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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES REIMER :
:
Appellant : No. 1096 EDA 2019
Appeal from the Order Entered March 23, 2018
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0001150-2018
BEFORE: NICHOLS, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY NICHOLS, J.: FILED JULY 20, 2020
Appellant James Reimer appeals the judgment of sentence imposed
following his conviction by the trial court without a jury (bench trial) for the
summary offenses of careless driving, careless driving/unintentional death,
careless driving/serious bodily injury, operating a vehicle with unsafe
equipment, failing to stop at a red signal, and related offenses.1 Appellant
presents various arguments challenging the sufficiency and weight of the
evidence. We remand for further proceedings consistent with this
memorandum.
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* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S. §§ 3714(a), 3714(b), 3714(c), 4107(b)(2), and 3112(a)(3)(i),
respectively. Appellant was initially charged with several misdemeanor DUI
offenses. However, immediately before the bench trial, the Commonwealth
conceded that Appellant’s blood sample was improperly obtained, and elected
to proceed solely on the summary offenses. N.T. Trial, 1/14/19, at 4.
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The trial court summarized the facts and procedural history of this case
as follows:
The offenses for which [Appellant] was convicted took place on
October 12, 2017, at the intersection of Route 23 and Bar Harbor
Drive in West Conshohocken.
On that date, [Appellant] was operating a Mack dump truck
traveling westbound on Front Street, Route 23, at approximately
9:30 in the morning.
The sky was overcast and it had been raining off and on
throughout the morning. A traffic signal controls the flow of traffic
at the intersection where the accident occurred. [Appellant]’s
truck struck an oncoming Toyota sedan that had been making a
left hand turn onto Bar Harbor Drive from eastbound Route 23.
The force with which [Appellant]’s truck hit the Toyota caused the
Toyota to hit a Mazda sedan that was stopped on Bar Harbor
Drive.
The Toyota was driven by Mr. John Hardy and carried the
passenger, Mrs. Darnell Hardy. As a result of the accident, Mrs.
Hardy died on the scene and Mr. Hardy suffered serious injuries.
The driver of the Mazda, Mr. Herman Lee, was not injured as a
result of the crash.
* * *
[The trial court conducted a bench trial on January 14, 2019. The
trial court received testimony from several eyewitnesses, the
investigating officer, and a crash investigation expert on behalf of
the Commonwealth. Appellant called Mr. Hardy as a witness and
testified on his own behalf.]
Upon conclusion of the one-day bench trial, [Appellant] was found
guilty on all counts. Sentencing occurred simultaneous to the
verdict and [Appellant] was directed to pay fines resulting from
the violations of the vehicle code in addition to restitution.
[Appellant] incurred fines totaling eight hundred dollars ($800).
[Appellant] was directed to pay restitution in the amount of
Twenty-Four Thousand Seven Hundred Fifty Three Dollars and
Eighty Nine Cents ($24,753.89), designated between the estate
of the deceased, [Mrs.] Hardy, the driver of the vehicle, [Mr.]
Hardy, and PennDOT.
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[Appellant] filed a post sentence motion on January 23, 2019,
seeking a new trial and a modification of restitution. After a
hearing on the post sentence motion on February 22, 2019, and
a new hearing on restitution on March 20, 2019, [the trial court]
denied [Appellant]’s request for a new trial, and modified in part
the [c]ourt’s original restitution order. The new order provided an
itemized list for restitution in addition to removing the provision
directing restitution to be paid to [PennDOT].
[Appellant filed a timely post-sentence motion on January 23,
2019. The motion raised, among other things, a claim that the
verdict was against the weight of the evidence.2 On March 21,
2019, the trial court issued an order granting in part, denying in
part, and vacating in part.3]
On April 9, 2019, [Appellant] filed a timely notice of direct appeal
to the Superior Court of Pennsylvania. By Order dated April 11,
2019, the [trial court] directed [Appellant] to file a statement of
errors complained of on appeal, pursuant to Pennsylvania Rule of
Appellate Procedure 1925(b). [The trial court] received
[Appellant]’s timely-filed 1925(b) statement on May 2, 2019.
