                                  [J-61-2019]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                               EASTERN DISTRICT

   SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


 COMMONWEALTH OF PENNSYLVANIA,                 :   No. 733 CAP
                                               :
                      Appellee                 :   Appeal from the Order dated July 14,
                                               :   2016 in the Court of Common Pleas,
                                               :   Monroe County, Criminal Division at
               v.                              :   No. CP-45-CR-0001137-2009.
                                               :
                                               :   SUBMITTED: June 19, 2019
 MICHAEL JOHN PARRISH,                         :
                                               :
                      Appellant                :


                                         OPINION

JUSTICE TODD                                            DECIDED: January 22, 2020
       In this capital case, Appellant Michael John Parrish appeals the order of the

Monroe County Court of Common Pleas denying his petition for relief pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541 et seq. Following our request for

supplemental briefing, and after careful review, we hold that Appellant’s Statement of

Matters Complained of on Appeal filed pursuant to Pa.R.A.P. 1925(b) (“Rule 1925(b)

statement”) is so vague as to render all of his claims waived for purposes of this appeal.

Additionally, we hold that appellate counsel’s filing of a woefully deficient statement, one

which precludes merits review of all appellate issues, constitutes ineffective assistance

of counsel per se, warranting reinstatement of Appellant’s right to file a Rule 1925(b)

statement nunc pro tunc.      Accordingly, we remand to the PCRA court for further

proceedings consistent with this opinion.
                                 I. Factual Background.

       This appeal arises from the July 6, 2009 double murder of Appellant’s girlfriend,

Victoria Adams, and their 19-month-old son, Sidney Parrish.1 Appellant, Victoria, and

Sidney lived in a Monroe County apartment, and, on the day of the murders, Appellant

remained at the apartment with Sidney while Victoria spent the day with family and

friends. As the day proceeded into evening, Appellant became worried that Victoria would

not return home in time to give Sidney certain medications he required,2 a task Appellant

did not know how to perform. Appellant was additionally concerned that Victoria might

be pursuing a romantic relationship with someone else. That night, Appellant made a

series of increasingly frequent and agitated calls to Victoria’s mobile phone, which she

initially answered, but later ignored. Later in the evening, Victoria and her companions

went to a bar, where Victoria disclosed to them that Appellant was abusive and that she

wished to end their relationship. Victoria asked three of her companions — her brother,

Keith Adams, her cousin, James Ahern, and a friend, Christopher Ramos — to

accompany her to the apartment, so that she could retrieve Sidney and her personal

belongings, and end the relationship.

       The three men agreed, and the group drove to the apartment. Victoria went inside

while her brother Keith, Ahern, and Ramos waited in the car. Initially, Appellant emerged

from the apartment brandishing a handgun and threatening Ahern with it, but, after Ahern

lied that he, too, was armed, Appellant retreated inside. Shortly thereafter, gun flashes

and gunshots emanated from the apartment. The three men attempted to enter the

apartment to assist Victoria, but, as they approached the apartment, Appellant retrieved


1 The factual history of this case was set forth in greater detail in our prior opinion issued
in Appellant’s direct appeal. See Commonwealth v. Parrish, 77 A.3d 557 (Pa. 2013).
2 Sidney had recently undergone a heart transplant, and he required anti-rejection

medications, which Victoria administered to him at approximately 8 p.m. each night.


                                       [J-61-2019] - 2
a shotgun and began firing at them, prompting them to flee and contact emergency

services. Ultimately, Appellant vacated the apartment, and, approximately 30 to 40

minutes later, the men returned to the apartment, performed a cursory search, and found

nothing amiss.

         Nearly an hour later, Pennsylvania State Police arrived and entered the apartment,

and, during a search of the premises, discovered Victoria’s and Sidney’s bodies in a back

bedroom. Each had been shot multiple times. Appellant became the object of a multi-

state manhunt, and he left Pennsylvania. He was later arrested in New Hampshire, where

he was subjected to a search that yielded a .357 Glock semi-automatic handgun, which

forensic tests revealed to have been consistent with the firearm that fired the 13 spent

cartridge casings recovered from the crime scene. While being questioned by police,

Appellant waived his Miranda3 rights and confessed to killing Victoria and Sidney,

indicating that the events of the evening provoked him into such a rage that he fired a

warning shot at the ceiling to get Victoria’s attention. However, he recalled that he was

so angry that he then “lost it” and shot Victoria while she was holding Sidney, inadvertently

striking him, which caused Appellant to become even more furious such that he began to

“spray” bullets at Victoria and Sidney, firing alternating series of shots at both until he ran

out of ammunition. Parrish, 77 A.3d at 560.

         Appellant was charged with two counts of first-degree murder,4 and, initially, was

represented by two attorneys with the Monroe County Public Defender’s Office (“PDO”)

– William Sayer, Esq., and James Gregor, Esq. On August 18, 2009, the Commonwealth

filed notice of its intent to seek the death penalty, alleging, with respect to each count of

first-degree murder, the aggravating circumstances that (1) Appellant committed another


3   Miranda v. Arizona, 384 U.S. 436 (1966).
4   18 Pa.C.S. § 2502(a).



                                       [J-61-2019] - 3
offense subject to the death penalty or life imprisonment, and (2) Appellant committed

another murder.5    On April 21, 2010, Appellant, via Attorneys Sayer and Gregor,

attempted to tender a guilty plea to both counts, but, at an ensuing colloquy, Attorney

Sayer elicited Appellant’s statement that he blacked out during the shooting, which the

trial court viewed as undermining the notion that Appellant could have formed the

requisite intent to commit first-degree murder, and so the trial court rejected the guilty

plea. Two days later, Attorney Sayer withdrew his appearance and was replaced by

another attorney — the chief public defender of that office, Wieslaw Niemoczynski, Esq.

On July 19, 2010, Appellant tendered a guilty plea to both counts, which the trial court

accepted, but, on September 26, 2011, Appellant asserted his innocence, and, on that

basis, was permitted to withdraw his guilty pleas.

      On March 19, 2012, Appellant proceeded to jury selection, and, on March 26,

2012, the guilt phase of his trial began, at which the Commonwealth elicited evidence of

the foregoing sequence of events culminating in the murders. Appellant, for his part, did

not dispute he committed the killings, but presented a defense based on the theory that

his anxiety over Sidney’s need for his medication, Victoria’s possible infidelity, and a

violent provocation by Victoria’s companions caused him to become so upset and

enraged that he could not form the requisite intent to commit first-degree murder.

Appellant was convicted of both counts of first-degree murder.




5See 42 Pa.C.S. § 9711(d)(10), (d)(11). In this regard, the murder of Victoria served as
an aggravating factor for the murder of Sidney, and vice-versa. The Commonwealth also
alleged, with respect to Appellant’s murder of Sidney, the aggravating circumstance that
Appellant had killed a victim less than 12 years of age. See id. § 9711(d)(16). However,
as explained in the context of Appellant’s direct appeal, the record reflects that the jury
did not find this aggravator, possibly due to a clerical error. See Parrish, 77 A.3d at 560
n.3. Thus, it is not relevant herein.



