Rule 1925(a) opinion, explained that it found the testimony of Brian

Leflar, Daniel Finnegan, and Detective Morrissey, to be credible and

____________________________________________


6 Moreover, to the extent Appellant appears to challenge his convictions for
failing to stop at a red light and operating a vehicle with unsafe equipment,
he has not developed any meaningful arguments based on the elements of
those offenses, and therefore his sufficiency claims as to these charges is also
waived.

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trustworthy, and that Appellant’s claims did not merit relief. See Trial Ct. Op.

at 7.

        Although Appellant raised his weight of the evidence claim in his post-

sentence motion before the trial court, we are constrained to conclude that

his appellate challenge to the weight of the evidence has been waived.

Appellant has failed to properly argue this claim in his brief submitted to this

Court because Appellant failed to develop his arguments, or set forth the

applicable standard for appellate review, and legal authority to support his

arguments before this Court.      See Commonwealth v. Rahman, 75 A.3d

497, 504 (Pa. Super. 2013). Specifically, Appellant failed to explain how the

bench trial verdict was shocking to one’s sense of justice. See Olsen, 82 A.2d

at 1049. Therefore, Appellant’s claim that the bench trial verdict was against

the weight of the evidence is waived, and we cannot consider it.             See

Rahman, 75 A.3d at 504.

        Although we conclude that Appellant has failed to preserve any of his

appellate issues, our review is not ended. We now consider whether this Court

may address the trial court’s restitution order sua sponte as a challenge to the

legality of sentence, and whether appellate counsel’s failure to preserve any

issues in Appellant’s direct appeal constitutes per se ineffective assistance of

counsel warranting nunc pro tunc relief.

        With respect to restitution, we observe that in general, the trial court’s

authority to order restitution implicates the legality of sentence which is not

waivable. Commonwealth v. Burwell, 58 A.3d 790, 792 (Pa. Super. 2012).

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This Court may raise and review an illegal sentence claim sua sponte.

Commonwealth v. Ramos, 197 A.3d 766, 768 (Pa. Super. 2018).

       Moreover, in Commonwealth v. Weir, 201 A.3d 163 (Pa. Super.

2018), appeal granted, 215 A.3d 966 (Pa. 2019), this Court explained that

there is a

       distinction between claims that challenge the sentencing court’s
       statutory authority to impose restitution, and those which
       seemingly concede such authority, but challenge the court’s
       exercise of discretion in determining the appropriate amount of
       restitution. Accordingly, in determining whether a particular claim
       implicates the legality or discretionary aspects of sentencing, we
       do not merely look at the manner in which a restitution challenge
       is phrased; we must instead examine the specific nature of the
       claim presented to determine whether it challenges the sentencing
       court’s statutory authority to impose restitution, or its discretion
       in determining the amount of restitution.

Weir, 201 A.3d at 172 (citation omitted). “[W]here the Commonwealth has

established each element of § 1106(a), i.e., the victim suffered loss to person

or property directly caused by the specific crime committed by the defendant,

a claim that the restitution order is excessive implicates the discretionary

aspects of sentencing.” Id. at 174 (emphasis and citations omitted). Further,

if a claim implicates the discretionary aspects of sentencing, the claim must

be properly preserved on appeal, or be subject to waiver.7 See id. at 174-

75.

____________________________________________


7 We acknowledge that our Supreme Court has granted allowance of appeal
in Weir on the following question:




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       Instantly, we note that in his Rule 1925(b) statement, Appellant

challenged his restitution sentence based on the admission of hearsay

testimony and argued that the restitution amount was excessive. Appellant’s

Rule 1925(b) Statement at ¶¶ 4-6. However, our review of the Rule 1925(b)

statement reveals that Appellant’s restitution claim does not specifically

challenge any element of Section 1106(a), including the victim suffering loss

to person, or property directly caused by Appellant’s crimes. See Weir, 201

A.3d at 174.        Consequently, it appears that Appellant has limited his

restitution claim to challenging the amount of his restitution sentence as

excessive. See id. Accordingly, Appellant’s restitution claim implicates the

discretionary aspects of sentencing and not the legality of his sentence. Other

than bald assertions of excessiveness, Appellant failed to argue his restitution

claim with any specificity, or challenge to any element of Section 1106(a), nor

has Appellant included a Pa.R.A.P. 2119(f) statement in his appellate brief.

Therefore, Appellant has abandoned his restitution claims, and he has failed

to preserve his challenge to the discretionary aspects of his sentence for our
____________________________________________


       Whether the Superior Court majority erred in holding that a
       challenge to an order of restitution pursuant to 18 Pa.C.S. § 1106
       (Restitution for Injuries to Persons or Property), contending that
       the amount is speculative and not supported by the record, always
       implicates the discretionary aspects of sentence that is subject to
       waiver, or whether such a challenge actually may implicate the
       legality of sentence and is non-waivable, as Judge Kunselman
       correctly concluded in her concurring opinion?