Trial Ct. Op., 6/7/19, at 1-4.
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2 Specifically, in his post-sentence motion for a new trial, Appellant argued:
The verdict was against the weight of the evidence with respect
to the question of whether: (a) [Appellant] operated his vehicle
carelessly at any time relevant hereto; (b) that said careless
driving was the direct cause of the death of [Mrs. Hardy] and the
serious bodily injury sustained by [Mr.] Hardy.
Appellant’s Post-Sentence Motion, 1/23/19, at 2-3. In support of his request
for a new trial, Appellant argued that Mr. Hardy had no recollection of the
accident, that Mr. Hardy made an illegal turn in front of Appellant’s vehicle,
that testimony that Appellant was traveling fifty-five to sixty miles per hour
was unreliable and incredible, and that Appellant could not have discovered
problems with the brakes on his vehicle. Id. at 3.
3 The trial court denied Appellant’s requests for a new trial, but granted
Appellant’s requests to vacate the sentence of restitution to PennDOT and
laboratory costs.
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In his 1925(b) statement, Appellant raised six claims of error:
1. The trial court erred as a matter of law in finding [Appellant]
guilty on all counts as the verdict was contrary to the weight of
evidence. The trial court erred as a matter of law in allowing a
lay witness to guess the speed of defendant, [Appellant’s]
vehicle at any time relevant to the charge of careless driving.
2. The trial court erred as a matter of law in finding [Appellant]
guilty of violation[s] of [75 Pa.C.S. §§ 3112(a)(3)(i)— failure
to stop at red signal, 3714(a)—careless driving, 3714(b)—
careless driving causing unintentional death, 3714(c)—careless
driving causing serious bodily injury, and 4107(b)(2)—
operating a vehicle with unsafe equipment] arising out of a
motor vehicle accident which occurred at the intersection of
Front Street and Bar Harbor Drive in West Conshohocken,
Pennsylvania on or about October 12, 2017 as such finding was
contrary to the testimony of Detective Morrissey who testified
that the defective brakes on the subject vehicle would not have
been discovered by [Appellant’s] visual inspection.
3. The trial court erred as a matter of law in disregarding the
evidence of [Mr.] Hardy’s violation of Section 3322 of the
[Pennsylvania] Motor Vehicle Code which caused the crash
involving [Appellant’s] vehicle.
4. The trial court erred in allowing hearsay evidence on the issue
of restitution.
5. The trial court erred in allowing hearsay evidence on the issue
of restitution without regard to the fair market value of the
costs expenses requested.
6. The trial court abused its discretion in awarding restitution for
the following:
a. Excessive vehicle storage charges
b. Musicians for [victim’s] funeral;
c. Excessive expert witness fees;
d. Witness fee for a Cheltenham police officer; and
e. Excessive vehicle towing and clean up fee.
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Appellant’s Rule 1925(b) Statement.
Of relevance to this appeal,4 the trial court, in its Rule 1925(a) opinion,
interpreted Appellant’s first two issues as challenges to the weight of the
evidence. Trial Ct. Op. at 6. The trial court responded to Appellant’s claims
by emphasizing that credible eyewitness testimony established that Appellant
was speeding and that his truck had traveled beyond the stop bar when the
signal in his direction turned red. Id. at 7. In addition, the trial court pointed
out that, according to the testimony of Detective Morrissey, Appellant’s pre-
trip inspection should have revealed defects in a tire and the steering axle of
his vehicle. Id. The trial court stated that it “found the . . . testimony of
[Brian Leflar, Daniel Finnegan, and Detective Morrissey] to be credible, and
trustworthy.” Id. Further, in addressing Appellant’s first issue, the trial court
concluded that Appellant’s objection to the trial court’s reliance on lay witness
testimony concerns the admissibility, not the weight of the evidence. Id. at
8. Accordingly, the trial court opined that it did not abuse its discretion when
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4 With respect to Appellant’s third claim in his Rule 1925(b) statement that
complainant Mr. Hardy committed a traffic violation and caused the accident,
the trial court noted that the record was silent as to any citations or violations
issued to or committed by Mr. Hardy and concluded that comparative and
contributory negligence did not impact Appellant’s guilt or whether Appellant’s
actions satisfied the element of the crime for which he was convicted. Trial
Ct. Op. at 10.
