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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
OSCAR BROWN,
Appellant No. 319 WDA 2013
Appeal from the PCRA Order January 22, 2013
in the Court of Common Pleas of Allegheny County
Criminal Division at Nos.: CP-02-CR-0002628-2005;
CP-02-CR-0004588-2005
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 6, 2014
Appellant, Oscar Brown, appeals from the order denying his second
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
The relevant factual and procedural history of this case is as follows.
On March 27, 2006, following a three-day trial, a jury found Appellant guilty
of criminal homicide, criminal attempt, aggravated assault, carrying a
firearm without a license, burglary, recklessly endangering another person,
criminal conspiracy, and two counts of possession of a controlled substance.1
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2501(a), 901, 2702, 6106, 3502, 2705, 903, and 35 P.S. §
780-113(a)(16), respectively.
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The conviction stems from a January 12, 2005, confrontation during which
Appellant and his co-defendant shot Christopher Martine and Joshua Woy,
killing Mr. Martine and seriously injuring Mr. Woy. On June 26, 2006, the
trial court imposed an aggregate sentence of life imprisonment. Appellant
filed a direct appeal and this Court affirmed the judgment of sentence on
December 27, 2007. (See Commonwealth v. Brown, 945 A.2d 757 (Pa.
Super. 2007) (unpublished memorandum)). Appellant did not file a petition
for allowance of appeal in our Supreme Court.
On November 6, 2008, Appellant filed a first counseled PCRA petition.
The PCRA court held a hearing on June 30, 2009, and issued an order
denying the petition on July 29, 2009. Appellant appealed from the order to
this Court, but subsequently withdrew the appeal.
On March 22, 2010, Appellant filed the underlying second counseled
PCRA petition. The PCRA court held a hearing on the petition on June 21,
2012. On January 22, 2013, the court issued its order denying Appellant’s
petition. On February 15, 2013, Appellant filed a timely notice of appeal.
On March 9, 2013, in accordance with Pennsylvania Rule of Appellate
Procedure 1925(b), the PCRA court entered an order requiring Appellant to
file a concise statement of errors no later than May 7, 2013. See Pa.R.A.P.
1925(b). The order stated: “[A]ppellant is notified that . . . any issue not
properly included in the Statement timely filed and served pursuant to
Pa.R.[A.]P. 1925(b) shall be deemed waived[.]” (Concise Statement Order,
3/09/13, at 1). On March 26, 2013, Appellant’s former counsel, Thomas J.
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Farrell, Esq., filed a petition for leave to withdraw because Appellant had
retained current counsel, Ralph D. Karsh, Esq. On April 2, 2013, this Court
issued a per curiam order noting Mr. Karch’s entry of appearance in this case
and excusing Mr. Farrell from representation. On May 7, 2013, Appellant,
through counsel, filed a motion requesting a one-week extension of time to
file the Rule 1925(b) statement. On that same date, the PCRA court entered
an order granting Appellant’s motion, and directed him to file the statement
“no later than May 31, 2013.” (Order, 5/07/13, at 1). On June 7, 2013,
Appellant, through counsel, filed an untimely Rule 1925(b) statement.2 The
trial court filed a Rule 1925(a) opinion on December 4, 2013, addressing the
issues raised in Appellant’s untimely concise statement. See Pa.R.A.P.
1925(a).
Appellant raises the following issues for our review:
I. Did the [trial] [c]ourt err in denying the claim that newly
discovered evidence disclosed a Brady [v. Maryland, 373 U.S.
83 (1963)] violation by the Commonwealth which denied
Appellant his [r]ights to [d]ue [p]rocess and [c]onfrontation?
II. Did the [trial] [c]ourt err in denying the claims that prior
P.C.R.A. counsel was ineffective for withdrawing Appellant’s first
P.C.R.A. [a]ppeal when there was no reasonable legal strategy
to do so?
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2
We note that Appellant states that he filed the Rule 1925(b) statement on
June 1, 2013. (See Appellant’s Brief, at 6). However, the docket entry,
time stamp, and certificate of service reflect that Appellant filed the
statement on June 7, 2013. (See Criminal Docket, at 13; Rule 1925(b)
Statement, 6/07/13; see also Commonwealth’s Brief, at 8).
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III. Did the [trial] [c]ourt err in denying the claims that prior
P.C.R.A. counsel was ineffective for failing to adequately
examine jail-house informant witness Bagley, who twice
attempted to invoke his Fifth Amendment [r]ights to avoid
perjuring himself at the [e]videntiary [h]earing?
IV. Did the [trial] [c]ourt err in denying the claims that trial
counsel was ineffective for not advising Appellant to testify as to
his self-defense theory due to trial counsel’s erroneous view of
the evidence and the law regarding self-defense, thereby
violating the Sixth Amendment to the United States Constitution
and Article I, § 9 of the Pennsylvania Constitution?
(Appellant’s Brief, at 4).
“On review of orders denying PCRA relief, our standard is to determine
whether the PCRA court’s ruling is free of legal error and supported by the
record.” Commonwealth v. Boyer, 962 A.2d 1213, 1215 (Pa. Super.
2008) (citation omitted).