                                     [J-61-2019] - 4
         On April 2, 2012, the penalty phase of Appellant’s trial began. With respect to both

counts of first-degree murder, the jury found: (1) both of the aforementioned aggravating

circumstances; and (2) the mitigating circumstances that Appellant had no significant

history of prior convictions; that Appellant committed the murders under the influence of

extreme emotional disturbance and distress; and the “catchall” mitigator with respect to

Appellant’s character and the circumstances of his offense.6 The jury further found, again

with respect to both counts of first-degree murder, that the aggravating circumstances

outweighed the mitigating circumstances, and it recommended imposition of the death

penalty. On May 15, 2012, Appellant proceeded to a sentencing hearing, at which the

trial court imposed a sentence of death. Afterwards, Appellant was imprisoned in the

State Correctional Institution in Greene County (“SCI-Greene”), where he remains.

         Appellant did not file a notice of appeal, but the Clerk of Courts of Monroe County

notified this Court of his sentence of death due to our independent, automatic review of

cases involving the imposition of such sentences.7 The trial court, ostensibly of the view

that such notice required Appellant to actually litigate an appeal to obtain such review,

directed him to file a Rule 1925(b) statement. Appellant did so, through trial counsel,

raising claims asserting improper prosecutorial comment and ineffective assistance of

counsel. Appellant then filed a brief with this Court presenting these claims.

         On September 25, 2013, in a unanimous opinion, we found Appellant’s failure to

file a notice of appeal waived any claims unassociated with our automatic capital review

of the sufficiency of the evidence supporting the verdict and the sentence of death. See

Parrish, 77 A.3d at 560-61. After conducting that mandatory review, we found that

Appellant’s convictions were supported by sufficient evidence, and that the sentences of

death were supported by sufficient evidence proving at least one aggravating factor. We

6   See 42 Pa.C.S. § 9711(e)(1), (2), & (8).
7   See Pa.R.A.P. 1941.

                                       [J-61-2019] - 5
also concluded that the death sentences were not the product of passion, prejudice, or

any other arbitrary factor, and, accordingly, we affirmed them.      See id. at 561-62.

Appellant petitioned for a writ of certiorari from the United States Supreme Court, which

was denied on May 19, 2014. See Parrish v. Pennsylvania, 572 U.S. 1123 (2014) (order).

      On August 29, 2014, Appellant filed a pro se petition seeking relief under the

PCRA. President Judge Margherita Patti-Worthington (“PCRA court”) appointed Attorney

Brian Ganglione to represent Appellant to assist him in the preparation of an amended

PCRA petition; however, Attorney Ganglione was granted leave to withdraw shortly

thereafter because of a conflict due to his representation of James Ahern, one of the

aforementioned witnesses to the murder. Consequently, the PCRA court appointed

Attorney Robert Saurman to represent Appellant, and it directed Attorney Saurman to file

an amended PCRA petition on or before January 12, 2015.

      Subsequently, Attorney Saurman requested a continuance to prepare the petition.

He also requested the allocation of funds from the PCRA court for the appointment of a

mental health expert to evaluate the defendant and for a mitigation expert to review the

performance of the mitigation expert used by trial counsel, Dr. Deborah Belknap, as well

as additional funds for him to travel to SCI-Greene and meet with Appellant. The PCRA

court denied the request for funds for the mental health expert, and travel expenses, but

allocated $750.00 for the services of a mitigation expert, which Attorney Saurman used

to retain Dr. Juliet Yackel. The PCRA court did indicate, however, that Attorney Saurman

could again seek leave of court to obtain additional funding for the retention of experts

once he had prepared an amended petition identifying the issues to be considered, and

after he created a schedule of when the experts would be needed during subsequent

proceedings.




                                     [J-61-2019] - 6
        Attorney Saurman filed a five-page amended PCRA petition on February 15, 2015,

raising a number of claims that Appellant’s trial counsel was ineffective for: failing to file

pretrial motions to “test the legality of the evidence to be introduced against him at trial,”

and to obtain all available discoverable material; failing to file a motion in limine to exclude

allegedly inflammatory autopsy photos; failing to properly qualify jurors for the penalty

phase of the trial; and failing to retain a mental health expert to diagnose Appellant’s

mental health and alleged disabilities and determine how they may have contributed to

his behavior and reactions on the night of the homicide. Amended PCRA Petition,

2/17/15, at 2-3. Additionally, Attorney Saurman also asserted that trial counsel was

ineffective for failing to prepare his mitigation expert, Dr. Belknap, for trial, and to have

her question jurors about the death penalty and their fitness to serve during the selection

process. Id. at 3. These claims were presented in the petition as general allegations

without citation to caselaw, constitutional provisions, or other legal authority, and were

devoid of supporting factual development. Further, Attorney Saurman made no request

for additional funding for the retention of experts, nor did he file the required schedule

with the PCRA court indicating if and when expert testimony would be necessary. The

PCRA court scheduled an evidentiary hearing on the amended PCRA petition for July 27,

2015.

        Before that hearing, on April 20, 2015, Appellant filed a counseled, 358-page

petition for a writ of habeas corpus with the Federal District Court for the Middle District

of Pennsylvania, which remained pending on the date set for the PCRA evidentiary

hearing.8 On that date, Attorney Saurman filed a motion for a continuance, averring that

he had been unable to meet with Appellant because the PCRA court failed to provide him


8In this proceeding, Appellant was represented by the Assistant Federal Public Defender,
Kelly D. Miller, and private counsel, Jennifer Merrigan, Esquire.


                                        [J-61-2019] - 7
with funding to travel to SCI-Greene for that purpose. For his part, Appellant related to

the PCRA court that he was dissatisfied with Attorney Saurman’s representation for the

reason that they had been unable to communicate because Attorney Saurman did not

visit him in prison as he had promised, nor did Attorney Saurman respond to Appellant’s

letters to him regarding the case. N.T. PCRA Hearing, 7/27/15, at 7-8.

       Along with the motion to continue, Attorney Saurman simultaneously filed another

amended PCRA petition, which, like the first, was five pages long. It raised an additional

claim that trial counsel had a conflict of interest and should not have represented

Appellant because he was a member of the same public defender’s office, which was

also representing two witnesses to the crime — James Ahern and Christopher Ramos.

Attorney Saurman did not, however, present any developed legal argument as to how this

fact, if true, entitled him to relief under the PCRA. In this second amended PCRA petition,

Attorney Saurman also attempted to incorporate, by reference, Appellant’s habeas corpus

petition that he had attached in toto to the petition. The PCRA court denied the motion

for a continuance, and also dismissed, in open court, the portion of the second amended

PCRA petition which attempted to incorporate the attached habeas corpus petition by

reference. The court ruled that such attempted incorporation was not appropriate. Id. at

177-78.

       The PCRA court proceeded to a hearing at which Appellant’s trial counsel,

Attorneys Niemoczynski and Gregor, testified, as did Appellant’s trial mitigation specialist

Dr. Belknap. The hearing was continued until November 3, 2015, so that Dr. Yackel could

testify as to her evaluation of Dr. Belknap’s performance.

