J-S46015-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                    v.

LARRY L. BURDEN, JR.

                         Appellant                   No. 1892 MDA 2016


                Appeal from the PCRA Order October 10, 2016
              In the Court of Common Pleas of Lycoming County
                          Criminal Division at No(s):
                           CP-41-CR-0001472-2011
                           CP-41-CR-0001767-2011


BEFORE: BOWES, J., OLSON, J., AND STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.:                       FILED SEPTEMBER 21, 2017

      Larry Burden, Jr. appeals from the order denying him PCRA relief. We

find that Appellant has waived all issues and therefore affirm.

      We previously adopted the trial court’s factual history, which we repeat

herein.

      At approximately 9:50 a.m. on October 9, 2011, the Rite Aid
      store on Fifth Street was robbed. The robber approached the
      clerk and told the clerk to get behind the register and give him
      all the money. As the clerk was walking around the counter, the
      robber said “hurry or I’ll hurt you.” The clerk noticed that the
      robber kept his hands inside the pouch of his hoodie, where
      there was a bulge that the clerk recognized as the outline of a
      gun. The clerk opened the cash drawer and handed the robber
      $149, which consisted predominantly of $1 bills.

      A customer observed the robbery take place and, while calling 9-
      1-1, the customer followed the perpetrator. The customer

* Former Justice specially assigned to the Superior Court.
J-S46015-17



      observed the robber remove some of his clothing and discard it.
      When the police arrived, the customer pointed out the robber to
      them.

      Officers took the robber into custody and he was identified as
      [Appellant]. As a result of a search incident to arrest, the officers
      discovered a .357 revolver loaded with four rounds of live
      ammunition in [Appellant’s] waistband, the $149 in cash stolen
      from Rite Aid, and nine baggies of crack cocaine. The police also
      recovered a hat and hoodie that [Appellant] discarded along the
      route he took after he left the store. During booking, [Appellant]
      commented to the officers, “You got the money; you got what
      you want.”

      The police charged [Appellant] with persons not to possess a
      firearm without a license, terroristic threats, theft by unlawful
      taking, receiving stolen property, possessing instruments of
      crime, simple assault by physical menace, and three counts of
      robbery. A jury trial was held on all of the counts except: one
      count of robbery, which was withdrawn by the Commonwealth;
      and the persons not to possess a firearm charge, which was
      severed and tried non-jury. [Appellant] was convicted of all the
      charges.

      On July 3, 2012, the Court imposed an aggregate sentence of
      9½ to 20 years [of] incarceration in a state correctional
      institution. . . .

Commonwealth v. Burden, 2013 WL 11274819, at *1 (quoting Trial Court

Opinion, 8/28/12, at 1-2) (alterations in original).

      Appellant sought relief on direct appeal, which we denied by

unpublished memorandum.        Id.   Appellant did not timely pursue further

review with our Supreme Court.              However, he successfully sought

reinstatement of his right to seek discretionary review nunc pro tunc, which

was subsequently denied on April 16, 2015.




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       Appellant filed a timely pro se PCRA petition on January 19, 2016,

raising seven ineffectiveness claims.          Appointed counsel filed an amended

petition on June 6, 2016, raising three claims:

       At trial, the opening statements of [the] prosecutor . . . inflamed
       the jury when comparing [Appellant] to John Dillinger . . . . the
       lack of objection resulted in prejudice in the form of an inflamed
       jury.
       ....

       Trial counsel . . . never allowed [Appellant] to view the video
       surveillance. [Appellant] believes there would be exculpatory
       evidence on the video.
       ....

       [Appellant] had asked trial counsel . . . to explore the possibility
       of a plea agreement, which was never done.

Amended PCRA Petition, 6/6/16, at 7-8 (paragraph numbers omitted).

       In an unusual step, counsel subsequently filed a motion to withdraw,

accompanied by a Turner/Finley letter, notwithstanding the amended

petition.   The letter addressed only the issues that were included in the

amended petition.1

____________________________________________


1
  There is a distinction between a Turner/Finley letter that results from
appointed counsel’s belief that no meritorious issues exist whatsoever versus
the situation in which PCRA counsel files an amended petition raising a
subset of claims included by the petitioner in the original pro se petition plus
any claims that appointed counsel independently raises after reviewing the
record.

