J-S12025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JEFF LAVALLIERE,

                            Appellant                 No. 1056 EDA 2014


             Appeal from the Judgment of Sentence March 14, 2014,
              In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0000137-2013, CP-51-CR-0000139-
                                      2013


BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                        FILED FEBRUARY 27, 2015

        Appellant, Jeff Lavalliere, appeals from the judgment of sentence

entered following his convictions at docket number CP-51-CR-0000137-2013

of one count each of simple assault, possessing instruments of crime

(“PIC”), and recklessly endangering another person (“REAP”), and at docket

number CP-51-CR-0000139-2013 of one count of REAP.             For the following

reasons, we remand for the filing of a Pa.R.A.P. 1925(b) statement, a trial

court opinion pursuant to Pa.R.A.P. 1925(a), and the issuance of a new

briefing schedule.



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      At the conclusion of a nonjury trial, Appellant was convicted of the

crimes stated above.    On January 21, 2014, Appellant filed a motion for

judgment of acquittal, which the trial court denied on March 14, 2014.    Also

on that date, at docket number CP-51-CR-0000137-2013, the trial court

sentenced Appellant to serve a term of probation of two years on the

conviction of simple assault, a term of probation of three years on the

conviction of PIC, and no further penalty on the conviction of REAP.       At

docket number CP-51-CR-0000139-2013 the trial court sentenced Appellant

to serve a term of probation of two years on the conviction of REAP.       All

probationary terms were ordered to be served concurrently.       On April 2,

2014, Appellant filed a timely notice of appeal.

      On May 29, 2014, the trial court issued an order directing Appellant to

file a Pa.R.A.P. 1925(b) statement within twenty-one days.               Thus,

Appellant’s Pa.R.A.P. 1925(b) statement was due on or before June 19,

2014. However, Appellant’s counsel never filed a timely Pa.R.A.P. 1925(b)

statement.    On June 24, 2014, the trial court issued an opinion, which

highlighted Appellant’s failure to file a Pa.R.A.P. 1925(b) statement and

indicated that all issues have been waived for purposes of appeal.

Coincidentally, Appellant’s counsel untimely filed a Pa.R.A.P. 1925(b)

statement on June 24, 2014.

      Appellant has presented the following issues for our review:

      I. Whether the trial court abused its discretion by dismissing
      [Appellant’s] appeal where [Appellant] timely filed a statement

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      of errors upon receiving notification of a request to file the
      statement.

      II. Whether [Appellant’s] conviction for simple assault, reckless
      endangerment of another person, and possession of an
      instrument of crime should be vacated where the evidence at
      trial was legally insufficient to support the convictions?

      III. Whether [Appellant’s] conviction for simple assault and
      possession of an instrument of crime should be vacated because
      the conviction is against the weight of the evidence and
      [Appellant] was acquitted of aggravated assault?

      IV. Whether [Appellant’s] conviction for reckless endangerment
      of another person should be vacated because it is against the
      weight of the evidence and [Appellant] was acquitted of
      aggravated assault?

      V. Whether [Appellant’s] conviction should be vacated because
      the trial court erred by failing to consider the character evidence
      of one of the witnesses?

      VI. Whether [Appellant] should be granted a new trial because
      the verdict is inconsistent with the evidence presented at trial?

Appellant’s Brief at 5-6.    Before we address the merits of the issues

presented, we first consider the ramifications of Appellant’s failure to file a

timely Pa.R.A.P. 1925(b) statement.

      In Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998), our

Supreme Court held that if an appellant is directed to file a concise

statement of matters to be raised on appeal pursuant to Pa.R.A.P. 1925(b),

any issues not raised in that statement are waived. In Commonwealth v.

Butler, 812 A.2d 631 (Pa. 2002), the Court expanded upon Lord, holding

that waiver automatically applies when a Pa.R.A.P. 1925(b) statement is not

filed or if an issue is not included in the Pa.R.A.P. 1925(b) statement, even

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when the question of waiver has not been raised by the other party and

even when the trial court has chosen to overlook the failure by addressing

the issues it assumed would be raised.         However, our Supreme Court

subsequently amended Pa.R.A.P. 1925 to include a procedure for appellate

courts to follow when a criminal appellant’s counsel fails to file a Pa.R.A.P.

1925(b) statement.

      The pertinent part of the amended rule is found in subsection (c)(3),

which provides as follows:

            (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.