       Thereafter, Attorney Saurman filed a third amended PCRA petition on September

21, 2015 in which he presented additional issues raised in Appellant’s habeas corpus




                                      [J-61-2019] - 8
petition attacking the effectiveness of trial counsel’s representation.9          Specifically,

Attorney Saurman alleged that trial counsel was ineffective for, inter alia: failing to present

evidence that Victoria, her brother Keith, Ahern, and Ramos were allegedly intoxicated

and high on methamphetamines on the night of the murders and that Ramos had a

criminal history of committing offenses which showed a propensity for violence, thereby

supporting Appellant’s defense theory that they were the instigators of the fatal

confrontation; failing to introduce mental health treatment records of Ahern in which he

purportedly blamed himself for causing the fatal shooting; failing to obtain, and introduce,

for impeachment purposes, the fact that Commonwealth witness Ramos had an open

case with the Monroe County District Attorney’s Office at the time he testified, and had

an expectation of leniency in that case for his cooperation; failing to introduce testimony

from a mental health expert that Appellant suffered from obsessive compulsive disorder

and general neuropsychological impairment to a degree that he would have suffered

extreme anxiety over the events of the evening prior to Victoria’s shooting, such that he

would not have been able to form the specific intent to kill; failing to introduce forensic

evidence which would have demonstrated that multiple weapons other than the one

possessed by Appellant were fired in the house at the time of the killings, as well as other

medical evidence showing that Victoria died from the first shot and would not have

experienced the suffering the Commonwealth claimed that she did by being shot 7

additional times; failing to object to jury instructions which allegedly relieved the

Commonwealth of proving the specific intent to kill by allowing a finding of such intent to


9 Although he did not, as he did previously, attach the habeas petition and attempt to
incorporate it wholesale by reference, it appears that Attorney Saurman lifted the text
nearly verbatim from the habeas petition filed in federal court, which was authored by
Appellant’s counsel in that proceeding, and put it into the body of the third amended
petition; however, there was no additional factual development of these claims, either in
the petition or through supporting affidavits or exhibits.


                                       [J-61-2019] - 9
be presumed; failing to file a motion in limine to exclude evidence of: a prior incident of

domestic violence against the victim perpetrated by Appellant, Appellant’s adherence to

the tenets of Nazism, his interest in Nordic religions, his ownership of firearms and

ammunition not used in the murders, and his flight to New Hampshire; failing to file a

pretrial motion for a change of venue based on extensive pretrial publicity which tainted

the jury pool; failing to object to the Commonwealth’s introduction of victim impact

testimony at the guilt-phase portion of Appellant’s trial; and failing to file a direct appeal

on Appellant’s behalf.

       At the November 3, 2015 evidentiary hearing, Dr. Yackel testified as to her

evaluation of Dr. Belknap’s performance, which she considered to have been deficient;

however, she indicated that she could not opine as to whether those deficiencies were

prejudicial to Appellant, inasmuch as she had not conducted any independent

investigation of her own into any other potential mitigating circumstances, or any other

aspect of the case. N.T. PCRA Hearing, 11/03/15, at 57. It appears Attorney Saurman

never requested Dr. Yackel perform such an investigation, never requested additional

funds from the PCRA court to do so, and never hired other experts or investigators after

he made his initial application.

       Attorney Saurman also called as a witness Frederick Cutaio, an attorney in the

Monroe County PDO who was representing Ahern at the time of Appellant’s trial. Cutaio

testified that he was aware of the dual representation by the PDO, and, also, that he

possessed relevant information about Ahern which could have been used in the

preparation of Appellant’s defense, namely, that, at the time of Appellant’s trial, Ahern

had been convicted of simple assault, reckless endangerment, criminal mischief, and

harassment and was awaiting sentencing. Id. at 120-27. Nevertheless, according to

Cutaio, he continued with the dual representation after discussing it with the chief public




                                      [J-61-2019] - 10
defender Niemoczynski, and they had reached the conclusion that no conflict existed

because Appellant was not involved with Ahern’s case, and Cutaio was concerned only

about his case. Id. at 127. Attorney Saurman presented no other witnesses at this

hearing.10

       After the Commonwealth filed its answer to Appellant’s amended PCRA petitions,

and both parties filed briefs, the PCRA court issued a 45-page opinion and order on July

14, 2016 denying Appellant relief on all claims. On August 5, 2016, Appellant, through

Attorney Saurman, appealed to this Court,11 and the PCRA court directed him to file a

Rule 1925(b) statement. Attorney Saurman responded by filing a statement which, in its

entirety, consisted of the following three claims of error:

              1. The [PCRA] court erred and abused its discretion by not
              finding that trial counsel [were] ineffective in their
              representation of the Appellant to the extent that he is legally
              entitled to a new trial.

              2. The [PCRA] court erred and abused its discretion by not
              finding that the case for mitigation of the Appellant was
              compiled and presented in a legally ineffective manner,
              entirely outside of the standards of the profession, such that
              [Appellant] is entitled to a new penalty-phase [of his] trial.


10 Attorney Saurman filed a fourth and final amended PCRA Petition on April 5, 2016 in
which he noted pending actions in the Court of Judicial Discipline against former Justices
Eakin and McCaffrey and averred that, “[w]ere such jurists biased in their Hearing of
[Appellant’s] appeal, [Appellant] suffered violations of his constitutional rights to due
process effective assistance of direct appeal counsel and meaningful appellate review.”
Amended PCRA Petition, 4/5/16, at ¶ 4. Attorney Saurman conceded there was not, as
of that time, any evidence of bias on the part of either jurist with respect to the handling
of Appellant’s direct appeal, and he did not subsequently provide any such evidence to
the PCRA court.
11 Appellant, through Attorney Saurman, erroneously appealed to the Superior Court,

which later entered a per curiam order transferring the appeal to this Court. See 42
Pa.C.S. § 9546(d) (providing that a final order in a PCRA proceeding in a capital case
where the death penalty has been imposed “shall be directly appealable only to the
Supreme Court.”).



                                      [J-61-2019] - 11
              3. The [PCRA] court erred and abused its discretion by not
              finding that the failure of trial counsel to effectively represent
              Appellant and represent his interests resulted in complete and
              total breakdown of his ability to receive meaningful [a]ppellate
              review of his conviction, trial, and the underlying proceedings
              of the same.
Concise Statement of Matters Complained of on Appeal, 8/30/16, unpaginated, at 1-2. In

response, the PCRA court, seemingly unable to discern which of its rulings on Appellant’s

myriad ineffectiveness claims raised in his amended petitions he was challenging on

appeal, issued a statement pursuant to Rule 1925(a), which incorporated its prior

opinion.12

       In his brief filed with our Court, Attorney Saurman raised the following two issues:
              A. Was trial counsel ineffective in their representation of
              [Appellant] to the extent that he is legally entitled to a new
              trial?

              B. Was the case for mitigation of [Appellant] compiled and
              presented in a legally ineffective manner such that [Appellant]
              is entitled to a new penalty phase [of his] trial?
Appellant’s Brief at 5.13

       Determining that the claims presented in Appellant’s Rule 1925(b) statement were

vague and insufficiently developed for appellate review, we remanded for the appointment

of new counsel, and directed supplemental briefing to address the following issues:



12   Although the PCRA court’s opinion was expansive, it did not address all of the
ineffective assistance of counsel claims raised in Appellant’s four petitions. For example,
the court did not address the allegation of trial counsel’s ineffectiveness for failure to
object to alleged victim impact testimony introduced by the Commonwealth in the guilt
phase of Appellant’s trial, for failure to impeach Commonwealth witness Ramos for
potential bias over the open criminal case on which he was purportedly due to be
sentenced at the time of his trial testimony, and for failure to introduce forensic evidence
establishing that more than one gun was fired in the house on the night of the murders.
13 Given our ultimate disposition, we do not attempt in this appeal to parse out all of the

various specific legal issues which could conceivably be embedded in these all-
encompassing claims of trial counsel’s ineffectiveness, and, accordingly, we do not opine
to the merits of any claim relating to trial counsel’s alleged ineffectiveness.