As to Appellant’s remaining three claims regarding restitution, the trial court
concluded that it properly admitted receipts and invoices as part of sentencing
and that its award of restitution was not excessive. Id. at 8-10. As discussed
herein, Appellant has abandoned his challenges to the trial court’s order of
restitution on appeal.
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denying Appellant’s post-sentence motion challenging the weight of the
evidence. Id.
In his brief, Appellant raises the following question for our review:
Does a trial court in a bench trial err by convicting a defendant
without concluding that the Commonwealth established that
defendant operated his “vehicle in careless disregard for the
safety of persons or property” under 75 Pa.C.S. § 3714?
Appellant’s Brief at 5.
Appellant asserts that the trial court was required to determine that
Appellant violated “all provisions of a statute” before entering a finding of guilt.
Id. at 13. Appellant contends that his careless driving convictions were
improper because the trial court did not conclude that he acted carelessly
within the meaning of Section 3714.5 Id. at 15. Relying on Commonwealth
v. Gezovich, 7 A.3d 300 (Pa. Super. 2010) and Commonwealth v.
Huggins, 836 A.2d 862 (Pa. 2003), Appellant argues that the mens rea
element of careless driving requires the Commonwealth to prove that
Appellant acted with more than ordinary tort negligence. Specifically,
Appellant contends that his careless driving convictions required the
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5 Appellant indicates that he is not challenging the trial court’s “findings of
guilt” for disregarding a red traffic signal under 75 Pa.C.S. § 3112(a)(3), nor
for unlawful activities under 75 Pa.C.S. § 4107(b)(2). Appellant’s Brief at 5,
n.1. However, later in his brief, Appellant states that he “appeals from his
conviction and imposition of sentence for (1) failing to stop at a red signal, (2)
careless driving/unintentional death, (3) careless driving/serious bodily injury,
(4) and operating a vehicle with unsafe equipment, following a one-day bench
trial. Id. at 6.
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Commonwealth to establish “willful or wanton disregard for the safety of
persons or property.” Id. at 12.
Appellant concedes that “the record here could reasonably lead to a
conclusion that [Appellant] was negligent,” but he argues that the trial court’s
Rule 1925(a) opinion does not indicate “whether the [trial] court deemed the
conduct sufficient to meet the statutory standard.” Id. at 17. Appellant
summarizes the record and asserts that the trial court “ignored substantial
evidence, including testimony from witnesses cited in the [trial court opinion],
to support the bench trial verdict.” Id. at 15. Appellant maintains that the
trial testimony presented a question regarding the sufficiency of the evidence
that was “left unanswered by the trial court opinion.” Id. at 17.
In sum, Appellant contends that “(1) the finding [of guilt] did not meet
the statutory requirements, and (2) the finding was against the weight of the
evidence.” Id. Appellant suggests that “this Court should vacate the finding
of guilty under 75 Pa.C.S. § 3714 and vacate the sentence imposed for that
alleged violation.” Id. at 24.
The Commonwealth notes that it is unclear whether Appellant intends
to challenge the weight or the sufficiency of the evidence. Commonwealth’s
Brief at 7. In either case, the Commonwealth contends that Appellant’s claims
are waived. Id. at 6. The Commonwealth acknowledges that Appellant timely
filed a court-ordered Rule 1925(b) statement identifying six issues. Id. at 8.
