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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ORVAL WALTER WATSON, JR.,
Appellee No. 507 WDA 2014
Appeal from the Order Dated March 11, 2014
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0001074-2013
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
DISSENTING MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 06, 2014
dissent. I believe we are compelled to conclude that the Commonwealth has
waived its issue for our review and affirm on that basis.
On April 7, 2014, the trial court issued its amended Rule 1925(b) order
directing the Commonwealth to file a concise statement within 21 days. The
timely filed and served pursuant to subdivision (b), shall be deemed
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*
Retired Senior Judge assigned to the Superior Court.
J-S58036-14
this order was served
April 8, 2014. Thirty-five days later, the Commonwealth filed its concise
, the Commonwealth
an unintentional clerical error, the undersigned did not receive either order
and was unaware of [the] request [for a Rule 1925(b) statement] by this
Honorable
timely filed.
In a footnote, the Majority states that it is overlooking the
because the trial
address the merits of a criminal appeal where the appellant failed to file a
timely Rule 1925(b) statement if the trial court had adequate opportunity
and chose to prepare an opinion addressing the issues being raised on
Commonwealth v. Burton, 973
A.2d 428 (Pa. Super. 2008) (en banc) (addressing post-amendment Rule
1925 and ramifications regarding untimely Rule 1925(b) statement)).
en banc decision in Greater Erie
Indus. Development Corp. v. Presque Isle Downs, 88 A.3d 222 (Pa.
Super. 2014), we expressly rejected application of this precise exception to
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Rule 1925(b) waiver, citing precedent of our Supreme Court. Id. at 224
(citing Commonwealth v. Castillo, 888 A.2d 775, 779-780 (Pa. 2005)).
We declared:
to review the merits of an untimely Rule 1925(b) statement
those untimely raised issues. Under current precedent, even if a
trial court ignores the untimeliness of a Rule 1925(b) statement
and addresses the merits, those claims still must be considered
concise statement of [errors] complained of on appeal pursuant
to Rule 1925(b), the appellant must
Hess v. Fox Rothschild, LLP, 925 A.2d 798, 803 (Pa. Super.
2007) (citing Castillo, 888 A.2d at 780) (emphasis in original);
see Feingold v. Hendrzak, 15 A.3d 937, 940 (Pa. Super.
2011).
Id. at 225 (emphasis added).1
In light of Greater Erie, I believe we are bound to deem the
t to accept its Rule 1925(b) statement as timely
Majority Decision at 4 n.2; see Commonwealth v. Taylor, 671 A.2d 235,
ation of Rule
1925(b) is expressly reserved to the appellate courts, and not to the trial
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1
We did recognize in Greater Erie that waiver could be excused if the trial
rule. Here, as stated supra er fully complied with the
mandates of Rule 1925(b).
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Commonwealth v. Donahue, 630 A.2d 1238, 1242-
issue waived and affirm the tri
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