Herein, we are presented with a situation wherein appointed counsel
amended the pro se petition, which implicitly represented a determination
that any other issues were not worth pursuing. Counsel then filed a
(Footnote Continued Next Page)


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      The PCRA court issued its notice of intent to dismiss on October 10,

2016, which included a pre-emptive opinion addressing the three issues

posed in the amended petition.            Appellant responded by filing a notice of

appeal, which we consider timely.            Commonwealth v. Swartzfager, 59

A.3d 616, 618, n.3 (notice of appeal filed in response to notice of intent to

                       _______________________
(Footnote Continued)

Turner/Finley letter which addressed only the issues raised in the
amended petition.     In context, it appears that appointed counsel
determined, after further investigation, that the amended issues lacked
arguable merit.

We are cognizant of our Supreme Court’s command that this Court may not
sua sponte review the adequacy of the Turner/Finley letter when the issue
was not raised. See Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009).
Simultaneously, we do not approve of this bifurcated procedure by which
appointed counsel amends a petition—and therefore omits discussion of all
other issues—followed by a no merit letter addressing only the issues raised
in the amended petition. The purpose of the Turner/Finley letter is for
counsel to “detail[ ] the nature and extent of counsel's diligent review of the
case, listing the issues which the petitioner wants to have reviewed,
explaining why and how those issues lack merit, and requesting permission
to withdraw.” Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super.
2007). This letter failed to do so.

Presently, Appellant does not challenge the adequacy of the letter, has not
raised an allegation of PCRA counsel ineffectiveness, and does not
specifically challenge the PCRA court’s order permitting counsel to withdraw
as opposed to simply stating that the PCRA court erroneously failed to grant
relief on his pro se issues. Compare Commonwealth v. Rykard, 55 A.3d
1177 (Pa.Super. 2012) (addressing no merit letter where appellant claimed
counsel did not comply with Turner/Finley and the PCRA court erred in
allowing counsel to withdraw). Thus, while we firmly disapprove of the
procedure employed herein, we are constrained to find that we may review
only the three claims raised on appeal concerning the dismissal of
Appellant’s PCRA petition.




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dismiss petition, not final dismissal, was considered premature); Pa.R.A.P.

905(a)(5) (“A notice      of appeal    filed after   the   announcement of a

determination but before the entry of an appealable order shall be treated as

filed after such entry and on the day thereof.”). The PCRA court issued an

order requiring a Pa.R.A.P. 1925(b) statement within twenty-one days,

warning Appellant “that any issue not properly included in the Statement

timely filed and served pursuant to Rule 1925(b) shall be deemed waived.”

Order, 12/2/16.    The PCRA court filed its opinion, which was delivered by

certified mail, stated that Appellant failed to comply with the order, and

determined that the issues were waived.         Opinion, 1/31/17, at 1.      The

docket confirms that Appellant did not file a Rule 1925(b) concise statement,

and Appellant’s brief does not address that defect in any way.        Appellant

raises the following claims.

      I.     Whether the court erred by denying defend[a]nt’s PCRA
             Petition alleging counsel is ineffective by not raising the
             claim the evidence is legally insufficient to sustain the
             simple assault by physical menace and robbery convictions
             where no serious bodily injury was inflicted beyond a
             reasonable doubt?

      II.    Whether the trial court [erred] or Superior Court erred by
             finding trial counsel’s brief for weight of evidence claim to
             be correct procedurally where no claim was raised at all?

      III.   Is it a violation for the United States Constitution 8th
             Amendment to use any juvenile adjudication for
             sentencing purpose after juvenile’s brains have been found
             to not be fully developed?

Appellant’s brief at unnumbered 7.

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      We must now address the effect of Appellant’s total failure to file a

Pa.R.A.P. 1925(b) statement, as our Supreme Court has set forth a bright-

line rule requiring waiver.

      In [Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998)],
      however, this Court eliminated any aspect of discretion and
      established a bright-line rule for waiver under Rule 1925: “[I]n
      order to preserve their claims for appellate review, [a]ppellants
      must comply whenever the trial court orders them to file a
      Statement of Matters Complained of on Appeal pursuant to Rule
      1925. Any issues not raised in a 1925(b) statement will be
      deemed waived.” Lord, 719 A.2d at 309 (emphasis added).
      Thus, waiver under Rule 1925 is automatic.
      ....

      We reiterate our holding in Lord, and now expressly apply it to
      PCRA appeals. PCRA appellants, in order to preserve their
      claims for appellate review, must comply whenever the PCRA
      court orders them to file a Statement of Matters Complained of
      on Appeal under Rule 1925. Accordingly, any issues not raised in
      a Rule 1925(b) statement are waived. See Lord, 719 A.2d at
      309.

Commonwealth v. Butler, 812 A.2d 631, 633–34 (Pa. 2002) (emphasis

and alterations in original). Our High Court has continued to adhere to this

approach.    See Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011)

(summarizing Rule 1925 jurisprudence).