                                      [J-61-2019] - 12
              (1) Does an appellant’s filing of a vague Rule 1925(b)
              statement that fails to specify any particular claim waive all his
              claims for purposes of appeal, even if the trial court issues an
              opinion addressing some of his claims and a Rule 1925(a)
              opinion incorporating its prior opinion? The parties are
              directed to address the appropriate scope of Commonwealth
              v. Castillo, 888 A.2d 775 (Pa. 2005).

              (2) If so, does appellate counsel’s filing of such a statement
              constitute ineffective assistance of counsel per se?

              (3) If so, is an appellant, whose appellate counsel has filed
              such a statement in the context of an appeal from the denial
              of PCRA relief, entitled to reinstatement of his Pennsylvania
              constitutional right to appeal the denial of PCRA relief nunc
              pro tunc? The parties are directed to address the appropriate
              scope of Commonwealth v. Hill, 16 A.3d 484 (Pa. 2011),
              particularly in light of Commonwealth v. Peterson, [192 A.3d
              1123 (Pa. 2018)]?
Commonwealth v. Parrish, 733 CAP (order filed Oct. 17, 2018). We retained jurisdiction.

       On remand, the PCRA court appointed Attorney Brandon Reish to represent

Appellant, and the parties have now filed the requested supplemental briefs.

                                  II. Legal Background

       Pa.R.A.P. 1925 was first adopted by our Court in 1975, and it has undergone

multiple revisions since then, with the most recent version taking effect on June 24, 2019.

The current version provides, in relevant part:

              (a) Opinion in support of order.

                 (1) General rule. Except as otherwise prescribed by this
                 rule, upon receipt of the notice of appeal, the judge who
                 entered the order giving rise to the notice of appeal, if the
                 reasons for the order do not already appear of record, shall
                 within the period set forth in Pa.R.A.P. 1931(a)(1) file of
                 record at least a brief opinion of the reasons for the order,
                 or for the rulings or other errors complained of, or shall
                 specify in writing the place in the record where such
                 reasons may be found.

                                            * * *



                                      [J-61-2019] - 13
(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”).
                               * * *
    (4) Requirements; waiver.

       (i) The Statement shall set forth only those errors that
       the appellant intends to assert.

       (ii) The Statement shall concisely identify each error
       that the appellant intends to assert with sufficient detail
       to identify the issue to be raised for the judge. The
       judge shall not require the citation to authorities or the
       record; however, appellant may choose to include
       pertinent authorities and record citations in the
       Statement.

       (iii) The judge shall not require any party to file a brief,
       memorandum of law, or response as part of or in
       conjunction with the Statement.

       (iv) The Statement should not be redundant or provide
       lengthy explanations as to any error. Where non-
       redundant, non-frivolous issues are set forth in an
       appropriately concise manner, the number of errors
       raised will not alone be grounds for finding waiver.

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

(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.

   (2) Upon application of the appellant and for good cause
   shown, an appellate court may remand in a civil case for



                        [J-61-2019] - 14
                  the filing nunc pro tunc of a Statement or for amendment
                  or supplementation of a timely filed and served Statement
                  and for a concurrent supplemental opinion. If an appellant
                  has a statutory or rule-based right to counsel, good cause
                  shown includes a failure by counsel to file a Statement
                  timely or at all.

                  (3) If an appellant represented by counsel in a criminal
                  case was ordered to file a Statement and failed to do so or
                  filed an untimely Statement, such that the appellate court
                  is convinced that counsel has been per se ineffective, and
                  the trial court did not file an opinion, the appellate court
                  may remand for appointment of new counsel, the filing of
                  a Statement nunc pro tunc, and the preparation and filing
                  of an opinion by the judge.

Pa.R.A.P. 1925(a)-(c).
       As described by our Court, “[t]he . . . purpose of Pa.R.A.P. 1925(a) is to facilitate

appellate review of a particular trial court order. Additionally . . . the rule fulfills an

important policy consideration by providing to disputing parties, as well as to the public at

large, the legal basis for a judicial decision.” Commonwealth v. DeJesus, 868 A.2d 379,

382 (Pa. 2005).

       Rule 1925(b) permits a judge whose order is being appealed from to request that

the appellant provide a “statement of errors” complained of on appeal if the trial judge

desires the appellant to provide “clarification of the errors complained of on appeal.”

Pa.R.A.P. 1925(b). Our Court’s Appellate Rules Committee has further elaborated that

this subsection of the rule is intended to be of the broadest scope, and requires all errors

which an appellant claims the trial court made in entering the appealed-from order be

included in a Rule 1925(b) statement:

              The term “errors” is meant to encourage appellants to use the
              Statement as an opportunity to winnow the issues,
              recognizing that they will ultimately need to be refined to a
              statement that will comply with the requirements of Pa.R.A.P.
              2116. Nonetheless, the term “errors” is intended in this context
              to be expansive, and it encompasses all of the reasons the
              trial court should not have reached its decision or judgment,


                                      [J-61-2019] - 15
              including, for example, those that may not have been
              decisions of the judge, such as challenges to jurisdiction.
Pa.R.A.P. 1925(b), comment. The provisions of Rule 1925(b)(4) establish the basic

requirements which all statements of errors must meet, and further state that issues not

raised in accordance with those requirements “are waived.” Pa.R.A.P. 1925(b)(4)(vii).

       Rule 1925(c) provides appellate courts with various remedies when faced with

counsel’s perceived failure to comply with the requirements of Rule 1925(b). In a civil or

criminal case, if there is a material dispute of fact as to whether a Rule 1925(b) statement

was filed and served in a timely fashion, the appellate court may remand for a factual

determination on these questions.        Pa.R.A.P. 1925(c)(1).     In a civil case, “[u]pon

application of the appellant and for good cause shown, an appellate court may remand .

. . for the filing nunc pro tunc of a Statement or for amendment or supplementation of a

timely filed and served Statement and for a concurrent supplemental opinion. If an

appellant has a statutory or rule-based right to counsel, good cause shown includes a

failure by counsel to file a Statement timely or at all.” Pa.R.A.P. 1925(c)(2). In a criminal

case, “[i]f an appellant represented by counsel in a criminal case was ordered to file a

Statement and failed to do so or filed an untimely Statement, such that the appellate court

is convinced that counsel has been per se ineffective, and the trial court did not file an

opinion, the appellate court may remand for appointment of new counsel, the filing of a

Statement nunc pro tunc, and the preparation and filing of an opinion by the judge.”

Pa.R.A.P. 1925(c)(3).

       In Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998), involving a direct appeal from

a criminal conviction, our Court held that all appellants must file a Rule 1925(b) statement,

if ordered to do so by the trial court, enumerating all issues they wish to have the appellate

court consider, or those issues will be deemed waived for appellate review. Our Court

emphasized that Rule 1925 was “a crucial component of the appellate process,” and,



                                      [J-61-2019] - 16
thus, requiring mandatory compliance with this rule under penalty of waiver was essential

to further its primary purpose which is “to aid trial judges in identifying and focusing upon

those issues which the parties plan to raise on appeal.” Id. at 308.