However, the Commonwealth asserts that Appellant “either wholly failed to
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identify, or failed to provide sufficient detail to identify, the issue[s] presented
in his appellate brief.” Id. at 8.
Specifically, the Commonwealth asserts that Appellant failed to raise a
sufficiency challenge in his Rule 1925(b) statement. Id. at 9. The
Commonwealth contends that because Appellant did not discuss the mens rea
issue in his concise statement, that argument is waived. Id. at 7. Relying on
Commonwealth v. Williams, 959 A.2d 1252 (Pa. Super. 2008), the
Commonwealth submits that Appellant’s sufficiency claim is waived for failure
to specify the unproven elements. Id. at 8-9.
Next, citing Commonwealth v. Postie, 110 A.3d 1034 (Pa. Super.
2015), the Commonwealth posits that Appellant waived his weight of the
evidence claims because his arguments lacked sufficient detail and were not
adequately developed in his appellate brief. Id. at 8, 15. The Commonwealth
argues that, although Appellant claimed the verdict was against the weight of
the evidence in his Rule 1925(b) statement, “he failed to specify that the basis
for his careless driving weight claim was the supposed lack of evidence that
he acted with a mens rea more culpable than mere negligence.” Id. at 10.
The Commonwealth further argues that Appellant’s brief contains no citation
to legal authority to support his weight of the evidence argument and does
not state the applicable standard of appellate review in his brief. Id. at 15.
The Commonwealth observes that Appellant “simply invites this Court to
reweigh the evidence.” Id.
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Moreover, the Commonwealth contends that Appellant’s challenges to
the sufficiency and weight of the evidence are meritless because “ample
evidence showed that Appellant’s conduct was worse than mere negligence.”
Id. at 6, 7. Specifically, the Commonwealth argues that Appellant’s
sufficiency claim lacks merit because eyewitness testimony established that
Appellant was driving so erratically moments before the crash that other
drivers distanced themselves to avoid collisions. Id. at 12. Based on this
evidence, the Commonwealth contends that the trial court reasonably inferred
that Appellant’s conduct was more than negligent. Id. at 13. To the extent
Appellant raises a weight claim, the Commonwealth argues that the trial court
did not abuse its discretion in rendering its guilty verdict based on ample
evidence including, eyewitness testimony about Appellant’s dangerous
driving, and the severity of the collision, such that a finding of guilt is not
shocking to one’s conscience. Id. at 14-15.
We note that a sufficiency of the evidence claim questions whether the
evidence established “each material element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (citation
omitted); see also Commonwealth v. Williams, 176 A.3d 298, 305 (Pa.
Super. 2017), appeal denied, 187 A.3d 908 (Pa. 2018). “Counsel is not
required to make a motion with the trial court in order to preserve a challenge
to the sufficiency of the evidence.” Commonwealth v. Orellana, 86 A.3d
877, 879 (Pa. Super. 2014) (citation omitted and some formatting altered).
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Nevertheless, this Court has held that “when challenging the sufficiency of the
evidence on appeal, the [a]ppellant’s [Rule] 1925 statement must specify the
element or elements upon which the evidence was insufficient in order to
preserve the issue for appeal.” Commonwealth v. Garang, 9 A.3d 237, 244
(Pa. Super. 2010) (citation and quotation marks omitted); see also
Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011) (noting
that a trial court should not have to guess which issues are being raised and
that a Rule 1925(b) statement “which is too vague to allow the court to identify
the issues raised on appeal is the functional equivalent of no [c]oncise
[s]tatement at all.” (citation and quotation marks omitted)). The proper
remedy for insufficient evidence is to vacate the conviction and discharge the
defendant for that offense. Commonwealth v. Whiteman, 485 A.2d 459,
461 (Pa. Super. 1984).
In contrast, a “challenge to the weight of the evidence is distinct from a
challenge to the sufficiency of the evidence in that the former concedes that
the Commonwealth has produced sufficient evidence of each element of the
crime, but questions which evidence is to be believed.” Commonwealth v.
