Commonwealth v. Steadley , 2000 Pa. Super. 62 ( 2000 )

OLSZEWSKI, J.:

¶ 1 Katherine Steadley appeals nunc pro tunc from the judgment of sentence entered against her by the Court of Common Pleas of Lycoming County upon her convictions for possession with intent to deliver a controlled substance, possession of a controlled substance, delivery of a controlled substance, possession of drug paraphernalia, and criminal conspiracy. Because appellant has waived all issues for appeal since she failed to file a Pa.RAP. 1925(b) statement, the judgment of sentence is affirmed.

¶2 On January 27, 1997, District Justice Page issued an anticipatory search warrant¹ based upon the sworn affidavit provided by Officer Ungard of the Williamsport Bureau of Police. The affidavit stated that four “controlled buys” had occurred at 658 Hepburn Street, apartment 16 in Williamsport, Pennsylvania, since the investigation had begun.² The affidavit further specified that the warrant would not be executed unless another controlled buy occurred at the residence. A buy did in fact occur on January 27, 1997, and the Williamsport police then executed the anticipatory warrant and arrested appellant. Prior to trial, the Honorable Nancy L. Butts denied appellant’s motion to suppress in which appellant argued, inter alia, that the affidavit contained insufficient probable cause for the district justice to issue the warrant. After her conviction, appellant, acting pro se, attempted to file a notice of appeal, which the Prothonotary returned because her trial counsel had not yet been released from the case. On November 2, 1998, appellant, again acting pro se, filed a petition to appeal nunc pro tunc, which Judge Butts granted.

¶ 3 On April 16, 1999, Judge Butts ordered appellant to file a concise statement of the matters complained of on appeal based upon Pa.R.A.P. 1925(b) (hereinafter “Rule 1925(b)”) within fourteen days.³ By the end of April, appellant’s appointed counsel terminated his affiliation with the Public Defender’s Office and withdrew from this case. The court then permitted new counsel time to familiarize himself with the case prior to filing the ordered Rule 1925(b) statement. After four months had elapsed since originally ordering the statement, Judge Butts authored an opinion and order, dated 8/23/99, urging this Court to find appellant’s issues waived due to appellant’s noncompliance with the 1925(b) order. Acknowledging his oversight in failing to file a Rule 1925(b) statement, appellant’s new counsel nonetheless latched onto a phrase in the lower court’s 8/23/99 opinion and asked this Court to consider the merits of appellant’s case.⁴

¶ 4 We must first determine whether appellant has waived her claims by failing to file a Rule 1925(b) statement. Should we reach the merits of appellant’s claims, she submits that the lower court erred in finding that sufficient probable cause existed to validate an anticipatory search warrant.

¶ 5 The Commonwealth guides us to our Supreme Court’s recent holding in Commonwealth v. Lord:

[F]rom this date [October 28, 1998] forward, in order to preserve their claims for appellate review, Appellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Rule 1925. Any issues not raised in a 1925(b) statement will be deemed waived.

Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306, 309 (1998). The Court in Lord took the additional step of overturning a long line of Superior Court cases that had permitted appellate review in the absence of a Rule 1925(b) statement when the lack of a trial court opinion supposedly would not preclude effective review. See id. at 308. The Court concluded that, “the absence of a trial court opinion poses a substantial impediment to meaningful and effective appellate review.” Id.

¶ 6 Recently, Judge Cavanaugh, writing for two separate panels of this Court, has had the opportunity to establish this Court’s interpretation of Lord. See Commonwealth v. Overby, 744 A.2d 797 (Pa.Super.2000); Commonwealth v. Ortiz, 745 A.2d 662 (Pa.Super.2000). In Overby, the trial court requested a Rule 1925(b) statement, but appellant neglected to file the statement until five months after the request. Overby, 744 A.2d at 797-98. In the meantime, the trial court drafted a statement suggesting that this Court should find appellant’s issues waived. See id. Judge Cavanaugh, agreeing with the trial court, strictly interpreted the language of Lord and found appellant’s issues waived. See id.

¶ 7 In Ortiz, appellant filed his Rule 1925(b) statement after the fourteen-day period in which to file the statement had elapsed. See Ortiz, at 663 n. 3. The relevant distinction between Overby and Ortiz is that in Ortiz, the appellant did manage to file a Rule 1925(b) statement before the trial court drafted its Rule 1925(a) opinion. See id. Judge Cavanaugh then addressed this factual distinction in light of the Supreme Court’s concern in Lord that the lack of a trial court opinion precludes meaningful and effective appellate review. See id. He concluded that meaningful review could proceed under the Lord rationale because appellant did file a Rule 1925(b) statement, albeit late, before the trial court drafted its opinion. See id.

¶ 8 In the instant case, although appellant failed to submit a Rule 1925(b) statement, the trial judge nonetheless drafted an opinion. Presumably, the trial judge anticipated that appellant might raise the legality of the search warrant in her appeal. The judge therefore incorporated the 12/3/97 opinion⁵ into the 8/23/99 Rule 1925(a) opinion.

¶ 9 We are constrained by Lord and its progeny to find that appellant has waived the claim presently before this Court because she neglected to file a Rule 1925(b) statement. If we allow review of cases where a trial judge determined which issues an appellant could raise and how to frame those issues, that appellant would potentially lose a variety of protected constitutional rights. This procedure that appellant urges upon this Court would undermine the appellate process in that it severely limits the types and nuances of arguments that appellant may raise on appeal. Therefore, such a procedure prevents the meaningful appellate review sought in Lord.

¶ 10 Judgment of sentence affirmed.

¶ 11 Concurring and Dissenting Statement by POPOVICH, J.

1 . The Pennsylvania Supreme Court recently allowed appeal in Commonwealth v. Glass, 556 Pa. 62, 726 A.2d 1041 (1999), to determine whether anticipatory search warrants are constitutional.

2 . The affidavit is silent as to when the investigation began.

3 . Rule 1925(b) permits the lower court to order the appellant to submit to the court “a concise statement of the matters complained of on the appeal....” Pa.R.A.P.1925(b).

4 .In her Rule 1925(a) opinion, Judge Butts stated:

Instantly, the Defendant's right to appeal the legality of the search warrant is properly preserved under Pa.R.Crim. P(sic) 1410 (Issues raised before or during trial shall be deemed preserved for appeal whether or not the defendant elects to file a post-sentence motion on those issues.) The Opinion in support of this Court's Order with regard to the Defendant's Motion to Suppress is accompanying the Order dated December 3, 1997.

Trial Court Opinion, 8/23/99, at 2. Judge Butts misinterprets the relationship between Pa.R.Crim.P. 1410 and 1925. As discussed infra, Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998), issues not presented in a Rule 1925(b) statement are waived regardless of the issues' preservation status under Rule 1410. See id. at 308-09.

5 . This opinion denied appellant’s motion to suppress the evidence obtained while executing the anticipatory search warrant.