       Subsequently, in Commonwealth v. Butler, 812 A.2d 631 (Pa. 2002), our Court

ruled that the Lord decision also applies to proceedings under the PCRA. Therein, we

held that “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.” Id. at 633-34. Consequently, we ruled that, because the attorney

for the PCRA petitioner therein, who was appealing the PCRA court’s denial of his PCRA

petition, failed to file a Rule 1925(b) statement after being ordered to do so by the PCRA

court, he waived his client’s right to appellate review of any claim related to that denial.14

       Although Lord and Butler involved waiver of appellate issues due to counsel’s

complete failure to file a Rule 1925 (b) statement, in Commonwealth v. Castillo, 888 A.2d

775 (Pa. 2005), our Court determined that counsel’s untimely filing of such a statement

also completely waives such claims for purposes of appellate review, even though the

trial court authored an opinion addressing the issues presented in the untimely filed

statement. We concluded this was necessary in such situations



14  Then-Justice, now-Chief Justice, Saylor filed a concurring opinion in which he noted
that “post-conviction petitioners have a rule-based interest in effective post-conviction
counsel analogous to the Sixth Amendment right prevailing at trial and on direct appeal,”
and that, in situations where PCRA counsel’s performance was so deficient it denied the
petitioner his right of appeal secured by Article V, § 9 of the Pennsylvania Constitution,
remand for the appointment of new counsel is “the accepted remedy.” Butler, 812 A.2d
637-38 (Saylor, J. concurring). However, because of the paucity of the appellant’s
argument in his brief and his failure to request, or even discuss, such relief, Justice Saylor
did not consider it appropriate to fashion such an equitable remedy under those
circumstances.



                                      [J-61-2019] - 17
              to insure judges in each appealed case [have] the opportunity
              to opine upon the issues which the appellant intends to raise,
              and thus provide appellate courts with records amenable to
              meaningful appellate review. This firm rule avoids the
              situation that existed prior to Lord where trial courts were
              forced to anticipate which issues the appellant might raise and
              appellate courts had to determine whether they could conduct
              a meaningful review despite an appellant’s failure to file a
              Pa.R.A.P. 1925(b) statement or to include certain issues
              within a filed statement.
Id. at 779 (citations and quotation marks omitted).15

       Thereafter, in Commonwealth v. Hill, 16 A.3d 484 (Pa. 2011) – a capital case – our

Court again held that the Lord/Butler waiver rule applied in an appeal from the PCRA

court’s denial of a PCRA petition. Because PCRA counsel in that case failed to file a Rule

1925(b) statement as ordered by the PCRA court, all appellate issues were waived, and

we did not consider those that were presented in the appellant’s brief to our Court.16 We

rejected the Commonwealth’s suggested alternative disposition — removal of the

appellant’s current counsel and remand to the PCRA court for the filing of a new Rule

1925(b) statement.17 We opined that such a remedy could not be granted under our prior

jurisprudence in this area — citing Butler, Castillo, Commonwealth v. Schofield, 888 A.2d


15   Then-Justice Saylor dissented, expressing his preference for adoption of a form of
discretionary review which would permit a degree of flexibility for trial and appellate courts
to consider issues whenever there has been imperfect procedural or substantive
compliance with Rule 1925 by appellants, if the issues are purely legal in nature, or they
have been presented to the trial court in some fashion previously, such as through post-
trial or post-sentence motions, and the lower court has ruled on them. Justice Saylor also
noted that some defects also could be cured through remand to the trial court for further
proceedings. He viewed either alternative as preferable to a finding of complete waiver
under the Lord/Butler rule.
16 The appellant’s counsel claimed that he had made the PCRA court aware of the

appellate issues he wished to pursue via a series of off-the-record ex parte contacts with
its chambers and submission of various other documents to that court, which were not
made part of the certified record. We rejected the appellant’s argument that these actions
constituted sufficient compliance with the requirements of Rule 1925(b).
17    The Commonwealth’s disposition was endorsed by the appellant who did not
independently offer her own suggested remedy to cure the waiver caused by her
counsel’s failure to file the Rule 1925(b) statement.

                                      [J-61-2019] - 18
771 (Pa. 2005) (failure to demonstrate that Rule 1925(b) statement was provided to the

trial judge within the 14-day time period permitted by the rule resulted in waiver of all

issues for purposes of appeal despite trial court opinion addressing those issues), and

Commonwealth v. Wholaver, 903 A.2d 1178 (Pa. 2006) (applying Lord/Butler waiver rule

in a direct capital appeal to find all appellate issues waived other than the statutorily-

mandated sufficiency-of-the-evidence review because counsel failed to timely file a Rule

1925(b) statement). See Hill, 16 A.3d at 494. Our Court additionally noted that, in

Wholaver, we rejected a “similar request . . . to overlook a Rule 1925(b) failure.” Id.

       We further observed that the Commonwealth’s suggested disposition was based

on the version of Pa.R.A.P. 1925 which went into effect in 2007 (and remains in effect

today), which added this type of remand procedure in subsection (c)(3); however, this

amended version of the rule was not in effect at the time the appellant’s appeal was filed;

thus, we deemed it to be inapplicable. Id. We also declined in Hill to consider whether

remand for the filing of a new Rule 1925(b) statement, and appointment of new counsel,

would have been required had Rule 1925(c)(3) been in effect, but we noted that, in prior

cases, our Court had characterized the PCRA as being technically civil in nature, that

Rule 1925(c)(3) was a codification of prior caselaw arising out of direct criminal appeals

in which counsel failed to file a Rule 1925(b) statement, and that it merely streamlined the

procedure for restoration of appellate rights in those circumstances. Id. at 495 n.14.18




18   Then-Justice Saylor penned a dissent, joined by this author, in which he favored
returning the matter to the PCRA court to factually determine if there had been substantial
compliance with its order to file a Rule 1925(b) statement. Justice Saylor observed that,
since our decision in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), our Court now
strongly discourages the presentation of claims of ineffective assistance of counsel during
direct appeal; thus, he reasoned that the sole round of post-conviction review of such
claims available under the PCRA “should not be impaired by rules of literal compliance.”
Hill, 16 A.3d at 498 (Saylor, J., dissenting).

                                     [J-61-2019] - 19
       Finally, our decision in Commonwealth v. Peterson, 192 A.3d 1123 (Pa. 2018),

while not involving the Lord/Butler waiver rule, nevertheless has relevance to the current

matter since it concerns the fundamental question at the heart of this appeal — whether

the actions of PCRA counsel can amount to ineffectiveness per se, depriving the PCRA

petitioner of the right to appellate review of the merits of his collateral claims, such that

judicial restoration of that right is required. In that case, the appellant’s first PCRA counsel

filed the PCRA petition a day late, and, although the PCRA court addressed the claims

therein and denied relief, the Superior Court sua sponte dismissed petitioner’s appeal

because the PCRA petition was untimely.19

       The appellant, through new counsel, then filed a second PCRA petition seeking to

restore, nunc pro tunc, his right to appeal the PCRA court’s denial of his petition. The

PCRA court determined that the appellant did not know that his first counsel had missed

the filing deadline, and could not have determined that fact through the exercise of due

diligence; thus, it regarded the second petition as timely filed under Section 9545(b)(1)(ii)

of the PCRA. See 42 Pa.C.S. § 9545(b)(1)(ii) (allowing filing of a PCRA petition beyond

the one-year deadline if “the facts upon which the claim is predicated were unknown . . .

and could not have been ascertained by the exercise of due diligence”). This was in

accord with our decision in Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007) (holding

that PCRA counsel’s failure to file an appellate brief which resulted in the dismissal of

petitioner’s appeal constituted abandonment for purposes of that appeal, an act which

was per se prejudicial, and because appellant was unaware of such abandonment, nor

could he have learned of that fact through the exercise of due diligence, a second PCRA

petition seeking to restore his appellate rights was timely under Section 9545(b)(1)(ii)).


