J-A03045-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES DOUGLAS MORGENSTERN, JR.,
Appellant No. 982 MDA 2013
Appeal from the Judgment of Sentence May 17, 2013
in the Court of Common Pleas of Bradford County
Criminal Division at No.: CP-08-CR-0000570-2012
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J. FILED AUGUST 01, 2014
Appellant, James Douglas Morgenstern, Jr., appeals from the judgment
of sentence imposed following his conviction of one count of persons not to
possess firearms.1 We affirm.
The trial court summarized the factual history of this matter as
follows:
On May 16, 2012, Bradford County Sheriff Deputies, Brian
Wibert and James Hart were traveling to Rome Borough to serve
a bench warrant. They were in a marked vehicle and in full
uniform. At about 3:00 p.m., while traveling through a rural
area, they came upon a black Gran Prix sedan parked in a pull
hour later, upon return, the vehicle was in the same position
including the d
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 6105(a)(1).
J-A03045-14
by, but Deputy Hart suggested they return to determine if
anyone needed help. They pulled in by the vehicle [and] Deputy
Wibert ran the registration number. Deputy Hart saw a female
in the vehicle behind the steering wheel, with the seat reclined
and [her] eyes closed. He thought he recognized her as a
person known to him. He asked her if she was okay and she
opened her eyes. He asked if she was Trisha Bouse, and she
said she was Desiree Bouse, [Appe
Hart recognized the names and [Appellant] was known to him
from his employment as a deputy and while a guard in the
Bradford County Correctional Facility. Deputy Hart asked what
that she was
okay. Bouse explained that they had run out of gas and that
[Appellant] had gone on foot to seek fuel. Deputy Hart noticed
that the backseat of the vehicle was packed with all kinds of
various objects, including a red plastic gas can. Therefore,
Deputy Hart asked Bouse what [Appellant] used to go retrieve
gas, and she responded a gas can. Deputy Hart advised her that
there was a gas can in the back seat. Bouse looked at it and
told him that they had two cans. Deputy Hart then told Deputy
Wibert. Deputy Wibert advised Deputy Hart that the information
on the registration plate did not belong to the black Gran Prix
sedan, but rather a 1995 Jeep Cherokee. [Appellant] then
jogged up the road towards them. He called Deputy Hart by his
first name, and asked what was going on. [Appellant] explained
that the vehicle had run out of gas and that he knew people in
[the] area and tried to find gas. He did not have a gas can.
When asked about there being no gas can, he said he would
borrow a gas can. . . .
Deputy Hart then advised [Appellant] of the registration
not matching the vehicle. [Appellant] began telling the deputy
that the car was legal. Deputy Hart was aware that [Appellant]
had been arrested many times and had issues with [substance
abuse]. Deputy Hart was concerned that [Appellant] was under
the influence of drugs and asked to do a quick pat down for
officer safety, which [Appellant] complied with. Deputy Hart
asked if he had any sharp object[s] on him, to which [Appellant]
replied
Hart was aware that [Appellant] was on probation and asked him
if he was, to which [Appellant] replied yes. Deputy Hart asked if
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there was anything in the car they should know about, or was
there anything illegal in the car. [Appellant] offered that there
was a rifle in the trunk. Deputy Hart asked if they could look in
the trunk and [Appellant] agreed. In the trunk was a rifle and a
machete. Deputy Hart secured the rifle and machete. Deputy
Hart believed that [Appellant] had a felony conviction and asked
him if he did, to which [Appellant] replied yes. [Appellant] was
not arrested at the time because Deputy Hart did not believe
that he was a flight risk. Therefore, a summons was issued at a
later date. . . .
(Trial Court Opinion, 8/09/13, at 1-3).
On May 18, 2012, Deputy Hart filed a criminal complaint against
Appellant, alleging that he had committed the offense of persons not to
possess firearms. On September 5, 2012, Appellant filed an omnibus
pretrial motion to suppress the evidence, which the trial court denied on
February 8, 2013. Appellant filed a motion to reconsider the motion to
suppress, which the trial court denied on March 5, 2013. The case
proceeded to a bench trial on March 22, 2013, and the court found Appellant
guilty of the above-mentioned offense. On May 17, 2013, following
preparation of a presentence investigation report (PSI), the trial court
sentenced Appellant to a term of not less than twenty-four nor more than
forty- appeal
on May 29, 2013.