      However, deeming claims waived for failing to comply with Pa.R.A.P.

1925 presumes that the appellant received an order requiring a concise

statement.    See Commonwealth v. Hess, 810 A.2d 1249 (Pa. 2002)

(failure to file a concise statement did not necessarily require a finding of

waiver, as “it is axiomatic that in order for an appellant to be subject to

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waiver for failing to file a timely 1925(b) statement, the trial court must first

issue a 1925(b) order directing him to do so.”           Id. at 1252 (citation

omitted). The appellant in Hess alleged that the order was never received

and “submitted substantial support for his assertion that he did not receive

the order” in his brief. Id. at 1254.

      In Commonwealth v. Douglas, 835 A.2d 742 (Pa.Super. 2003), we

concluded that Hess did not excuse the failure to file a court-ordered

Pa.R.A.P. 1925(b) statement with the clerk of courts, opining that the

appellant bears some burden to allege that the order was not received.

Similarly, in Commonwealth v. Davis, 867 A.2d 585 (Pa.Super. 2005) (en

banc), we remanded for proper service of a Rule 1925 statement due to

appellate counsel’s representation that he never received an order directing

him to file a statement.       We explicitly noted that the appellate brief

responded to the trial judge’s claim that a Pa.R.A.P. 1925(b) statement was

ordered.

      Michael Wallace, Esquire, an experienced and highly regarded
      trial attorney, stated in his brief that he never received any
      request for a Rule 1925(b) statement. He also added that if he
      did in fact get one and did not respond, that would be
      ineffectiveness.

      Although perhaps it might have been better if Mr. Wallace had
      also filed an affidavit to that effect, we accept the statement in
      the brief, as he is an officer of the court. The brief was his
      first opportunity to respond to the trial judge's statement
      in the 1925(a) opinion that Wallace had failed to file a
      court-ordered Rule 1925(b) statement.



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Id. at 587 (emphasis added). Taken together, then, our cases mandate that

the failure to file a Rule 1925 statement results in waiver unless the

appellant recognizes, if not explains, that failure at the first opportunity.

Herein, even assuming that the order requiring a statement was not

received, Appellant was on notice that the PCRA court deemed all issues

waived in its opinion. In this regard, we note that the opinion was sent to

Appellant via certified mail. Thus, consistent with Lord and its progeny, we

are constrained to find that Appellant has waived all issues.         But see

Commonwealth v. Chester, --- A.3d ---, 2017 WL 2200744 (Pa.Super.

May 19, 2017) (holding that the failure to file a concise statement did not

require a finding of waiver under Lord, without discussing whether the

appellate brief raised the issue, due to the fact that the docket failed to

indicate the date of service of the order requiring the statement).

      Next, we examine whether this matter should be remanded.             In

Commonwealth v. Halley, 870 A.2d 795 (Pa. 2005), a PCRA case, our

Supreme Court held that counsel’s failure to file a Pa.R.A.P. 1925(b)

statement on direct appeal is equivalent to the unjustified failure to file an

appeal at all, and is therefore presumptively prejudicial.    Thus, the PCRA

petitioner was entitled to have his direct appeal rights reinstated due to

direct appeal counsel’s failure to file the required statement. Subsequently,

in Commonwealth v. West, 883 A.2d 654 (Pa.Super. 2005), a claim

arising on direct appeal, we held that Halley logically extended to appellate

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counsel’s failure therein to file a Rule 1925 statement and, as a matter of

judicial economy, we remanded for a proper filing instead of deferring the

claim to the PCRA.   Thus, “Where counsel has failed to file a substantive

Concise Statement, the most effective means of restoring the defendant’s

appellate rights is to remand for counsel to file a Concise Statement.” Id.

Rule 1925 was amended in 2007 to codify the West procedure.

     (c) Remand.

     (1) An appellate court may remand in either a civil or criminal
     case for a determination as to whether a Statement had 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.
     ....

Pa.R.A.P. 1925(c).

     Herein, the Rule 1925(c)(3) procedure clearly does not apply to

Appellant since he represents himself, must follow all rules, and cannot

assert his own ineffectiveness. See Hill, supra at 494 (“[A]ppellants and

their counsel are responsible for complying with the Rule’s requirements.”).

Thus, we cannot remand this matter pursuant to that provision.

     Nor do we find that Rule 1925(c)(1) authorizes a remand under these

circumstances.   The statutory text refers to the concise statement as a

proper noun, which is defined in Pa.R.A.P. 1925(b):


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      (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”).