Kinney, 157 A.3d 968, 971 (Pa. Super. 2017) (citation omitted and some
formatting altered). “[A] challenge to the weight of the evidence must be
raised with the trial judge or it will be waived.” Commonwealth v. Gillard,
850 A.2d 1273, 1277 (Pa. Super. 2004) (citation omitted). “The trial court
will only award a new trial when the jury’s verdict is so contrary to the
evidence as to shock one’s sense of justice.” Commonwealth v. Olsen, 82
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A.3d 1041, 1049 (Pa. 2013) (citation and quotation marks omitted). An
appellate court must then “review the trial court’s exercise of discretion, not
the underlying question of whether the verdict is against the weight of the
evidence.” Id. (citation omitted and some formatting altered). When a
verdict is found to be against the weight of the evidence, the proper remedy
is a new trial. Whiteman, 485 A.2d at 461.
Instantly, Appellant’s arguments present various challenges that could
be interpreted as sufficiency or weight of the evidence claims. Appellant
purports to challenge the sufficiency of the evidence for his convictions on
three counts of careless driving under Section 3714(a), (b), and (c)
respectively, and expressly requests that this Court vacate these convictions
in his brief because the Commonwealth failed to prove the element of
carelessness. See Appellant’s Brief at 24.
Yet, other than making bald assertions, Appellant has failed to develop
his argument with any specificity as to any alleged unproven elements in his
brief for the careless driving offenses, nor is his sufficiency challenge to the
carelessness element specified in his Rule 1925(b) statement. See Appellant’s
Rule 1925(b) Statement at ¶1-2. Further, Appellant’s Rule 1925(b) statement
conflates sufficiency and weight claims, which the trial court identified solely
as a weight of the evidence claim. See Hansley, 24 A.3d at 415 (noting that
a “court’s review and legal analysis can be fatally impaired when the court has
to guess at the issues raised”); see also Garang, 9 A.3d at 244 (reiterating
“the [a]ppellant'’s [Rule] 1925 statement must specify the element or
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elements upon which the evidence was insufficient in order to preserve the
issue for appeal.” (citation and quotation marks omitted)). Accordingly,
Appellant failed to preserve his sufficiency claim for appeal, and it is therefore,
waived. Accordingly, we cannot consider this claim.6 See id.
Appellant further contends that (1) the trial evidence could be read as
indicating that the vehicle that Appellant struck made a turn against a red
light, (2) Appellant may not have had a red light, (3) Appellant could not have
been aware of the defects on his truck, and (4) the Commonwealth was unable
to determine Appellant’s speed when the accident occurred. Appellant’s Brief
at 17-21. Here, Appellant appears to raise weight of the evidence claims
against his careless driving convictions under Section 3714(a), in addition to
failure to stop at red signal and operation of a vehicle with unsafe equipment.
Appellant raised a weight of the evidence claim in his post-sentence
motion. See Gillard, 850 A.2d at 1277; Appellant’s Post Sentence Mot. at 2
(claiming that “[t]he verdict was against the weight of the evidence with
respect to the question of whether [Appellant] operated his vehicle carelessly
at any time relevant [to the accident]”). The trial court denied this claim, and
in its Rule 1925(a) opinion, explained that it found the testimony of Brian
Leflar, Daniel Finnegan, and Detective Morrissey, to be credible and
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6 Moreover, to the extent Appellant appears to challenge his convictions for
failing to stop at a red light and operating a vehicle with unsafe equipment,
he has not developed any meaningful arguments based on the elements of
those offenses, and therefore his sufficiency claims as to these charges is also
waived.
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trustworthy, and that Appellant’s claims did not merit relief. See Trial Ct. Op.
at 7.
Although Appellant raised his weight of the evidence claim in his post-
sentence motion before the trial court, we are constrained to conclude that
his appellate challenge to the weight of the evidence has been waived.