Weir, 215 A.3d at 966. However, an opinion of this Court remains binding
until the   Pennsylvania  Supreme    Court    overrules   the  decision.
Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006).

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review. See Rahman, 75 A.3d at 504; see also Commonwealth v. Derry,

150 A.3d 987, 991 (Pa. Super. 2016) (noting that “[a]n appellant challenging

the discretionary aspects of his sentence must invoke this Court’s jurisdiction”

by including a Pa.R.A.P. 2119(f) statement in his brief). In sum, these claims

are waived, and we may not address them sua sponte.

        Lastly, given our findings that no appellate issues have been preserved,

we consider whether Appellant’s counsel’s performance on appeal constitutes

ineffectiveness per se and, if so, whether there is a remedy.               See

Commonwealth v. Parrish, 224 A.3d 682, 701-02 (Pa. 2020). By way of

background, in Commonwealth v. Rosado, 150 A.3d 425 (Pa. 2016), our

Supreme Court held “that the filing of an appellate brief which abandons all

preserved issues in favor of unpreserved ones constitutes ineffective

assistance of counsel per se.” Rosado, 150 A.3d at 434. In that case, the

appellant initially took a direct appeal. Id. at 426. This Court found no issues

preserved and summarily affirmed because appellate counsel filed a Rule

1925(b) statement, but then filed a brief attempting to raise an unpreserved

sufficiency of the evidence claim. Id.

        The appellant then filed a Post Conviction Relief Act8 (PCRA) petition to

reinstate his direct appeal rights. Id. at 426-27. The PCRA court denied relief

and this Court affirmed. Id. at 427. Our Supreme Court reversed this Court,

reiterating “that errors which completely foreclose appellate review amount

____________________________________________


8   42 Pa.C.S. §§ 9541-9546.

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to a constructive denial of counsel and thus ineffective assistance of counsel

per se, whereas those which only partially foreclose such review are subject

to the ordinary Strickland/Pierce framework.”          Id. at 433 (emphasis in

original). The Rosado Court further noted that

      the filing of a brief that raises only waived issues, while technically
      distinct, is nonetheless akin to failing to file documents perfecting
      an appeal. There is no meaningful difference between an attorney
      who fails to file a notice of appeal, Rule 1925(b) statement, brief,
      or petition for allowance of appeal—thereby forfeiting his client’s
      right to appeal—and one who makes all necessary filings, but does
      so relative solely to claims he has not preserved for appeal,
      producing the same end. In both situations, counsel has forfeited
      all meaningful appellate review.

Id. at 434.

      In Parrish, the appellant in a capital murder case sought PCRA relief

after our Supreme Court affirmed his judgment of sentence on direct appeal.

Parrish, 224 A.3d at 686. The appellant timely filed his first PCRA petition

and the PCRA court appointed PCRA counsel.              Id.    Following lengthy

proceedings that included the filing of at least three amended PCRA petitions

raising numerous claims and two evidentiary hearings, the PCRA court denied

relief. Id. at 686-89. The appellant timely appealed the trial court’s order

denying PCRA relief to our Supreme Court. PCRA counsel timely filed a Rule

1925(b) statement, but the PCRA court found the statement too vague for the

court to determine which rulings that Appellant was contesting, and filed its

order denying relief, which the PCRA court addressed in its 1925(a) opinion.

Id. at 689-90


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      Following a remand for new appellate counsel and supplemental briefs,

our Supreme Court in Parrish, considered whether PCRA counsel’s filing of a

vague Rule 1925(b) statement in the appeal constituted ineffective assistance

of counsel per se. Id. at 690-91. The High Court summarized the history of

Rule 1925, id. at 691-96, and noted that current Rule 1925(c)(3) states:

      If an appellant represented by counsel in a criminal case was
      ordered to file a Statement and failed to do so or filed an untimely
      Statement, such that the appellate court is convinced that counsel
      has been per se ineffective, and the trial court did not file an
      opinion, the appellate court may remand for appointment of new
      counsel, the filing of a Statement nunc pro tunc, and the
      preparation and filing of an opinion by the judge.

Id. at 691-92 (quoting Pa.R.A.P. 1925(c)(3)).

      The Parrish Court concluded that the Rule 1925(b) statement filed in

that appeal was vague such that Rule 1925(b)(4)(vii) mandated waiver of all

appellate claims.   Id. at 700.    The Parrish Court discussed Rosado and

determined that PCRA counsel’s “filing of a vague Rule 1925(b) statement,

which has completely forfeited [the appellant’s] right to appellate review of

his collateral claims, constitutes ineffective assistance of assistance of counsel

per se.” Id. at 701-02.