Pa.R.A.P. 1925(b).     Hence, the reference to Statement in Rule 1925(c)(1)

likewise refers to the concise statement itself, and not the judge’s order to

file said statement.    Accordingly, the (c)(1) remand provision expressly

extends only to a determination “as to whether a Statement had been filed

and/or served or timely filed and/or served.” Pa.R.A.P. 1925(c)(1). Notably

absent is an authorization to remand for a determination as to whether the

order requiring the statement was ordered and/or received.           While we

would not entirely preclude the possibility of a remand to determine that

question, we find that a necessary precondition for a remand is that the

appellant raises the issue at the first opportunity. This holding is consistent

with our precedents. “[I]f Rule 1925 is not clear as to what is required of an

appellant, on-the-record actions taken by the appellant aimed at

compliance may satisfy the Rule[.]”       Hill, supra at 494; Davis, supra

(noting that the failure to file the statement was raised at the first

opportunity); Hess, supra at 1255, n.9 (“We stress that our decision today

in no way suggests that a party's failure to file a Rule 1925(b) statement will

be excused based merely upon bald allegations that the party did not receive

a 1925(b) order.”).     Since a bald allegation is not enough, it necessarily


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follows that the lack of any allegation cannot serve.     Since Appellant has

failed to acknowledge his non-compliance at the first opportunity, we decline

to remand, and we deem all issues waived.

      Finally, we note that Appellant’s claims, even if properly preserved,

would not warrant relief. Our standard of review is well-settled. We review

the order to determine whether the findings of the PCRA court are supported

by the record and free of legal error. Commonwealth v. Treiber, 121 A.3d

435, 444 (Pa. 2015) (citation omitted). The court's credibility findings are to

be accorded great deference and are binding where supported by the record.

Id. (citation omitted). However, we afford no deference to its legal

conclusions, which we review de novo with a plenary scope of review.

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc)

(citing Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.Super. 2012)).

      Appellant’s first issue claims that the evidence was legally insufficient

to sustain the convictions for simple assault by physical menace and robbery

when no serious injury was actually inflicted.    On direct appeal, Appellant

challenged the sufficiency of the evidence, albeit with respect to whether the

Commonwealth established that he threatened or put the victim in fear of

injury.    Appellant did not raise this current claim as one of ineffective

assistance of appellate counsel challenging the adequacy of counsel’s

representation, i.e, counsel should have advanced the alternative argument

instead.    See Commonwealth v. Collins, 888 A.2d 564 (Pa. 2005)

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(ineffective assistance of appellate counsel claim challenges the adequacy of

representation rather than the conviction itself).   In short, it appears that

Appellant is attempting to present the claim as if it were being raised for the

first time on appeal, as opposed to channeling the claim through ineffective

assistance of appellate counsel. Hence, Appellant is not entitled to relief and

the PCRA court correctly denied relief on this ground.

      Next, Appellant avers that the PCRA court erred “by finding trial

counsel’s brief for weight of evidence claim to be correct procedurally where

no claim was raised at all.” Appellant’s brief at unnumbered 7. Appellant

refers to our observation on direct appeal that his weight of the evidence

claim mistakenly failed to concede that sufficient evidence supported the

verdict, and therefore failed to provide a separate argument to support his

weight claim.   Appellant claims, in cursory fashion, that “If counsel had

[properly raised the claim], Appellant’s convictions would have called for a

new trial.” Appellant’s brief at 11. However, Appellant’s argument ignores

that we proceeded to render a decision on the merits. “Upon review of the

record, we conclude that the trial court did not abuse its discretion in

denying Appellant's weight claim.” Burden, supra at *5.         Therefore, we

examined the weight of the evidence claim notwithstanding the defect and

Appellant cannot establish prejudice, since the outcome would clearly not

have changed on direct appeal had the claim been properly presented. See

Commonwealth v. Busanet, 54 A.3d 35, 66 (Pa. 2012) (rejecting

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ineffective assistance of appellate counsel claim “for lack of prejudice as we

conclude that the outcome of [the] direct appeal would not have been

different”).

      Finally, Appellant raises a free-standing claim that using juvenile

adjudications in calculating the prior record score is unconstitutional.       We

will assume for ease of discussion that this claim implicated the legality of

the sentence and was not waived.             In Commonwealth v. Bonner, 135

A.3d 592 (Pa.Super. 2016), we held that it does not violate the

proportionality   principles   of   the    Eighth   Amendment   to   use   juvenile

adjudications. Therefore, this claim would not entitle him to relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/21/2017




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