J-A25044-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TERON LEWIS,

                            Appellant                 No. 849 EDA 2013


            Appeal from the Judgment of Sentence January 11, 2013
                in the Court of Common Pleas of Chester County
               Criminal Division at No.: CP-15-CR-0003255-2011


BEFORE: DONOHUE, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED DECEMBER 18, 2014

        Appellant, Teron Lewis, appeals from the judgment of sentence

imposed following his jury conviction of criminal attempt to commit first-

degree murder, aggravated assault, aggravated assault-causing bodily injury

with a deadly weapon, criminal conspiracy to commit first-degree murder,

and criminal conspiracy to commit aggravated assault.1 We affirm.

        The background of this case is a protracted procedural quagmire. We

take the relevant facts and procedural history from the trial court’s May 9,

2013 opinion and our independent review of the record. On May 22, 2006,

Appellant and co-conspirator Omega Peoples approached the victim, Odell
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  18 Pa.C.S.A. §§ 901(a), 2702(a)(1), 2702(a)(4), 903(c), and 903(c),
respectively.
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Cannon, from two different directions as Mr. Cannon exited a house in

Coatesville, Pennsylvania.       A gunfight ensued, during which Appellant shot

Mr. Cannon six times. Mr. Cannon was wearing body armor and he carried a

revolver. He fired six shots at Mr. Peoples and Appellant, striking Peoples

three times.     Appellant fled from the scene and was later arrested.      Mr.

Peoples was found within minutes of the shooting, hiding under a nearby

minivan.

       Appellant proceeded to a jury trial, and on October 19, 2012, the jury

found him guilty of the above-stated offenses. The trial court ordered the

preparation of a pre-sentence investigation (PSI) report, and on January 11,

2013, it sentenced Appellant to an aggregate term of not less than twenty-

two and a half nor more than forty-five years’ incarceration. Appellant filed

timely post-sentence motions, which the court denied on February 25, 2013

following oral argument.

       Appellant filed a timely notice of appeal.2 On March 21, 2013, the trial

court entered an order directing Appellant to file a Rule 1925(b) statement
____________________________________________


2
   Appellant initially filed a pro se notice of appeal on March 14, 2013,
purporting to appeal from the October 19, 2012 jury verdict. (See Notice of
Appeal, 3/14/13, at 1). Appellant then evidently retained current counsel,
who filed an amended notice of appeal on March 20, 2013, purporting to
appeal from the court’s order denying his post-sentence motions. (See
Amended Notice of Appeal, 3/20/13, at 1). However, “a direct appeal in a
criminal proceeding lies from the judgment of sentence.” Commonwealth
v. Preacher, 827 A.2d 1235, 1236 n.1 (Pa. Super. 2003) (citation omitted).
Therefore, this appeal properly lies from the judgment of sentence and not
from the jury’s verdict or the court’s post-sentence order. See id.



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within twenty-one days, by April 11, 2013.             See Pa.R.A.P. 1925(b).    The

order advised, in bold type, that “Any issue not properly included in the

Statement shall be deemed waived.”                      (Concise Statement Order,

3/21/13, at 1) (emphasis in original).              Appellant filed a Rule 1925(b)

statement on April 17, 2013, six days late.3 The trial court entered a Rule

1925(a) opinion on May 9, 2013. See Pa.R.A.P. 1925(a).

        On November 15, 2013, Appellant filed an application for relief4 with

this Court (Application for Relief), requesting that we remand the case to the

trial court to permit him to file a supplemental Rule 1925(b) statement.

(See Application for Relief, 11/15/13, at 1-2).            Appellant averred that a

supplemental filing was necessary because he omitted “a major issue” from

the original Rule 1925(b) statement.             (Id. at 1).   In the Application for

Relief, Appellant did not acknowledge or explain the untimeliness of his

original Rule 1925(b) statement, nor did he specify the important issue he

omitted from the statement. (See id. at 1-2). On December 6, 2013, this

Court entered a per curiam order directing Appellant to provide written

notice of the issue omitted from the original Rule 1925(b) statement;

____________________________________________


3
 On April 24, 2013, at the trial court’s direction, Appellant filed an amended
concise statement correcting a typographical error pertaining to Appellant’s
name contained in the original Rule 1925(b) statement. (See Trial Court
Opinion, 5/09/13, at 3).
4
    See Pa.R.A.P. 123(a).