On May 31, 2013, in accordance with Pennsylvania Rule of Appellate
Procedure Rule 1925(b), the trial court entered an order requiring Appellant
to file a concise statement of errors within twenty-one days. See Pa.R.A.P.
1925(b). The order provided, in bold, capital- SAID
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STATEMENT SHALL BE SPECIFIC AS TO WHAT CLAIMS WERE RAISED
THE CLAIMS WERE ERROR
directive may result in waiver. (Concise Statement Order, 5/31/13, at 1)
(emphasis in original). On June 14, 2013, Appellant timely filed a nine-
page, forty-three-paragraph-long Rule 1925(b) statement. (See Rule
1925(b) Statement, 6/14/13, at 1-9). The trial court filed a Rule 1925(a)
opinion on August 9, 2013.
review:
I. Did the trial court err in finding the investigation and search
jurisdiction?
A. Are sheriffs and their deputies vested with the
authority to enforce and/or investigate violations of
the [Vehicle Code] that do not rise to the level of
breaches of the peace?
B. Did the trial court err in finding the warrantless
search of [Appellant] and his vehicle constitutional?
II. Did the trial court err in finding [the] sheriff deputies did not
exceed their authority by prosecuting [Appellant] under 18 Pa.
C.S. § 6105 of the Crimes Code?
-10).
Prior to analyzing t
whether he properly preserved those claims for our review, as required by
Rule 1925(b). Rule 1925(b)(4) provides, in relevant part:
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(ii) The Statement shall concisely identify each ruling or
error that the appellant intends to challenge with sufficient detail
to identify all pertinent issues for the judge. The judge shall not
require the citation to authorities; however, appellant may
choose to include pertinent authorities in 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.
(v) Each error identified in the Statement will be deemed
to include every subsidiary issue contained therein which was
raised in the trial court; this provision does not in any way limit
the obligation of a criminal appellant to delineate clearly the
scope of claimed constitutional errors on appeal.
* * *
(vii) Issues not included in the Statement and/or not
raised in accordance with the provisions of this paragraph (b)(4)
are waived.
Pa.R.A.P. 1925(b)(4)(ii), (iv), (v), (vii).
It has been held that when the trial court directs an
appellant to file a concise statement of matters complained of on
appeal, any issues that are not raised in such a statement will be
waived for appellate review. Similarly, when issues are too
vague for the trial court to identify and address, that is the
functional equivalent of no concise statement at all. Rule 1925
is intended to aid trial judges in identifying and focusing upon
those issues which the parties plan to raise on appeal. Thus,
Rule 1925 is a crucial component of the appellate process.
When the trial court has to guess what issues an appellant is
appealing, that is not enough for meaningful review.
Commonwealth v. Smith, 955 A.2d 391, 393 (Pa. Super. 2008) (en banc)
(case citations and quotation marks omitted). I
concise statement is too vague, this Court may find waiver. See
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Commonwealth v. Hansley, 24 A.3d 410, 415-16 (Pa. Super. 2011),
appeal denied, 32 A.3d 1275 (Pa. 2011) (
on appeal waived where he failed to specify claims in his Rule 1925(b)
statement); see also Commonwealth v. Castillo, 888 A.2d 775, 776, 780
(Pa. 2005) (reaffirming bright-line waiver rule for Rule 1925 established in
Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998), and stating that any
issues not raised in Rule 1925(b) statement are waived.). An en banc panel
of this Court recently stated:
Our Supreme Court intended the holding in Lord to
operate as a bright-
the minimal requirements of Pa.R.A.P. 1925(b) will result in
automatic waiver Commonwealth v.
Schofield, 888 A.2d 771, 774 (Pa. 2005) (emphasis added);
see also [Commonwealth v.] Castillo, 888 A.2d at 780.
