J-S58036-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37



COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

ORVAL WALTER WATSON, JR.,

                            Appellee                  No. 507 WDA 2014


                  Appeal from the Order Dated March 11, 2014
                In the Court of Common Pleas of Fayette County
              Criminal Division at No(s): CP-26-CR-0001074-2013


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

DISSENTING MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 06, 2014




dissent. I believe we are compelled to conclude that the Commonwealth has

waived its issue for our review and affirm on that basis.

        On April 7, 2014, the trial court issued its amended Rule 1925(b) order

directing the Commonwealth to file a concise statement within 21 days. The



timely filed and served pursuant to subdivision (b), shall be deemed




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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this order was served

April 8, 2014.     Thirty-five days later, the Commonwealth filed its concise



                                                                  , the Commonwealth



an unintentional clerical error, the undersigned did not receive either order

and was unaware of [the] request [for a Rule 1925(b) statement] by this

Honorable



timely filed.

      In   a    footnote,   the   Majority   states   that   it   is   overlooking   the

                                                                       because the trial




address the merits of a criminal appeal where the appellant failed to file a

timely Rule 1925(b) statement if the trial court had adequate opportunity

and chose to prepare an opinion addressing the issues being raised on

                                                 Commonwealth v. Burton, 973

A.2d 428 (Pa. Super. 2008) (en banc) (addressing post-amendment Rule

1925 and ramifications regarding untimely Rule 1925(b) statement)).

                                              en banc decision in Greater Erie

Indus. Development Corp. v. Presque Isle Downs, 88 A.3d 222 (Pa.

Super. 2014), we expressly rejected application of this precise exception to

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Rule 1925(b) waiver, citing precedent of our Supreme Court.        Id. at 224

(citing Commonwealth v. Castillo, 888 A.2d 775, 779-780 (Pa. 2005)).

We declared:


        to review the merits of an untimely Rule 1925(b) statement

        those untimely raised issues. Under current precedent, even if a
        trial court ignores the untimeliness of a Rule 1925(b) statement
        and addresses the merits, those claims still must be considered

        concise statement of [errors] complained of on appeal pursuant
        to Rule 1925(b), the appellant must
        Hess v. Fox Rothschild, LLP, 925 A.2d 798, 803 (Pa. Super.
        2007) (citing Castillo, 888 A.2d at 780) (emphasis in original);
        see Feingold v. Hendrzak, 15 A.3d 937, 940 (Pa. Super.
        2011).

Id. at 225 (emphasis added).1

        In light of Greater Erie, I believe we are bound to deem the




                             t to accept its Rule 1925(b) statement as timely



Majority Decision at 4 n.2; see Commonwealth v. Taylor, 671 A.2d 235,

                                                                 ation of Rule

1925(b) is expressly reserved to the appellate courts, and not to the trial
____________________________________________


1
    We did recognize in Greater Erie that waiver could be excused if the trial

rule. Here, as stated supra                         er fully complied with the
mandates of Rule 1925(b).



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                    Commonwealth v. Donahue, 630 A.2d 1238, 1242-



issue waived and affirm the tri




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