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Appellant subsequently submitted notice of two issues.               (See Order,

12/06/13, at 1; see also Notice, 12/17/13, at 1). On January 2, 2014, this

Court filed a per curiam order granting the Application for Relief and

remanding the case to the trial court.           (See Order, 1/02/14, at 1).   The

order permitted Appellant to file a supplemental Rule 1925(b) statement

within thirty days of the filing date of the order, by February 3, 2014.5 (See

Order, 1/02/14, at 1).           It also directed the trial court to prepare a

supplemental Rule 1925(a) opinion. (See id.).

       On February 4, 2014, one day past the thirty-day deadline set by this

Court, Appellant filed a supplemental Rule 1925(b) statement.              In the

supplemental statement, Appellant raised five issues, four of which he did

not include in the original Rule 1925(b) statement. (See Supplemental Rule

1925(b) Statement, 2/04/14, at unnumbered pages 1-2; Rule 1925(b)

Statement 4/17/13, at unnumbered pages 1-2).             The trial court entered a

supplemental Rule 1925(a) opinion on February 11, 2014.

       Appellant raises the following issues for our review:

       1. [Whether] the trial court erred by denying Appellant’s motion
       in limine to exclude certain evidence that was more prejudicial
       than probative[?]



____________________________________________


5
 The last day of the thirty-day period, February 1, 2014, fell on a Saturday.
Therefore, Appellant had until that Monday to file the supplemental Rule
1925(b) statement. See 1 Pa.C.S.A. § 1908.




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      2. [Whether] Appellant is entitled to an arrest of judgment for
      his convictions in this case where the Commonwealth failed to
      prove each and every element of the following crimes charged
      (criminal attempt to commit first-degree murder, conspiracy to
      commit first-degree murder, conspiracy to commit aggravated
      assault, and aggravated assault) beyond a reasonable doubt
      thereby depriving the Appellant of his liberty without a fair trial
      and due process, as guaranteed by the Fifth, Sixth, and
      Fourteenth Amendments of the United States Constitution and
      corresponding laws of this Commonwealth[?]


      3. [Whether] the trial court erred by allowing Rahlik Gore to
      testify about and define the term “young boys” to the jury as it
      was more prejudicial than probative[?]

(Appellant’s Brief, at 4).

      Before we may address the merits of Appellant’s issues, we must

determine whether he properly preserved them for our review.                Rule

1925(b) provides, in relevant part:

      (b) Direction to file statement of errors complained of on
      appeal; instructions to the appellant and the trial court.—
      If the judge entering the order giving rise to the notice of appeal
      (“judge”) desires clarification of the errors complained of on
      appeal, the judge may enter an order directing the appellant to
      file of record in the trial court and serve on the judge a concise
      statement of the errors complained of on appeal (“Statement”).

                                   *    *    *

            (2) Time for filing and service.—The judge shall allow the
      appellant at least 21 days from the date of the order’s entry on
      the docket for the filing and service of the Statement. Upon
      application of the appellant and for good cause shown, the judge
      may enlarge the time period initially specified or permit an
      amended or supplemental Statement to be filed. . . . In
      extraordinary circumstances, the judge may allow for the filing
      of a Statement or amended or supplemental Statement nunc pro
      tunc.



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             (3) Contents of order.—The judge’s order directing the
      filing and service of a Statement shall specify:

            (i) the number of days after the date of entry of the
            judge’s order within which the appellant must file
            and serve the Statement;

            (ii) that the Statement shall be filed of record;

            (iii) that the Statement shall be served on the judge
            pursuant to paragraph (b)(1);

            (iv) that any issue not properly included in the
            Statement timely filed and served pursuant to
            subdivision (b) shall be deemed waived.

            4) Requirements; waiver.

                                *     *     *
                   (vii) Issues not included in the Statement
            and/or not raised in accordance with the provisions
            of this paragraph (b)(4) are waived.

Pa.R.A.P. 1925(b)(2),(3),(4)(vii).

      An en banc panel of this Court has held:

            Our    Supreme     Court   intended     the   holding   in
      [Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998)] to operate
      as a bright-line rule, such that “failure to comply with the
      minimal requirements of Pa.R.A.P. 1925(b) will result in
      automatic waiver of the issues raised.” Commonwealth v.
      Schofield, . . . 888 A.2d 771, 774 ([Pa.] 2005) (emphasis
      added); see also [Commonwealth v.] Castillo, 888 A.2d
      [775, 780 (Pa. 2005)]. Given the automatic nature of this type
      of waiver, we are required to address the issue once it comes to
      our attention. Indeed, our Supreme Court does not countenance
      anything less than stringent application of waiver pursuant to
      Rule 1925(b): “[A] bright-line rule eliminates the potential for
      inconsistent results that existed prior to Lord, when . . .
      appellate courts had discretion to address or to waive issues
      raised in non-compliant Pa.R.A.P. 1925(b) statements.” Id.