19 Until that dismissal, neither the parties nor the PCRA court were apparently aware of
the petition’s untimeliness.


                                       [J-61-2019] - 20
       After the PCRA court again denied relief to the appellant on the merits of his PCRA

claims, he appealed to the Superior Court. That tribunal once more determined that the

petition was untimely, reasoning that, because PCRA counsel had actually filed a petition

on the appellant’s behalf, counsel did not abandon him as in Bennett. Our Court granted

allowance of appeal and reversed.

       We observed that, while complete abandonment of a client during the appellate

process, as occurred in Bennett, is ineffectiveness per se on the part of appellate counsel,

see Peterson, 192 A.3d at 1131 (quoting Commonwealth v. Rosado, 150 A.3d 425, 427

(Pa. 2016) (in turn citing Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999) (failing to

perfect a direct appeal resulting in its dismissal); Commonwealth v. Liebel, 825 A.2d 630

(Pa. 2003) (failing to file a petition for allowance of appeal requested by defendant causing

loss of the right to seek discretionary review with our Court); and Commonwealth v.

Halley, 870 A.2d 795 (Pa. 2005) (failing to file a Rule 1925(b) statement in a direct appeal

causing its dismissal))), complete inaction is not the only circumstance under which

appellate counsel can be found to be ineffective per se. We highlighted the import of our

decision in Rosado, wherein we found counsel to be ineffective per se for filing an

appellate brief which raised only issues that had been waived; we deemed this as the

functional equivalent of filing no brief at all because it resulted in the forfeiture of merits

review for all claims. Thus, applying the collective principles articulated in these cases,

we held in Peterson that the appellant’s first PCRA counsel was ineffective per se for filing

the PCRA petition a day late, “as it completely foreclosed [him] from obtaining review of

the collateral claims set forth in his first PCRA petition,” Peterson, 192 A.3d at 1132, and

we ordered the case remanded to the Superior Court so that it could conduct appellate

review of those claims.
                              III. Arguments of the Parties




                                      [J-61-2019] - 21
       We turn now to the arguments of the parties with respect to the issues presented

in the case at bar. Appellant argues that the core purpose of Rule 1925(b), as repeatedly

emphasized by our Court in this area, is the identification of issues for appellate review

so that courts do not have to speculate as to the issues being raised. Appellant proffers

that, when counsel fails to file such a statement, files the statement late, or files a

fundamentally defective statement, this “cuts to the heart of counsel’s effectiveness in

litigating the appeal,” as it is an abdication of his or her responsibility to identify the issues

raised on appeal, thereby forcing the court to assume counsel’s role in this regard.

Appellant’s Supplemental Brief at 28. Appellant reasons that, for purposes of applying

the Lord/Butler rule, there is no analytical distinction between the failure to file a Rule

1925(b) statement, the filing of an untimely statement, or the filing of a vague statement.

In each situation, the pivotal inquiry is whether the statement sufficiently identified for the

lower court the issues for appeal; if it did not, and the lower court was forced to speculate,

then the Lord/Butler rule requires a finding of waiver.

       Appellant avers that PCRA counsel’s Rule 1925(b) statement was so vague that it

failed to identify any discernible issues for appeal. Appellant points out that, while

counsel’s PCRA petitions raised a multiplicity of ineffectiveness claims, and the trial court

held hearings on some of them, the Rule 1925(b) statement does not identify which of

those claims would be raised on appeal, or what factual and legal errors the PCRA court

allegedly made. Appellant describes the statement as “little more than a mélange of

formless and indistinct ideas, complaining simply that the lower court erred in some

undefined way,” resulting in the PCRA court being forced to speculate about what errors

or rulings counsel was challenging on appeal. Appellant’s Supplemental Brief at 29-30.

Thus, in Appellant’s view, under the Lord/Butler rule, as reaffirmed in Castillo, this

requires a finding of waiver of all of his appellate issues.




                                        [J-61-2019] - 22
       Appellant continues that, because PCRA counsel’s act of filing this vague Rule

1925(b) statement waived all of his appellate issues, it constituted ineffective assistance

of counsel per se, just as our Court in Halley determined that counsel’s act of failing to

file any Rule 1925(b) statement in a direct appeal, which resulted in forfeiture of all of his

client’s issues for purposes of appellate review, was ineffectiveness per se. Appellant

characterizes the filing of this vague statement to be “the functional equivalent” of filing

no statement at all, because, as in Halley, appellate counsel’s actions waived all appellate

issues. Appellant’s Supplemental Brief at 31.

       Addressing the question of what the appropriate remedy should be if our Court

agrees he has waived all of his appellate claims, Appellant suggests two possible courses

of action set forth in Rule 1925(c): First, he offers that we could treat this case as a

criminal matter and remand it pursuant to Rule 1925(c)(3) for the filing of a new Rule

1925(b) statement. Alternatively, Appellant proposes that we could treat this as a civil

matter, citing our Court’s statement in Hill characterizing a PCRA proceeding to be civil

in nature, see Hill, 16 A.3d at 495 n.14, and view his supplemental brief as an application

for remand and reinstatement of his appellate rights under Rule 1925(c)(2), which allows

remand in a civil matter upon application, and for good cause shown, as discussed above.

       As a second potential remedy, Appellant submits that we allow him to file another

PCRA petition for the purposes of restoring his appellate rights. Appellant argues that in

Peterson we seemingly approved of this approach, given that we allowed the restoration

of petitioner’s appellate rights in that case via the filing of a second PCRA petition.

       Appellant also emphasizes that, because trial counsel failed to file a direct appeal,

he has not had appellate review of his conviction and death sentence beyond the limited

automatic review performed by this Court. Further, citing the paucity of factual and legal

development in his PCRA petitions discussed above, Appellant avers that this present




                                      [J-61-2019] - 23
appeal from the denial of his PCRA petitions is the first and only opportunity to adequately

develop and present claims of ineffective assistance of trial counsel. He adds that a

remand would be appropriate because this Court has directed such relief where the

record concerning capital PCRA counsel’s ineffectiveness is not sufficiently developed.

See Commonwealth v. Pursell, 724 A.2d 293, 303 (Pa. 1999).

       Amicus the Defender Association of Philadelphia has filed a brief taking the

position that Pa.R.A.P. 1925(b) should be interpreted in accordance with its plain text,

and that nothing in the language of this rule permits an appellate court to find automatic

waiver of an appellate issue if it is not raised with sufficient specificity in a statement of

matters complained of on appeal. Amicus argues that the purpose of the rule, as reflected

in its text, is to identify for the trial judge who has requested the statement the issues

which will be pursued on appeal.        See Pa.R.A.P. 1925(b)(ii) (“The Statement shall

concisely identify each error that the appellant intends to assert with sufficient detail to

identify the issue to be raised for the judge.”). Thus, in situations such as the present

case where the trial court which requested the statement files an opinion addressing

certain issues, it can be presumed that the issue has been adequately presented to the

trial court so that it understands the issue well enough to opine on it, and an appellate

court finding of waiver is inappropriate.

       Amicus further suggests that it is only in the limited instance where there is a

divergence between the issues as framed in the appellate brief and the trial court opinion

– i.e., the brief raises issues not addressed by the trial court opinion – that the appellate

court should examine the statement to see if the issues were presented in accordance

with Rule 1925(b)(4)(i)-(vi). According to amicus, only if the appellate court determines

that those requirements have not been met can it find the issue waived. In the view of

amicus, this allows appellate counsel sufficient latitude to raise issues in a manner




                                      [J-61-2019] - 24
adequate for the trial court to understand them, yet also allows for later refinement of his

or her advocacy in the appellate brief by developing in greater depth the issue, or

subsidiary issues which the rule presumes are subsumed within the issues presented to

the trial court.