Before analyzing the issues in Appellant’s brief, we must determine
whether he properly preserved them for our review, as required by Rule
1925(b). Rule 1925(b) provides, in relevant part:
(b) Direction to file statement of errors complained of on
appeal; instructions to the appellant and the trial court.—
If the judge entering the order giving rise to the notice of appeal
(“judge”) desires clarification of the errors complained of on
appeal, the judge may enter an order directing the appellant to
file of record in the trial court and serve on the judge a concise
statement of the errors complained of on appeal (“Statement”).
* * *
(2) Time for filing and service.—The judge shall allow the
appellant at least 21 days from the date of the order’s entry on
the docket for the filing and service of the Statement. Upon
application of the appellant and for good cause shown, the judge
may enlarge the time period initially specified or permit an
amended or supplemental Statement to be filed. . . . In
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extraordinary circumstances, the judge may allow for the filing
of a Statement or amended or supplemental Statement nunc pro
tunc.
(3) Contents of order.—The judge’s order directing the
filing and service of a Statement shall specify:
(i) the number of days after the date of entry of the
judge’s order within which the appellant must file
and serve the Statement;
(ii) that the Statement shall be filed of record;
(iii) that the Statement shall be served on the judge
pursuant to paragraph (b)(1);
(iv) that any issue not properly included in the
Statement timely filed and served pursuant to
subdivision (b) shall be deemed waived.
4) Requirements; waiver.
* * *
(vii) Issues not included in the Statement
and/or not raised in accordance with the provisions
of this paragraph (b)(4) are waived.
Pa.R.A.P. 1925(b)(2),(3),(4)(vii).
An en banc panel of this Court recently stated:
Our Supreme Court intended the holding in
[Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998)] to operate
as a bright-line rule, such that “failure to comply with the
minimal requirements of Pa.R.A.P. 1925(b) will result in
automatic waiver of the issues raised.” Commonwealth v.
Schofield, . . . 888 A.2d 771, 774 ([Pa.] 2005) (emphasis
added); see also [Commonwealth v.] Castillo, 888 A.2d
[775, 780 (Pa. 2005)]. Given the automatic nature of this type
of waiver, we are required to address the issue once it comes to
our attention. Indeed, our Supreme Court does not countenance
anything less than stringent application of waiver pursuant to
Rule 1925(b): “[A] bright-line rule eliminates the potential for
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inconsistent results that existed prior to Lord, when . . .
appellate courts had discretion to address or to waive issues
raised in non-compliant Pa.R.A.P. 1925(b) statements.” Id.
Succinctly put, it is no longer within this Court’s discretion to
ignore the internal deficiencies of Rule 1925(b) statements.
* * *
Stated simply, it is no longer within this Court’s discretion
to review the merits of an untimely Rule 1925(b) statement
based solely on the trial court’s decision to address the merits of
those untimely raised issues. Under current precedent, even if a
trial court ignores the untimeliness of a Rule 1925(b) statement
and addresses the merits, those claims still must be considered
waived: Whenever a trial court orders an appellant to file a
concise statement of [errors] complained of on appeal pursuant
to Rule 1925(b) the appellant must comply in a timely manner.
Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d
222, 224-25 (Pa. Super. 2014) (en banc) (emphases in original) (some
citations and quotation marks omitted); see id. at 227 (holding that this
Court cannot address merits of issues on appeal where appellant failed to
comply timely with trial court’s order directing filing of Rule 1925(b)
statement).
Here, the record reflects that, on March 9, 2013, the PCRA court
issued an order in technical compliance with Rule 1925(b) requiring
Appellant to file a statement “[n]o later than May 7, 2013[.]” (Order,
3/09/13, at 1). The order provided “[A]ppellant is notified that . . . any
issue not properly included in the Statement timely filed and served
pursuant to Pa.R.[A.]P. 1925(b) shall be deemed waived.” (Id.) (emphasis
added). On May 7, 2013, the date that the Rule 1925(b) statement was
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due, Appellant, through counsel, requested a one-week extension to file it.
The court granted the extension and ordered Appellant to file it “no later
than May 31, 2013.” (Order, 5/07/13, at 1). Appellant filed his untimely
statement on June 7, 2013.
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 224. Accordingly, we may not
address the merits of those issues. See Greater Erie Indus. Dev. Corp.,
supra at 224-25, 227.3
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3
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
(Footnote Continued Next Page)
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Order affirmed.
Gantman, P.J., joins the Memorandum.
Bender, P.J.E., concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/2014
_______________________
(Footnote Continued)
court believes that there are arguably meritorious issues for
review[.] . . .
Pa.R.A.P. 1925(c)(1), (3)-(4). None of these circumstances is applicable in
the present case. With respect to Pa.R.A.P. 1925(c)(1), the record reflects
that Appellant’s Rule 1925(b) statement was not timely filed. With regard to
Pa.R.A.P. 1925(c)(3), the official note to the rule makes clear that remand is
available “only when the appellant has completely failed to respond to an
order to file a Statement. . . . [W]hen waiver occurs due to the improper
filing of a Statement . . . relief may occur only through the post-conviction
relief process[.]” Pa.R.A.P. 1925(c)(3), Note. Here, Appellant has not
completely failed to respond to the court’s order to file a Rule 1925(b)
statement. Finally, with respect to Pa.R.A.P. 1925(c)(4), counsel is privately
retained and has not filed an Anders/McClendon brief. Therefore, remand
is not available in the instant case.
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