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        Succinctly put, it is no longer within this Court’s discretion to
        ignore the internal deficiencies of Rule 1925(b) statements.

                                    *    *     *

               Stated simply, it is no longer within this Court’s discretion
        to review the merits of an untimely Rule 1925(b) statement
        based solely on the trial court’s decision to address the merits of
        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
        waived: Whenever a trial court orders an appellant to file a
        concise statement of [errors] complained of on appeal pursuant
        to Rule 1925(b) the appellant must comply in a timely manner.

Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d

222, 224-25 (Pa. Super. 2014) (en banc) (emphases in original) (some

citations and quotation marks omitted); see id. at 227 (holding that this

Court cannot address merits of issues on appeal where appellant failed to

timely file Rule 1925(b) statement).

        Here, the record reflects that, on March 21, 2013, the trial court issued

an order in technical compliance with Rule 1925(b) requiring Appellant to file

a statement “no later than twenty-one (21) days from the date of this

order’s entry on the clerk’s docket.”        (Order, 3/21/13, at 1).   The order

provided in bold type: “Any issue not properly included in the

Statement shall be deemed waived.”                 (Id.) (emphasis in original).

Appellant filed his untimely concise statement six days late, on April 17,

2013.

        Appellant then filed an Application for Relief with this Court, which we

granted based on counsel’s representation that he had omitted “a major

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issue” from the original Rule 1925(b) statement; he neglected to inform this

Court that the original statement was untimely.             (Application for Relief,

11/15/13, at 1; see id. at 1-2).          Although we granted the Application for

Relief, Appellant failed to file the supplemental Rule 1925(b) statement

within the thirty-day time-period prescribed by this Court.            (See Order,

1/02/14, at 1).          Further, following remand, Appellant did not simply

supplement his original Rule 1925(b) statement to include the “major issue”

omitted from it; he filed a supplemental statement raising five issues, four of

which were not included in the original statement.          (Application for Relief,

11/15/13, at 1; see also Supplemental Rule 1925(b) Statement, 2/04/14,

at unnumbered pages 1-2).

       Based on this record, because Appellant did not timely file his Rule

1925(b) statement or supplemental statement, we conclude that he failed to

comply with the minimal requirements of Rule 1925(b). Consequently, he

has    waived      all    of     his   issues    on   appeal.      See    Pa.R.A.P.

1925(b)(3)(iv),(4)(vii); see also Greater Erie Indus. Dev. Corp., supra

at 224-25.     Accordingly, we may not address the merits of those claims.

See Greater Erie Indus. Dev. Corp., supra at 227.6


____________________________________________


6
  We recognize that our Rules of Appellate Procedure provide for limited
instances in which appellate courts may remand criminal cases to trial courts
in order to cure defects in Rule 1925(b) statements. In relevant part,
Pa.R.A.P. 1925(c) permits appellate courts in criminal cases to remand in the
(Footnote Continued Next Page)


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      Judgment of sentence affirmed.




                       _______________________
(Footnote Continued)

following three        circumstances     related to      the   filing of Rule 1925(b)
statements:

            (1) An appellate court may remand [in a criminal case]
      for a determination as to whether a Statement has been filed
      and/or served or timely filed and/or served.


                                        *        *   *

            (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.

            (4) In a criminal case . . . [where counsel filed an
      Anders/McClendon brief] in lieu of filing a Statement [and]
      upon review of the Anders/McClendon brief, the appellate
      court believes that there are arguably meritorious issues for
      review[.] . . .

Pa.R.A.P. 1925(c)(1), (3)-(4). None of these circumstances is applicable in
the present case. With respect to Pa.R.A.P. 1925(c)(1), the record reflects
that neither Appellant’s original Rule 1925(b) statement nor his
supplemental statement were timely filed.          With regard to Pa.R.A.P.
1925(c)(3), the official note to the rule makes clear that remand is available
“only when the appellant has completely failed to respond to an order to file
a Statement. . . . [W]hen waiver occurs due to the improper filing of a
Statement . . . relief may occur only through the post-conviction relief
process[.]” Pa.R.A.P. 1925(c)(3), Note. Here, Appellant has not completely
failed to respond to the court’s order directing him to file a Rule 1925(b)
statement. Finally, with respect to Pa.R.A.P. 1925(c)(4), counsel is privately
retained and has not filed an Anders/McClendon brief. Therefore, remand
is not available in the instant case.



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     Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/2014




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