J-S50044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: KASHIF ROBERTSON                           IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA




APPEAL OF: KASHIF ROBERTSON

                                                      No. 1535 MDA 2015


                Appeal from the Order Entered August 10, 2015
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-MD-0000771-2015


BEFORE: STABILE, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.:                           FILED AUGUST 23, 2016

        Appellant, Kashif Robertson, appeals pro se from the order denying his

motion for arrest of judgment and/or appeal nunc pro tunc. Upon review,

we vacate and remand for further proceedings.

        Appellant’s motion alleged the following facts:        On September 11,

2008, Appellant was cited for violating a Harrisburg ordinance by playing

loud noise on his car stereo. He claims to have responded to the citation by

pleading not guilty and requesting a trial, though the relevant Magisterial

District docket contains no notation of that plea.      On August 6, 2010, a

Magisterial District Justice (MDJ) issued a bench warrant for Appellant’s



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S50044-16



arrest,1 and on April 7, 2012, Appellant was arrested on that outstanding

bench warrant. Motion for Arrest of Judgment and/or Appeal Nunc Pro Tunc,

5/22/15, at 2.

       The Magisterial District docket states that Appellant was released on

April 18, 2012 after a guilty plea was entered on his behalf. The docket also

states that Appellant was not present when the guilty plea was entered. It is

unclear why Appellant would have been released from custody without first

being brought before the MDJ for entry of the plea and disposition of the

charges against him. Appellant claims he received no notice of entry of the

plea and that he would have challenged the legality of the arrest warrant if

he had received notice.

       Appellant filed in the Court of Common Pleas of Dauphin County a

motion for arrest of judgment and/or appeal nunc pro tunc in which he also

sought to proceed in forma pauperis. This motion was denied in an August

10, 2015, order stating that the motion was moot. The order explained:

          Magistrate District Judge George A. Zozos entered on April
          18, 2015 that the “Penalty Satisfied.” No monies are
          neither due, nor do active warrants exist. The Bench
          Warrant was returned served on April 7, 2012; as such the
          Bench Warrant was served upon the defendant and
          completed.

Order, 8/10/15.
____________________________________________


1
      At the time the bench warrant was issued, Appellant was incarcerated
on a separate matter, the nature of which is not disclosed in the record. He
was paroled on that matter in 2011.



                                           -2-
J-S50044-16



      On August 21, 2015, Appellant filed a timely appeal from the trial

court’s August 10, 2015 order. The trial court then issued an order, dated

September 28, 2015, and docketed October 2, 2015, directing Appellant to

file a concise statement of matters complained of on appeal within twenty-

one days of the date of entry of the order on the docket. 1925(b) Order,

10/2/15. As explained below, Appellant did not file a Rule 1925 statement.

      On November 6, 2015, the trial court issued an opinion, which in its

entirety states as follows:

                  [Appellant] appeals the Trial Court’s Order of
            August 10, 2015 which denied [Appellant’s] Motion
            for In Forma Pauperis and the Motion for Arrest of
            Judgment.

                  As set forth in our August 10, 2015 Order,
            [Appellant’s] requests for relief relate to a case
            before Magisterial District Judge George A. Zozos at
            Docket Number MJ-12105-NT-002038-2008. That
            docket reflects that on April 18, 2015, MJD Zozos
            entered an Order which reflected “Penalty Satisfied.
            No monies due nor do active warrants exist.” The
            record further reflects that a bench warrant was
            served     upon    [Appellant]     and    completed.
            Accordingly, we ruled that [Appellant’s] claim for
            Motion for Arrest of Judgment of Kashif Robertson
            was moot, and we denied in forma pauperis status.

                  [Appellant] filed a Notice of Appeal on August
            21, 2015.     We directed the filing of a Concise
            Statement of Matters Complained of on Appeal on
            September 28, 2015.        [Appellant] has filed no
            Concise Statement. Accordingly, claims or issues
            related to this court’s August 10, 2015 Order are
            waived.

Trial Court Opinion, 11/6/15, at 1.



                                      -3-
J-S50044-16



      On December 7, 2015, Appellant filed an application for leave to file

his Pa.R.A.P. 1925(b) statement nunc pro tunc.     The application explained

that he had filed a change of address with the Dauphin County Clerk of

Courts on September 20, 2015, and never received at his new address the

October 2, 2015 order directing his compliance with Pa.R.A.P. 1925(b).

      On January 12, 2016, the trial court denied Appellant’s application for

leave to file his Rule 1925(b) statement nunc pro tunc, stating in its order

that it had already filed an opinion in the matter “which addresses the merits

without need for a 1925 statement.”        Order, 1/12/16 (referencing the

November 6, 2015, opinion).        Notwithstanding the trial court’s order,

Appellant filed a Rule 1925(b) statement on January 12, 2015.