       Amicus, the Pennsylvania Association of Criminal Defense Lawyers (“PACDL”),

also filed an amicus brief in which it argues that our Court’s holdings in Lord, Butler,

Schofield, and Castillo are factually distinguishable and, thus, do not directly control the

outcome of this case. PACDL concedes that a finding that the Rule 1925(b) statement is

vague “dooms the appeal” as, under the provisions of Rule 1925(b)(4), failure to comport

with that subsection’s requirements results in waiver. PACDL Brief at 7. Hence, it views

our Court’s “portrayal” of the Rule 1925(b) statement as “vague” and “fail[ing] to identify

any particular issue on appeal” as resulting in Appellant’s waiver of all appellate issues.20

Id. PACDL regards appellate counsel’s waiver of all issues for purposes of appeal to be

ineffective assistance of counsel per se, and argues that the proper remedy in such

situations is to remand for the reinstatement of all appellate rights nunc pro tunc.

       As a broader remedy, PACDL additionally proposes that we suspend the

application of Rule 1925(b) in criminal appeals, and that we refer the matter to the

Appellate Rules Committee for amendment. PACDL criticizes the way in which the rule

operates as a practical matter, in that it forces appellate counsel to prematurely identify

all possible appellate issues before he or she has had the chance to carefully review the

record and evaluate the legal and factual soundness of various arguments which could

be raised on appeal.      Moreover, according to PACDL, the rule does not promote

consistency in the appellate process, but, rather, operates in a manner which places


20This “portrayal” was from our statement of the questions on which we ordered
supplemental briefing. See Parrish, 733 CAP (order filed Oct. 17, 2018).


                                      [J-61-2019] - 25
appellate criminal litigants in unequal positions. Those litigants not required to file such

a statement have greater time and latitude to identify and fully develop appellate issues

in the preparation of their brief, as opposed to those litigants ordered to file such a

statement, who must then, early in the appellate process, determine, with specificity,

issues they are going to pursue under penalty of waiver for failure to do so.

       Moreover, PACDL notes that the requirements of the rule are themselves

confusing and often leave advocates and courts at odds about whether issues in a Rule

1925(b) statement have been stated with sufficient specificity to be preserved therein. In

PACDL’s view, this uncertainty makes compliance an exercise in conjecture and raises

significant due process concerns.

       The Pennsylvania Bar Association (“PBA”) also filed an amicus brief which argues

that the underlying purpose of Rule 1925, as recognized in Lord — to aid trial judges in

identifying and focusing upon those issues which the parties plan to raise on appeal so

that they can prepare an opinion describing their reasoning — is not implicated in this

situation because the trial court authored an opinion addressing the issues to be raised

on appeal. PBA acknowledges our Court’s holding in Castillo, but suggests that it be

modified so that automatic waiver is not required in situations such as the present case

where the trial court authored an opinion addressing each issue the appellant raises on

appeal. Thus, because there is an opinion available for the appellate court’s review, in

these situations, appellate review is not hindered. To insist upon applying Castillo’s bright

line rule in these types of cases would, in PBA’s view, require consistency merely for

consistency’s sake. PBA contends that, while Rule 1925 is helpful in facilitating appellate

review, it is not the sine qua non of that review, and the constitutional right to appellate

review afforded by Article V, Section 9 should not be impaired by a requirement of rigid




                                      [J-61-2019] - 26
compliance in circumstances such as these, given that appellate review is possible. PBA

Brief at 8.

         In its response, the Commonwealth also argues that a finding of waiver is not

necessary under these circumstances, given that this case differs from Castillo in that,

here, it is not the timeliness of the statement’s filing which is at issue; rather, it is the form

of the statement. Consequently, from the Commonwealth’s perspective, while the bright

line rule of Castillo ensures consistency because it is straightforward in its application –

i.e., appellate issues are waived if a statement is untimely, a determination which can be

made by a simple temporal calculation – by contrast, a determination of whether a

statement is so vague as to require a finding of waiver is not subject to such easy

resolution because it involves an exercise of trial court discretion. As a result, consistency

in finding waiver in these situations is not assured. While the Commonwealth concedes

that, here, the parties have assumed that the statement is vague, it cautions that in other

cases such a determination may not be quite so clear.

         The Commonwealth endorses modifying the scope of our Castillo decision in

accordance with the manner suggested by PBA – namely, allowing consideration of

issues raised in an appellate brief if the trial court has addressed the issues in a written

opinion, or even orally on the record. The Commonwealth suggests that such a rule

would more readily assure consistency, given that it would require a lesser exercise of

discretion, as an appellate court could simply compare an appellant’s brief with the trial

court opinion and determine if the issues raised therein had been addressed by the trial

court.

         In the case at bar, the Commonwealth acknowledges that the Rule 1925(b)

statement was “entirely vague;” however, it points out that the PCRA judge ordered the

parties to file briefs prior to rendering her initial opinion denying the PCRA claims, and




                                        [J-61-2019] - 27
Appellant’s counsel filed a brief with her in which he raised issues he now presents on

appeal. Commonwealth Supplemental Brief at 7. The PCRA judge in her initial opinion

provided an explanation of her rulings on those issues, and, in the Commonwealth’s view,

this enabled effective appellate review of those issues.

       The Commonwealth agrees that, if the filing of a vague Rule 1925(b) statement

waives all of Appellant’s issues on direct appeal, then, consistent with our decision in

Halley, this constitutes ineffective assistance of counsel per se. The Commonwealth also

interprets our Court’s Peterson decision, and our Court’s earlier decision in Rosado relied

upon by Peterson, as a definitive recognition that such ineffective assistance of counsel

which completely forecloses appellate review is a constructive denial of counsel. Thus,

a conclusion that Appellant’s issues were waived would entitle him to a remand to file a

new Rule 1925(b) statement and for the PCRA court to write a new opinion addressing

any issues raised therein.

                                       IV. Analysis

       The issues involved in this appeal present pure questions of law; hence, our review

is plenary. Commonwealth v. Hess, 810 A.2d 1249, 1252 (Pa. 2002). We begin by

addressing the threshold question of whether the Rule 1925(b) statement filed by PCRA

counsel was so vague that appellate review of any issues related to the PCRA court’s

dismissal of Appellant’s amended petitions was waived. Notably, the parties do not

dispute this question, as even the Commonwealth has conceded that the Rule 1925(b)

statement was “entirely vague.” Commonwealth Supplemental Brief at 7.

       Our own independent review of the vacuous statement filed by PCRA counsel

leads us to conclude that it is so wholly lacking in comportment with Rule 1925(b)’s basic

requirements that a finding of waiver is clearly warranted. As discussed above, under

Lord and Butler, a litigant appealing from the denial of PCRA relief is required to strictly




                                     [J-61-2019] - 28
comply with the provisions of Rule 1925(b), or his or her appellate issues are deemed to

be waived. Rule 1925(b)(4)(ii) directs that “[t]he Statement shall concisely identify each

error that the appellant intends to assert with sufficient detail to identify the issue to be

raised for the judge.” Pa.R.A.P. 1925(b)(4)(ii) (emphasis added). As the comment to

Rule 1925(b) further elaborates:

              The more carefully the appellant frames the Statement, the
              more likely it will be that the judge will be able to articulate the
              rationale underlying the decision and provide a basis for
              counsel to determine the advisability of raising that issue on
              appeal. Thus, counsel should begin the winnowing process
              when preparing the Statement and should articulate specific
              errors with which the appellant takes issue and why.
Pa.R.A.P. 1925(b), comment (emphasis added).

