J-S70040-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                             :        PENNSYLVANIA
                       Appellee              :
                                             :
                 v.                          :
                                             :
 DARRYL DEBNAM                               :
                                             :
                       Appellant             :       No. 3362 EDA 2017

                  Appeal from the PCRA Order September 18, 2017
                In the Court of Common Pleas of Philadelphia County
                Criminal Division at No(s): CP-51-CR-0013582-2008


BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

JUDGMENT ORDER BY GANTMAN, P.J.:                  FILED NOVEMBER 06, 2018

      Appellant, Darryl Debnam, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which denied on the merits his

first and timely petition filed pursuant to the Post Conviction Relief Act at 42

Pa.C.S.A. §§ 9541-9546.           We remand with instructions and retain panel

jurisdiction.

      Following the denial of Appellant’s PCRA petition on September 18,

2017, Appellant timely filed a counseled notice of appeal on October 17, 2017.

On November 7, 2017, the court ordered Appellant to file a concise statement

of errors complained of on appeal, per Pa.R.A.P. 1925(b), no later than

November 28, 2017. The order also stated that Appellant’s non-compliance

may be deemed a waiver of his appellate issues. The court sent proper notice

of the order to counsel of record. The certified record, however, has no Rule
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1925(b) statement listed on the docket or contained in the original documents.

      Preliminarily, we observe Rule 1925(c)(3) allows the appellate Court to

remand “for the filing of a Statement nunc pro tunc and for the preparation

and filing of an opinion by the judge,” if the court ordered an appellant in a

criminal case to file a Rule 1925(b) statement, none was filed, and counsel’s

failure to do so appears to be per se ineffectiveness. Pa.R.A.P. 1925(c)(3).

Interpreting the revised Rule 1925(c)(3), this Court has held that counsel's

complete failure to file a court-ordered Rule 1925(b) statement is per se

ineffectiveness.   Commonwealth v. Burton, 973 A.2d 428, 431–32

(Pa.Super. 2009) (en banc). Generally, when waiver occurs due to counsel's

complete failure to file a Rule 1925(b) statement, remand is proper.

Commonwealth v. Mitchell, 986 A.2d 1241, 1244 n.4 (Pa.Super. 2009)

(noting counsel's failure to file court-ordered Rule 1925(b) statement required

remand for filing concise statement nunc pro tunc per revised Rule

1925(c)(3)); Commonwealth v. Scott, 952 A.2d 1190, 1192 (Pa.Super.

2008) (recognizing recent amendment to Rule 1925 relaxed automatic waiver

rule in criminal cases and stating: “[P]ursuant to the amended version of Rule

1925, the complete failure by counsel to file a Rule 1925(b) statement, as

ordered, is presumptively prejudicial and clear ineffectiveness, and this Court

is directed to remand for the filing of a Rule 1925(b) statement nunc pro tunc

and for the preparation and filing of an opinion by the trial judge”).

      Instantly, the record makes clear the court filed and served counsel with


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a proper Rule 1925(b) order, but the docket does not contain a statement filed

on Appellant’s behalf. The record reveals no apparent irregularities in the Rule

1925(b) order or its service. Importantly, the PCRA court held a hearing on

the merits of Appellant’s petition and issued an opinion in support of its

decision. Although neither the court nor the Commonwealth mentions Rule

1925 waiver, the issue raised on appeal is presented in general terms; so we

cannot say with certainty that a remand would serve no practical purpose.1

       Accordingly, we return this matter briefly to the PCRA court to allow

counsel to clarify the record, in the event counsel properly filed and served a

Rule 1925(b) statement.           If so, counsel must immediately certify the

statement as part of the certified record and ensure it is quickly forwarded

electronically to this Court. If counsel for some reason did not file and serve

the statement, counsel is directed straightaway to file and serve the statement

nunc pro tunc within seven (7) days of this remand. The PCRA court will then

have fifteen (15) days to supplement its existing opinion or inform us that it

intends to rely on the opinion as already written. Accordingly, we remand.

       Case remanded with instructions; panel jurisdiction is retained.


____________________________________________


1 Remand would not necessarily be required if, for example, counsel had filed
on appeal a “no-merit” letter/brief under Commonwealth v. Turner, 518 Pa.
491, 544 A.2d 927 (1988); Commonwealth v. Finley, 550 A.2d 213 (1988).
In that scenario, we could presume counsel’s Rule 1925 statement would
merely state counsel’s intent to file the Turner/Finley brief and a petition to
withdraw on appeal. The present case does not fit that situation. Therefore,
our remand is for the purpose of resolving the mystery of the missing Rule
1925 statement.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/18




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