Given the automatic nature of this type of waiver, we are
required to address the issue once it comes to our attention.
Indeed, our Supreme Court does not countenance anything less
than stringent application of waiver pursuant to Rule 1925(b):
-line rule eliminates the potential for inconsistent
results that existed prior to Lord, when . . . appellate courts had
discretion to address or to waive issues raised in non-compliant
Id. Succinctly put, it is no
al
deficiencies of Rule 1925(b) statements.
Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 2014 WL
930822 at *2 (Pa. Super. filed March 11, 2014) (en banc) (emphasis
original); see id. at *5 (holding that this Court cannot address merits of
directing it to file concise statement of errors).
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Here, Appellant filed a nine-page Rule 1925(b) statement of errors
that is vague and far from concise. (See Rule 1925(b) Statement, 6/14/13,
at 1-9). It consists of forty-three numbered paragraphs, divided into three
-
(See id.). It does not precisely identify
a Rule 1925(b) statement. (See id.). In fact, portions of the document
etrial motion to
suppress. (See id.; see also Omnibus Pretrial Motion to Suppress Evidence
and to Dismiss, 9/05/12, at unnumbered pages 1-3). Further, the
to the specific issues and sub-issues raised in his brief. (See Rule 1925(b)
Statement, 6/14/13, at 1-9; see also -10).
discern them, its Rule 1925(a) opinion simply restated its reasons for
(See Trial Ct. Op., at 3-6). The court could not directly address each of the
issues and sub-issues Appellant raised in his brief because Appellant failed to
concisely identify them for the court in his Rule 1925(b) statement, despite
BE SPECIFIC AS TO WHAT CLAIMS WERE
RULINGS ON THE CLAIMS WERE ERROR
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5/31/13, at 1) (emphasis in original); see also
(noting that trial court did not directly address sub-issue I.A.)).
Based on this record, we conclude that Appellant failed to comply with
the minimal requirements of Rule 1925(b), and that, consequently, he has
waived all of his issues on appeal. See Pa.R.A.P. 1925(b)(4)(vii); see also
Greater Erie Indus. Dev. Corp., supra at *2 (citing Schofield, supra at
774). Accordingly, we may not address the merits of those issues. See
Greater Erie Indus. Dev. Corp., supra at *2, 5.2
____________________________________________
2
We recognize that our Rules of Appellate Procedure provide for limited
instances in which appellate courts may remand criminal cases to trial courts
in order to cure defects in Rule 1925 statements. In relevant part, Pa.R.A.P.
1925(c) permits appellate courts in criminal cases to remand in the following
three circumstances related to the filing of Rule 1925(b) statements:
(1) An appellate court may remand [in a criminal case] for
a determination as to whether a Statement has been filed and/or
served or timely filed and/or served.
* * *
(3) If an appellant in a criminal case was ordered to file a
Statement and failed to do so, such that the appellate court is
convinced that counsel has been per se ineffective, the appellate
court shall remand for the filing of a Statement nunc pro tunc
and for the preparation and filing of an opinion by the judge.
(4) In a criminal case . . . [where counsel filed an
Anders/McClendon brief] in lieu of filing a Statement [and]
upon review of the Anders/McClendon brief, the appellate
court believes that there are arguably meritorious issues for
review[.] . . .
(Footnote Continued Next Page)
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Judgment of sentence affirmed.
Olson, J., files a Concurring Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/1/2014
_______________________
(Footnote Continued)
Pa.R.A.P. 1925(c)(1), (3)-(4). None of these circumstances is applicable in
the present case. With respect to Pa.R.A.P. 1925(c)(1), the record reflects
Pa.R.A.P. 1925(c)(3), the official note to the rule makes clear that remand is
order to file a Statement. . . . [W]hen waiver occurs due to the improper
filing of a Statement . . . relief may occur only through the post-conviction
Statement. Finally, with respect to Pa.R.A.P. 1925(c)(4), counsel has not
filed an Anders/McClendon brief. Therefore, remand is not available in the
instant case.
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