Pa.R.A.P. 1925(c)(3).     The official note to subsection (c)(3) offers the

following additional guidance:

      This paragraph allows an appellate court to remand in criminal
      cases only when the appellant has completely failed to respond
      to an order to file a Statement. It is thus narrower than (c)(2),
      above. Prior to these amendments of this rule, the appeal was
      quashed if no timely Statement was filed or served; however,
      because the failure to file and serve a timely Statement is a
      failure to perfect the appeal, it is presumptively prejudicial and
      “clear” ineffectiveness. See, e.g., Commonwealth v. Halley,
      582 Pa. 164, 172, 870 A.2d 795, 801 (2005); Commonwealth
      v. West, 883 A.2d 654, 657 (Pa. Super. 2005). Direct appeal
      rights have typically been restored through a post-conviction
      relief process, but when the ineffectiveness is apparent and per
      se, the court in West recognized that the more effective way to
      resolve such per se ineffectiveness is to remand for the filing of a
      Statement and opinion. See West, 883 A.2d at 657. The
      procedure set forth in West is codified in paragraph (c)(3). As
      the West court recognized, this rationale does not apply when
      waiver occurs due to the improper filing of a Statement. In such

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      circumstances, relief may occur only through the post-conviction
      relief process and only upon demonstration by the appellant
      that, but for the deficiency of counsel, it was reasonably
      probable that the appeal would have been successful.           An
      appellant must be able to identify per se ineffectiveness to
      secure a remand under this section, and any appellant who is
      able to demonstrate per se ineffectiveness is entitled to a
      remand. Accordingly, this paragraph does not raise the concerns
      addressed in Johnson v. Mississippi, 486 U.S. 578, 588-89
      (1988) (observing that where a rule has not been consistently or
      regularly applied, it is not--under federal law--an adequate and
      independent     state     ground    for   affirming   petitioner’s
      conviction.)[.]

Pa.R.A.P. 1925, note (2007). Accordingly, notwithstanding the decisions in

Lord and Butler, pursuant to the amended version of Pa.R.A.P. 1925, the

complete failure by counsel to file a Pa.R.A.P. 1925(b) statement, as

ordered, is presumptively prejudicial and clear ineffectiveness.     In such

cases, this Court is directed to remand for the filing of a Pa.R.A.P. 1925(b)

statement nunc pro tunc and for the preparation and filing of an opinion by

the lower court.

      An en banc panel of this Court subsequently clarified, in the following

discussion, that the same rationale applies for untimely filings:

             The complete failure to file the [Pa.R.A.P.] 1925 concise
      statement is per se ineffectiveness because it is without
      reasonable basis designed to effectuate the client’s interest and
      waives all issues on appeal. Likewise, the untimely filing is per
      se ineffectiveness because it is without reasonable basis
      designed to effectuate the client’s interest and waives all issues
      on appeal. Thus untimely filing of the [Pa.R.A.P.] 1925 concise
      statement is the equivalent of a complete failure to file. Both
      are per se ineffectiveness of counsel from which appellants are
      entitled to the same prompt relief.

                                     ***

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            [I]f there has been an untimely filing, this Court may
      decide the appeal on the merits if the trial court had adequate
      opportunity to prepare an opinion addressing the issues being
      raised on appeal.

Commonwealth v. Burton, 973 A.2d 428, 432-433 (Pa. Super. 2009) (en

banc) (footnote omitted).

      Instantly, appointed counsel was ineffective per se because he filed

the Pa.R.A.P. 1925(b) statement in an untimely manner. Burton, 973 A.2d

at 433. In addition, although the trial court prepared an opinion pursuant to

Pa.R.A.P. 1925(a), it indicated that all issues had been waived due to failure

to file the Pa.R.A.P. 1925(b) statement by the time of preparation of the trial

court’s opinion. Consequently, we are compelled to remand for the filing of

a Pa.R.A.P. 1925(b) statement nunc pro tunc, and for the preparation of a

Pa.R.A.P. 1925(a) opinion by the trial court.

      Upon remand, the trial court is directed to order Appellant to file a

Pa.R.A.P. 1925(b) statement within twenty-one days of the trial court’s

receipt of the record from the Superior Court Prothonotary. The trial court

shall then prepare and file a Pa.R.A.P. 1925(a) opinion within forty-five days

of the filing of the Pa.R.A.P. 1925(b) statement.      After the trial court’s




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certification of its decision, the Superior Court Prothonotary is directed to

establish a new briefing schedule for the parties.1

       Remanded for further proceedings consistent with this memorandum.

Panel jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/2015




____________________________________________


1
  See Commonwealth v. Scott, 952 A.2d 1190, 1192 (Pa. Super. 2008)
(retaining jurisdiction when remanding for the filing of a Rule 1925(b)
statement and preparation of a trial court opinion).



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