J -S48025-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHNNY T. BRANFORD
Appellant No. 2018 MDA 2016
Appeal from the Judgment of Sentence Entered November 2, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No: CP-06-CR-0002592-2015
BEFORE: OTT, STABILE, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 01, 2017
Appellant Johnny T. Branford appeals from the November 2, 2016
judgment of sentence entered in the Court of Common Pleas of Berks
County ("trial court"), following his jury convictions of two counts of first
degree murder, two counts of third degree murder, theft by unlawful taking,
access device fraud, possessing instruments of crime, and unauthorized use
of an automobile.' Because of Appellant's failure to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal, we remand this matter for the
filing of a Rule 1925(b) statement nunc pro tunc and for the preparation and
filing of a Rule 1925(a) opinion by the trial court.
* Retired Senior Judge assigned to the Superior Court.
' 18 Pa.C.S.A. §§ 2502(a), 2502(c), 3921(a), 4106(a)(1)(ii), 907(a), and
3928(a), respectively.
J -S48025-17
Following Appellant's counseled filing of a notice of appeal, on
December 6, 2016, the trial court ordered him to file a Rule 1925(b)
statement within 21 days. Appellant failed to comply. On May 19, 2017,
Appellant's counsel filed in this Court an Anders2 brief, claiming that
Appellant's convictions were supported by sufficient evidence. On May 24,
2017, Appellant's counsel filed a petition to withdraw as counsel.
On appeal, the Commonwealth correctly points out that at no point did
Appellant's counsel file a Rule 1925(b) statement in accordance with the trial
court's December 6, 2016 order.
It is well -settled that failure to file a Rule 1925(b) statement in
criminal cases is per se ineffective assistance of counsel. See
Commonwealth v. McBride, 957 A.2d 752, 755-56 (Pa. Super. 2008). As
a result, we remand for filing of a Rule 1925(b) statement nunc pro tunc
under Pa.R.A.P. 1925(c)(3).3 Id. at 756. Rule 1925(c)(3) provides:
If an appellantin a criminal case was ordered to file a Statement
and failed to do so such that the appellate court is convinced
2 Anders v. California, 386 U.S. 738 (1967).
3
We note that Rule 1925(c)(4) also provides:
In a criminal case, counsel may file of record and serve on the
judge a statement of intent to file an Anders/McClendon brief
in lieu of filing a Statement. If, upon review of
the Anders/McClendon brief, the appellate court believes that
there are arguably meritorious issues for review, those issues
will not be waived; instead, the appellate court may remand for
the filing of a Statement, a supplemental opinion pursuant
to Rule 1925(a), or both. Upon remand, the trial court may, but
is not required to, replace appellant's counsel.
Pa.R.A.P. 1925(c)(4).
-2
J -S48025-17
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.
Pa.R.A.P. 1925(c)(3).
We remand this matter to the trial court and, within 21 days of the
trial court's receipt of the record from the Superior Court Prothonotary, the
trial court shall order Appellant to file a Rule 1925(b) statement nunc pro
tunc. The trial court shall then prepare and file a detailed Rule 1925(a)
opinion within 60 days of the filing of the Rule 1925(b) statement. Upon the
filing of the Rule 1925(a) opinion, the record is to be returned to this Court
within 30 days. At that time, this Court may require the filing of
supplemental briefs.
Matter remanded with directions to file a Rule 1925(b) statement nunc
pro tunc and a Rule 1925(a) opinion. Panel jurisdiction retained.
-3