       The statement filed by PCRA counsel, quoted supra, did not identify any specific

legal error committed by the PCRA court in its rulings on the multifarious claims of trial

counsel ineffectiveness presented in the amended PCRA petitions, nor did it even identify

which of those rulings were being challenged on appeal. Rather, it generically and

capaciously encompassed every conceivable claim of ineffective assistance of trial

counsel contained in the amended PCRA petitions. As such, it forced the PCRA court to

guess which of its rulings were being challenged. Accordingly, waiver of all appellate

issues is mandated by Pa.R.A.P. 1925(b)(4)(vii), which provides that “[i]ssues . . . not

raised in accordance with the provisions of this paragraph (b)(4) are waived.” Pa.R.A.P.

1925(b)(4)(vii).

       This conclusion is not altered by the fact that the PCRA court authored an opinion

addressing a large number of the ineffectiveness claims raised in Appellant’s four

amended PCRA petitions. As we held in Castillo, the mere fact that a court has authored

an opinion addressing potential appellate issues does not excuse an appellant from

complying with Pa.R.A.P. 1925(b). As Appellant has cogently argued, the burden is on



                                       [J-61-2019] - 29
appellate counsel to comply with Rule 1925(b), and it is not the trial court’s responsibility

to assume that burden and identify potential appellate issues and frame them for a litigant

in an opinion without receiving any guidance from appellate counsel.              Pa.R.A.P.

1925(b)(4)(ii) establishes the minimum guidance appellate counsel must provide to the

trial court about the specific issues he or she will be pursuing on appeal, and,

consequently, plays a vital role in facilitating the appellate process.

       In this regard, as noted previously, see supra note 12, in the face of Appellant’s

vague Rule 1925(b) statement, the PCRA court did not write a new opinion, but, rather,

merely incorporated the prior opinion which it authored in support of its order denying

PCRA relief. As we observed, this opinion did not address all of the claims raised in

Appellant’s amended petitions, but merely a subset. We express no view on whether the

ineffectiveness claims omitted from the PCRA court’s discussion have potential merit;

however, we highlight these omissions as an additional reason for considering a trial

court’s Rule 1925(a) opinion to be an inadequate substitute for appellate counsel’s filing

of a compliant Rule 1925(b) statement. In preparing a Rule 1925(b) statement, appellate

counsel has the responsibility to exercise professional judgment to identify and frame all

potentially meritorious issues for appellate review on behalf of his client. The trial court,

in preparing its Rule 1925(a) opinion, has no such duty, and is obligated only to address

the issues raised by counsel for an appellant.

       Moreover, as our Court also recognized in Castillo, strict compliance with Rule

1925(b) promotes uniformity in the appellate review process, and ensures that each

litigant ordered to file such a statement receives the same opportunity for appellate

review. In our view, it is untenable, and, indeed, potentially offensive to equal protection

principles, for the breadth of appellate review to be based on a trial court’s discretionary

decision to speculatively determine which appellate issues are raised in a vague Rule




                                      [J-61-2019] - 30
1925(b) statement. Such an approach would result in a situation where some litigants

obtain appellate review if, as here, the trial court elects to address certain appellate

issues, whereas other litigants would be denied that opportunity if the trial court declines

to do so. Accordingly, to avoid such unpredictable and inequitable outcomes, where, as

here, appellate counsel has wholly failed in a Rule 1925(b) statement to identify with

sufficient detail the issues to be raised on appeal, consistent with our prior decisions in

Lord, Butler, and Castillo, those issues are waived.

       We turn now to the question of whether PCRA counsel’s filing of this type of

deficient Rule 1925(b) statement constitutes ineffective assistance of counsel per se. As

our Court has recognized, while there is no right under the Sixth Amendment to the

effective assistance of counsel in a PCRA proceeding, because a PCRA petitioner has

the right to counsel under our rules of criminal procedure, there exists “an enforceable

right to effective post-conviction counsel.” Commonwealth v. Albrecht, 720 A.2d 693, 700

(Pa. 1998) (quoting Commonwealth v. Albert, 561 A.2d 736, 738 (Pa. 1989)); see also

Peterson, 192 A.3d at 1130 n.3. This right includes the right to the effective assistance

of post-conviction counsel in pursuing an appeal of the denial of post-conviction relief.

Albert, 561 A.2d at 738.

       As our Court observed in Rosado, in the direct appeal context, “[t]here is no

meaningful difference between an attorney who fails to file a notice of appeal, Rule

1925(b) statement, brief, or petition for allowance of appeal — thereby forfeiting his

client's right to appeal — and one who makes all necessary filings, but does so relative

solely to claims he has not preserved for appeal, producing the same end. In both

situations, counsel has forfeited all meaningful appellate review”; in both situations,

counsel is therefore ineffective per se. Rosado, 150 A.3d at 434. Moreover, in Peterson,

we held that these principles are equally applicable in PCRA proceedings, and thus we




                                     [J-61-2019] - 31
found counsel in that matter to be ineffective per se for depriving a PCRA petitioner of his

right to collateral review by filing an untimely PCRA petition. Rosado and Peterson

therefore stand for the proposition that, whenever PCRA counsel takes any action that

wholly deprives his or her client of the right to appellate review of collateral claims, counsel

will be deemed to be ineffective per se. Consequently, in the present case, PCRA

counsel’s filing of a vague Rule 1925(b) statement, which has completely forfeited

Appellant’s right to appellate review of all of his collateral claims, constitutes ineffective

assistance of counsel per se.

       Necessarily, then, we must determine the appropriate remedy in this situation. Our

Court has indicated that, whenever post-conviction counsel’s performance is so deficient

that it has entirely denied the post-conviction petitioner the right to appeal, remand to the

lower court is the appropriate remedial action so that new counsel can take the necessary

steps to restore that right. Albrecht, 720 A.2d at 700-01; see also Albert, supra (because

appellate brief filed in appeal from the denial of PCRA relief was so deficient as to render

meaningful appellate review impossible, remand for the appointment of new appellate

counsel to prepare a new appeal was required in order to effectuate petitioner’s post-

conviction right to appellate review secured by Article V, Section 9).

       Here, Appellant has already received the appointment of new counsel;

accordingly, all that remains is to remand this matter for the preparation of a new Rule

1925(b) statement nunc pro tunc. Thereafter, the PCRA court must then file a new Rule

1925(a) opinion in response.21


21   Although we acknowledge, and appreciate, the well-considered and compelling
advocacy of amici regarding modification of our Castillo decision, and, alternatively, their
suggestions for restructuring the provisions of Rule 1925 itself, we decline, under the facts
of this case, to make wholesale changes to the rule, or disturb our extant caselaw
interpreting it, given that neither the Rule nor our caselaw precludes the remedy we have
afforded Appellant.


                                       [J-61-2019] - 32
       This matter is hereby remanded to the PCRA court so that Appellant may file a

new Rule 1925(b) statement nunc pro tunc. Jurisdiction is relinquished.

       Chief Justice Saylor and Justices Baer, Donohue, Dougherty, Wecht and Mundy

join the opinion.




                                   [J-61-2019] - 33