      On appeal to this Court, Appellant presents a single issue for our

review, as stated:

                 DID THE TRIAL COURT ERR IN DENYING
            APPELLANT’S MOTION FOR ARREST OF JUDGMENT
            AND OR APPEAL NUNC PRO TUNC UNDER 42
            PA.CONS.STAT.SEC 5504(B) AS MOOT WHERE THE
            MAGISTERIAL   DISTRICT   JUSTICE   COMMITTED
            FRAUD OR ITS EQUIVALENT BY INVALIDLY ISSUING
            A BENCH WARRANT FOR APPELLANT ABSENT THE
            REQUIRED NOTICE, HOLDING A HEARING IN
            ABSENTIA   AND    ENTERING   A    UNKNOWING,
            UNINTELLIGENT, AND INVOLUNTARY GUILTY PLEA
            ON HIS BEHALF ALTHOUGH AT THE TIME HE WAS IN
            THE CUSTODY OF [THE] DAUPHIN COUNTY PRISON,
            AND DENYING APPELLANT ANY NOTICE OF THAT
            COURT’S ACTION AND HOW TO PERFECT AN APPEAL
            OF   THAT   DECISION   WHICH     COLLATERALLY
            RESULTED IN HIS CONVICTION AT 2526 CR 2012,
            IN DAUPHIN COUNTY?



                                    -4-
J-S50044-16



Appellant’s Brief at 3.

      Initially, we note that our review of the certified record confirms

Appellant’s claim that on September 21, 2015, he filed correspondence with

the Dauphin County Clerk of Courts advising of his address change effective

September 20, 2015, from incarceration at SCI Houtzdale to his residential

address in Harrisburg.    This filing specifically states that Appellant “was

anticipating [the trial court] to issue a 1925(b) order . . . [and] to please

forward a copy of the order to the below listed address.” Letter, 9/21/15.

      Review of the record establishes that this did not happen. The record

includes the trial court’s October 2, 2015 order directing Rule 1925(b)

compliance, which states at the bottom of the page that it was mailed to

Appellant at 209 Institution Drive, Houtzdale, PA. Order, 10/2/15. This was

the former address for Appellant while he was incarcerated, not the

residence he provided in his September 21, 2015 correspondence to the

court. Accordingly, the record supports Appellant’s account of his attempts

to comply with Pa.R.A.P. 1925(b). As such, we cannot agree with the trial

court that Appellant waived his claims for failure to comply with Pa.R.A.P.

1925(b). See generally Commonwealth v. Hart, 911 A.2d 939, 940-41

(Pa. Super. 2006).

      On the merits, Appellant contends that he “was never produced at the

hearing held in this matter on April 18, 2012 before [the MDJ], as required

. . . as he was in the custody of [D]auphin [C]ounty [P]rison at the time of

the hearing and was not produced at the hearing as required by county

                                    -5-
J-S50044-16



rule.”      Appellant’s Brief at 8.            He adds that he “was continuously

incarcerated since the date of his arrest for the summary warrant issued,

and was denied personally from obtaining any information from the District

Justice’s office after many ignored requests.” Id. He also maintains that he

did not learn about the disposition of this matter as a non-present guilty plea

by the MDJ until May 4, 2015, when he received the docket statement from

his mother via U.S. Mail. Id. at 7-8.

         The docket entries in the certified record confirm that at MJ-12105-NT-

00020238-2008, Appellant was cited on September 11, 2008, pursuant to

local ordinance § 3-343 §§ 10 1, for “noise prohibited, loud stereo to

disturb.” The docket also indicates that Appellant was “case confined” in the

Dauphin County Prison on this offense from April 7, 2012 through April 18,

2012 for “failure to post collateral,” and that a guilty plea was entered to the

charge on April 18, 2012.         As noted, the docket’s “Disposition/Sentencing

Details” section also confirms that Appellant was not present for this

disposition, although it is unclear why he could not be produced to enter a

plea prior to his apparent release from custody on that same day. 2 In his

appeal, Appellant argues that he had a right to be present and that he would

have contested his guilt if he were present.


____________________________________________


2
      Our confusion about what happened is compounded by the
Commonwealth’s failure to file a Brief for Appellee, in violation of the Rules
of Appellate Procedure.



                                           -6-
J-S50044-16



      Given the foregoing, we are constrained to vacate the order denying

Appellant’s motion for arrest of judgment and to remand this case to the

trial court for further proceedings and for clarification of what happened on

April 18, 2012.     Although the trial court stated in its November 6, 2015

opinion that it denied Appellant’s motion for arrest of judgment because the

bench warrant was “completed” and Appellant’s claim was “moot,” it is

Appellant’s apparent contention that he never intended to plead guilty and

that the plea improperly was entered for him without his knowledge or

consent. If that is correct, then the judgment against him is not moot, even

though Appellant has no further penalty to satisfy under the MDJ’s

disposition. The trial court did not address Appellant’s claims relative to his

plea before the MDJ or Appellant’s request for a nunc pro tunc appeal from

that disposition.     Accordingly, we remand for further proceedings in

accordance with this memorandum.

      Order vacated and case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/23/2016




                                     -7-