Appellant has failed to properly argue this claim in his brief submitted to this
Court because Appellant failed to develop his arguments, or set forth the
applicable standard for appellate review, and legal authority to support his
arguments before this Court. See Commonwealth v. Rahman, 75 A.3d
497, 504 (Pa. Super. 2013). Specifically, Appellant failed to explain how the
bench trial verdict was shocking to one’s sense of justice. See Olsen, 82 A.2d
at 1049. Therefore, Appellant’s claim that the bench trial verdict was against
the weight of the evidence is waived, and we cannot consider it. See
Rahman, 75 A.3d at 504.
Although we conclude that Appellant has failed to preserve any of his
appellate issues, our review is not ended. We now consider whether this Court
may address the trial court’s restitution order sua sponte as a challenge to the
legality of sentence, and whether appellate counsel’s failure to preserve any
issues in Appellant’s direct appeal constitutes per se ineffective assistance of
counsel warranting nunc pro tunc relief.
With respect to restitution, we observe that in general, the trial court’s
authority to order restitution implicates the legality of sentence which is not
waivable. Commonwealth v. Burwell, 58 A.3d 790, 792 (Pa. Super. 2012).
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This Court may raise and review an illegal sentence claim sua sponte.
Commonwealth v. Ramos, 197 A.3d 766, 768 (Pa. Super. 2018).
Moreover, in Commonwealth v. Weir, 201 A.3d 163 (Pa. Super.
2018), appeal granted, 215 A.3d 966 (Pa. 2019), this Court explained that
there is a
distinction between claims that challenge the sentencing court’s
statutory authority to impose restitution, and those which
seemingly concede such authority, but challenge the court’s
exercise of discretion in determining the appropriate amount of
restitution. Accordingly, in determining whether a particular claim
implicates the legality or discretionary aspects of sentencing, we
do not merely look at the manner in which a restitution challenge
is phrased; we must instead examine the specific nature of the
claim presented to determine whether it challenges the sentencing
court’s statutory authority to impose restitution, or its discretion
in determining the amount of restitution.
Weir, 201 A.3d at 172 (citation omitted). “[W]here the Commonwealth has
established each element of § 1106(a), i.e., the victim suffered loss to person
or property directly caused by the specific crime committed by the defendant,
a claim that the restitution order is excessive implicates the discretionary
aspects of sentencing.” Id. at 174 (emphasis and citations omitted). Further,
if a claim implicates the discretionary aspects of sentencing, the claim must
be properly preserved on appeal, or be subject to waiver.7 See id. at 174-
75.
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7 We acknowledge that our Supreme Court has granted allowance of appeal
in Weir on the following question:
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Instantly, we note that in his Rule 1925(b) statement, Appellant
challenged his restitution sentence based on the admission of hearsay
testimony and argued that the restitution amount was excessive. Appellant’s
Rule 1925(b) Statement at ¶¶ 4-6. However, our review of the Rule 1925(b)
statement reveals that Appellant’s restitution claim does not specifically
challenge any element of Section 1106(a), including the victim suffering loss
to person, or property directly caused by Appellant’s crimes. See Weir, 201
A.3d at 174. Consequently, it appears that Appellant has limited his
restitution claim to challenging the amount of his restitution sentence as
excessive. See id. Accordingly, Appellant’s restitution claim implicates the
discretionary aspects of sentencing and not the legality of his sentence. Other
than bald assertions of excessiveness, Appellant failed to argue his restitution
claim with any specificity, or challenge to any element of Section 1106(a), nor
has Appellant included a Pa.R.A.P. 2119(f) statement in his appellate brief.
Therefore, Appellant has abandoned his restitution claims, and he has failed
to preserve his challenge to the discretionary aspects of his sentence for our
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Whether the Superior Court majority erred in holding that a
challenge to an order of restitution pursuant to 18 Pa.C.S. § 1106
(Restitution for Injuries to Persons or Property), contending that
the amount is speculative and not supported by the record, always
implicates the discretionary aspects of sentence that is subject to
waiver, or whether such a challenge actually may implicate the
legality of sentence and is non-waivable, as Judge Kunselman
correctly concluded in her concurring opinion?