      In its conclusion, the Parrish Court reasoned:

      Necessarily, then, we must determine the appropriate remedy in
      this situation. Our Court has indicated that, whenever post-
      conviction counsel’s performance is so deficient that it has entirely
      denied the post-conviction petitioner the right to appeal, remand
      to the lower court is the appropriate remedial action so that new
      counsel can take the necessary steps to restore that right.
      [Commonwealth v. Albrecht, 720 A.2d 693, 700-01 (Pa.
      1998)]; see also [Commonwealth v. Albert, 561 A.2d 736, 738

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     (Pa. 1989)] (because appellate brief filed in appeal from the denial
     of PCRA relief was so deficient as to render meaningful appellate
     review impossible, remand for the appointment of new appellate
     counsel to prepare a new appeal was required in order to
     effectuate petitioner’s post-conviction right to appellate review
     secured by Article V, Section 9).

     Here, [the appellant] has already received the appointment of new
     counsel; accordingly, all that remains is to remand this matter for
     the preparation of a new Rule 1925(b) statement nunc pro tunc.
     Thereafter, the PCRA court must then file a new Rule 1925(a)
     opinion in response.

Id. at 702 (footnote omitted).

     Here, although Appellant’s counsel filed a Rule 1925(b) statement, the

weight and sufficiency claims were based on conflated legal arguments, bald

assertions, and unpreserved claims that required the trial court to guess the

specific issues that Appellant sought to raise on appeal. See Hansley, 24

A.3d at 415. Under these circumstances, we conclude that the Rule 1925(b)

statement was vague and deficient, which is tantamount to filing no concise

statement at all. See id.

     Further, in addition to waiving his sufficiency and weight claims,

Appellant’s counsel filed a brief in which he abandoned any remaining claims

that he preserved or attempted to preserve in the Rule 1925(b) statement.

Instead, Appellant’s counsel raised an entirely new issue, which he did not

raise before the trial court. See Rosado, 150 A.3d at 434; see also Hansley,

24 A.3d at 415.     Accordingly, because Appellant’s counsel forfeited all

meaningful appellate review by filing a deficient Rule 1925(b) statement and

a brief in which he abandoned any properly preserved claims, he was



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ineffective per se. See Rosado, 150 A.3d at 434; see also Parrish, 224

A.3d at 702. We now consider the appropriate remedy in this case.

      Unlike the Parrish Court’s remand order, which was based, in part, on

Rule 1925(c)(4), neither Rosado nor our Rules of Appellate Procedure provide

for immediate nunc pro tunc relief by an appellate court. See Parrish, 224

A.3d at 686. Moreover, the general rule in Pennsylvania is that “claims of

ineffective assistance of counsel are to be deferred for PCRA review.”

Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013); see also

Rosado, 150 A.3d at 428.

      However, deferring the matter of Appellant’s counsel’s            per se

ineffectiveness to a PCRA proceeding is problematic. Appellant was convicted

of summary offenses, none of which carried the possibility of imprisonment,

and Appellant’s sentence consisted of only restitution, fines, and costs.

Therefore, Appellant is not eligible for PCRA relief.        See 42 Pa.C.S. §

9543(a)(1)(i) (stating that to be eligible for PCRA relief, the petitioner must,

in part, “plead and prove by a preponderance of the evidence that the

petitioner has been convicted of a crime under the laws of this Commonwealth

and is at the time relief is granted . . . currently serving a sentence of

imprisonment, probation or parole for the crime”); see also Commonwealth

v. James, 771 A.2d 33, 36 (Pa. Super. 2001) (holding that a PCRA petitioner

was ineligible for relief when the petitioner’s sentence and probationary period

expired   and   only   the   order   of   restitution   remained).   But    see

Commonwealth v. Delgros, 183 A.3d 352, 361 (Pa. 2018) (noting that a

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J-A01005-20



defendant sentenced to pay a fine was not eligible for PCRA relief, and further

holding that a trial court was required to consider claims of ineffective

assistance of counsel raised in a post-sentence motion).

      Instantly, although Appellant was convicted of summary offenses, he

has a constitutional right to file an appeal. See Commonwealth v. Stock,

679 A.2d 760, 764 (Pa. 1996) (discussing Pa. Const. Art. V, § 9). Therefore,

in order to protect Appellant’s constitutional right to appeal, we remand the

matter to the trial court for further proceedings consistent with this

memorandum. See Parrish, 224 A.3d at 686; Rosado, 150 A.3d at 434.

      Specifically, we remand this matter for the trial court to determine

whether Appellant is entitled to appointed appellate counsel. If so, the court

shall appoint new counsel within forty-five days of this decision, unless

Appellant elects to proceed pro se, or with private counsel. Given the recent

judicial emergency, the trial court shall inform this Court if more time is

required.

      Case remanded with instructions. Jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2020




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