J-S26031-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARK HOWARD                                :
                                               :
                       Appellant               :   No. 1715 WDA 2019

        Appeal from the Judgment of Sentence Entered October 21, 2019
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                           CP-25-SA-0000121-2019


BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                            FILED JUNE 30, 2020

        Mark Howard (Howard) appeals from the judgment of sentence imposed

following his bench conviction in the Court of Common Pleas of Erie County

(trial court) of the summary offense of harassment for his course of conduct

in the form of verbal altercations with his neighbor, June Walton (Walton).1

Because we find that Howard’s Pa.R.A.P. 1925(b) statement is so deficient

that it results in waiver of all appellate issues and constitutes ineffective

assistance of counsel per se, we remand for further proceedings consistent

with this Memorandum.



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. § 2709(a)(3).
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                                       I.

      Howard and Walton are adjacent property owners in Millcreek Township

and have been involved in several incidents at their properties requiring police

intervention. The allegations center on the parties yelling at one another and

engaging in intimidating and harassing behaviors, such as name-calling and

shouting expletives, as well as Howard releasing two German Shepard dogs

onto Walton’s property. Policer Officer Katrina Kuhl responded to most of the

calls and instructed the parties to stay away from one another after each

occasion. A July 9, 2019 dispute at an Aldi’s led to the instant charge, during

which Walton called police claiming that Howard and his wife followed her to

the store and were yelling obscenities at her in the parking lot. Officer Kuhl

spoke to both parties at the Aldi’s. Howard denied following Walton to the

store and claimed that Walton starting yelling at him and his wife when they

arrived and began filming them. Officer Kuhl issued citations for harassment

to both Howard and Walton. A video surveillance tape at the Aldi’s captured

a portion of the incident and Officer Kuhl viewed it before the originals were

destroyed as part of the store’s routine recordkeeping protocol.

      On July 31, 2019, the Magisterial District Judge presiding over the case

convicted Howard and Walton of summary harassment and sentenced each of

them to a fine plus costs. Howard and Walton filed notices of appeal from the

summary convictions and the trial court held a hearing on both appeals on




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October 21, 2019, at which Howard, Walton and Officer Kuhl testified.2 The

trial court denied Howard’s summary appeal and found him guilty of

harassment; it vacated Walton’s summary conviction. The court sentenced

Howard to a fine of $150.00 plus costs. It denied Howard’s post-sentence

motions. This timely appeal followed. Howard filed a 1925(b) statement and

the trial court entered an opinion. See Pa.R.A.P. 1925(a)-(b).

                                               II.

       In his challenge to his conviction of summary harassment, Howard

contends the trial court violated his due process rights by failing to follow

Pennsylvania Rules of Criminal Procedure 121 and 462 relating to his right to

counsel and the trial court’s obligation to announce the sentence in open court,

respectively.      Howard also challenges the sufficiency of the evidence

supporting his conviction.

                                               A.

       Preliminarily, we must address the adequacy of Howard’s Rule 1925(b)

statement to preserve these claims. The position of the trial court and the

Commonwealth is that Howard waived his issues by failing to include them

with specificity in his Rule 1925(b) statement, in which he listed only vague

generic claims challenging the sufficiency and weight of the evidence and

____________________________________________


2Howard chose to go forward with the proceeding without counsel, who could
not appear due to a death in his family. (See N.T. Trial, 10/21/19, at 3).




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averring that the verdict was contrary to the law. (See Trial Court Opinion,

1/22/20, at 2-3, 8; Commonwealth’s Brief, at 3; Rule 1925(b) statement,

12/19/19).3

        It is well-settled that “[a]ny issues not raised in a Pa.R.A.P. 1925(b)

statement will be deemed waived.” Commonwealth v. Kearney, 92 A.3d

51, 59 (Pa. Super. 2014), appeal denied, 101 A.3d 102 (Pa. 2014) (citation

omitted); see also Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the

Statement . . . are waived.”).            Furthermore, with respect to Howard’s

sufficiency claim, “we have repeatedly held that in order to preserve a

challenge to the sufficiency of the evidence on appeal, an appellant’s Pa.R.A.P.

1925(b) statement must state with specificity the element or elements upon

which     the   appellant     alleges    that    the   evidence   was   insufficient.”

Commonwealth v. Ellison, 213 A.3d 312, 320 (Pa. Super. 2019), appeal


____________________________________________


3   Specifically, Howard raised the following allegations of error:

        1. Trial Judge erred by finding Defendant guilty when the
        Commonwealth failed to provide sufficient evidence.

        2. Trial Judge erred by failing to grant a judgment of acquittal
        based on the sufficiency of the evidence.

        3. Trial Judge erred by failing to grant a new trial based on the
        weight of the evidence.

        4. Trial Judge erred by failing to grant an arrest of judgment since
        the verdict is contrary to the law.

(Rule 1925(b) Statement, 12/19/19).


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denied, 220 A.3d 531 (Pa. 2019) (citation omitted).         “Therefore, when an

appellant’s 1925(b) statement fails to specify the element or elements upon

which the evidence was insufficient, the sufficiency issue is waived on appeal.”

Id. (citation omitted).

      Instantly, in his Rule 1925(b) statement, Howard not only failed to

identify the elements upon which the he alleges the evidence was insufficient,

he neglected to mention his due process claims relating to Pa.R.Crim.P. 121

and 462 at all. (See Rule 1925(b) Statement, 12/19/19). Accordingly, we

agree with the trial court and the Commonwealth that his issues on appeal are

waived.     See Commonwealth v. Parrish, 224 A.3d 682, 701 (Pa. 2020)

(Where appellate counsel has wholly failed to identify with sufficient detail the

issues to be raised on appeal in a Rule 1925(b) statement, those issues are

waived).

                                           B.

      Because this disposition results in the waiver of all of Howard’s claims,

we next address the impact of counsel’s inadequate filing. The recognized

instances    of   per   se   ineffectiveness    are   extremely   narrow.   See

Commonwealth v. Rosado, 150 A.3d 425, 427 (Pa. 2016); see also

Pa.R.A.P. 1925(c)(3) (listing certain instances where remand is appropriate in

criminal cases due to per se ineffective assistance of counsel). In Rosado,

our Supreme Court held in a case on direct appeal that “errors which

completely foreclose appellate review amount to a constructive denial of


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counsel and thus ineffective assistance per se . . . ” Id. at 438 (emphasis in

original).   Where per se ineffectiveness has been established, counsel’s

ineffectiveness will be presumed and need not be proven. See id. at 428.

       In Parrish, supra, our Supreme Court considered whether counsel’s

filing of a deficient Rule 1925(b) statement resulting in waiver of all claims on

appeal constituted ineffective assistance of counsel per se. Citing Rosado,

the Parrish Court held that counsel’s filing of a vague 1925(b) statement that

effectively forfeited the defendant’s right to appellate review constitutes per

se ineffectiveness. See Parrish, supra at 701-02.4

       Accordingly, consistent with the foregoing authority, we remand this

case to the trial court to appoint new counsel for Howard and for the

preparation of a new Rule 1925(b) statement nunc pro tunc. Thereafter, the

trial court must file a new Rule 1925(a) opinion in response.

       Case remanded with instructions. Jurisdiction is relinquished.




____________________________________________


4Although Parrish involved an appeal pursuant to the Post Conviction Relief
Act, 42 Pa.C.S. §§ 9541-9546, the same principles relating to Rule 1925(b)
apply on direct appeal and the Court relied heavily on Rosado. See id. at
701.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/30/2020




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