Weir, 215 A.3d at 966. However, an opinion of this Court remains binding
until the Pennsylvania Supreme Court overrules the decision.
Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006).
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review. See Rahman, 75 A.3d at 504; see also Commonwealth v. Derry,
150 A.3d 987, 991 (Pa. Super. 2016) (noting that “[a]n appellant challenging
the discretionary aspects of his sentence must invoke this Court’s jurisdiction”
by including a Pa.R.A.P. 2119(f) statement in his brief). In sum, these claims
are waived, and we may not address them sua sponte.
Lastly, given our findings that no appellate issues have been preserved,
we consider whether Appellant’s counsel’s performance on appeal constitutes
ineffectiveness per se and, if so, whether there is a remedy. See
Commonwealth v. Parrish, 224 A.3d 682, 701-02 (Pa. 2020). By way of
background, in Commonwealth v. Rosado, 150 A.3d 425 (Pa. 2016), our
Supreme Court held “that the filing of an appellate brief which abandons all
preserved issues in favor of unpreserved ones constitutes ineffective
assistance of counsel per se.” Rosado, 150 A.3d at 434. In that case, the
appellant initially took a direct appeal. Id. at 426. This Court found no issues
preserved and summarily affirmed because appellate counsel filed a Rule
1925(b) statement, but then filed a brief attempting to raise an unpreserved
sufficiency of the evidence claim. Id.
The appellant then filed a Post Conviction Relief Act8 (PCRA) petition to
reinstate his direct appeal rights. Id. at 426-27. The PCRA court denied relief
and this Court affirmed. Id. at 427. Our Supreme Court reversed this Court,
reiterating “that errors which completely foreclose appellate review amount
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8 42 Pa.C.S. §§ 9541-9546.
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to a constructive denial of counsel and thus ineffective assistance of counsel
per se, whereas those which only partially foreclose such review are subject
to the ordinary Strickland/Pierce framework.” Id. at 433 (emphasis in
original). The Rosado Court further noted that
the filing of a brief that raises only waived issues, while technically
distinct, is nonetheless akin to failing to file documents perfecting
an appeal. There 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.
Id. at 434.
In Parrish, the appellant in a capital murder case sought PCRA relief
after our Supreme Court affirmed his judgment of sentence on direct appeal.
Parrish, 224 A.3d at 686. The appellant timely filed his first PCRA petition
and the PCRA court appointed PCRA counsel. Id. Following lengthy
proceedings that included the filing of at least three amended PCRA petitions
raising numerous claims and two evidentiary hearings, the PCRA court denied
relief. Id. at 686-89. The appellant timely appealed the trial court’s order
denying PCRA relief to our Supreme Court. PCRA counsel timely filed a Rule
1925(b) statement, but the PCRA court found the statement too vague for the
court to determine which rulings that Appellant was contesting, and filed its
order denying relief, which the PCRA court addressed in its 1925(a) opinion.
Id. at 689-90
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Following a remand for new appellate counsel and supplemental briefs,
our Supreme Court in Parrish, considered whether PCRA counsel’s filing of a
vague Rule 1925(b) statement in the appeal constituted ineffective assistance
of counsel per se. Id. at 690-91. The High Court summarized the history of
Rule 1925, id. at 691-96, and noted that current Rule 1925(c)(3) states:
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.
Id. at 691-92 (quoting Pa.R.A.P. 1925(c)(3)).
The Parrish Court concluded that the Rule 1925(b) statement filed in
that appeal was vague such that Rule 1925(b)(4)(vii) mandated waiver of all
appellate claims. Id. at 700. The Parrish Court discussed Rosado and
determined that PCRA counsel’s “filing of a vague Rule 1925(b) statement,
which has completely forfeited [the appellant’s] right to appellate review of
his collateral claims, constitutes ineffective assistance of assistance of counsel
per se.” Id. at 701-02.
In its conclusion, the Parrish Court reasoned:
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.
[Commonwealth v. Albrecht, 720 A.2d 693, 700-01 (Pa.
1998)]; see also [Commonwealth v. Albert, 561 A.2d 736, 738
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(Pa. 1989)] (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, [the 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.
Id. at 702 (footnote omitted).
Here, although Appellant’s counsel filed a Rule 1925(b) statement, the
weight and sufficiency claims were based on conflated legal arguments, bald
assertions, and unpreserved claims that required the trial court to guess the
specific issues that Appellant sought to raise on appeal. See Hansley, 24
A.3d at 415. Under these circumstances, we conclude that the Rule 1925(b)
statement was vague and deficient, which is tantamount to filing no concise
statement at all. See id.
Further, in addition to waiving his sufficiency and weight claims,
Appellant’s counsel filed a brief in which he abandoned any remaining claims
that he preserved or attempted to preserve in the Rule 1925(b) statement.
Instead, Appellant’s counsel raised an entirely new issue, which he did not
raise before the trial court. See Rosado, 150 A.3d at 434; see also Hansley,
24 A.3d at 415. Accordingly, because Appellant’s counsel forfeited all
meaningful appellate review by filing a deficient Rule 1925(b) statement and
a brief in which he abandoned any properly preserved claims, he was
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ineffective per se. See Rosado, 150 A.3d at 434; see also Parrish, 224
A.3d at 702. We now consider the appropriate remedy in this case.
Unlike the Parrish Court’s remand order, which was based, in part, on
Rule 1925(c)(4), neither Rosado nor our Rules of Appellate Procedure provide
for immediate nunc pro tunc relief by an appellate court. See Parrish, 224
A.3d at 686. Moreover, the general rule in Pennsylvania is that “claims of
ineffective assistance of counsel are to be deferred for PCRA review.”
Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013); see also
Rosado, 150 A.3d at 428.
However, deferring the matter of Appellant’s counsel’s per se
ineffectiveness to a PCRA proceeding is problematic. Appellant was convicted
of summary offenses, none of which carried the possibility of imprisonment,
and Appellant’s sentence consisted of only restitution, fines, and costs.
Therefore, Appellant is not eligible for PCRA relief. See 42 Pa.C.S. §
9543(a)(1)(i) (stating that to be eligible for PCRA relief, the petitioner must,
in part, “plead and prove by a preponderance of the evidence that the
petitioner has been convicted of a crime under the laws of this Commonwealth
and is at the time relief is granted . . . currently serving a sentence of
imprisonment, probation or parole for the crime”); see also Commonwealth
v. James, 771 A.2d 33, 36 (Pa. Super. 2001) (holding that a PCRA petitioner
was ineligible for relief when the petitioner’s sentence and probationary period
expired and only the order of restitution remained). But see
Commonwealth v. Delgros, 183 A.3d 352, 361 (Pa. 2018) (noting that a
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defendant sentenced to pay a fine was not eligible for PCRA relief, and further
holding that a trial court was required to consider claims of ineffective
assistance of counsel raised in a post-sentence motion).
Instantly, although Appellant was convicted of summary offenses, he
has a constitutional right to file an appeal. See Commonwealth v. Stock,
679 A.2d 760, 764 (Pa. 1996) (discussing Pa. Const. Art. V, § 9). Therefore,
in order to protect Appellant’s constitutional right to appeal, we remand the
matter to the trial court for further proceedings consistent with this
memorandum. See Parrish, 224 A.3d at 686; Rosado, 150 A.3d at 434.
Specifically, we remand this matter for the trial court to determine
whether Appellant is entitled to appointed appellate counsel. If so, the court
shall appoint new counsel within forty-five days of this decision, unless
Appellant elects to proceed pro se, or with private counsel. Given the recent
judicial emergency, the trial court shall inform this Court if more time is
required.
Case remanded with instructions. Jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2020
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