J. Credico v. Com. of PA ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Justin Credico :
Appellant :
:
v. : No. 1459 C.D. 2018
: Submitted: August 28, 2020
Commonwealth of Pennsylvania, :
Chester County Adult Probation/Parole, :
Unknown Official of Adult Probation, :
Chester County District Attorney’s :
Office, Unknown DA of Chester :
County, Chester County Hospital, :
Unknown Official of PA State Health :
Department, Unknown Chester County :
Hospital Nurse, United States Health :
and Human Services, Unknown FBI :
Agents of Philadelphia, Unknown FBI :
Agents of Newtown Square, Chester :
County, Delaware County, Delaware :
County Probation/Parole, Unknown :
Officials of Delaware County Probation, :
Delaware County District Attorney’s :
Office, Unknown DA of :
Delaware County, J. Phyllis Streitel, :
Chester County Prison, Unknown :
Official of Chester County Prison, :
John & Jane Does, United States, :
Unknown Chester County Prison :
Official, Unknown Chester County :
Prison Mental Health Officials, :
Ziggler, Yanazelli, et al., Unknowns, :
Unknown Prime Care Medical Officials :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: February 10, 2021
Following remand to the Court of Common Pleas of Chester County (trial
court), this case returns to us for resolution of one issue: whether Justin Credico
(Credico) has waived all issues on appeal by failing to file and serve a statement of
errors complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b), Pa.R.A.P. 1925(b) (Rule 1925(b)). Credico appeals from a June
1, 2018 Order (June 2018 Order) of the trial court denying Credico’s motion to
proceed in forma pauperis so that he could file a petition to open or strike a judgment
of non pros that was entered against him. Because it was unclear based on the record
before us whether Credico properly filed and served a Rule 1925(b) statement, we
remanded to the trial court to determine if Credico complied with the requirements
of Rule 1925(b). Credico v. Commonwealth (Pa. Cmwlth., No. 1459 C.D. 2018,
filed Nov. 22, 2019) (Credico I). Upon remand, the trial court found that Credico
did not file and serve a Rule 1925(b) statement. Because we are bound by the trial
court’s findings, we affirm its June 2018 Order.
The complete procedural and factual history of this matter was set forth in
Credico I; therefore, we set forth only that which is relevant here. We explained in
Credico I as follows:
On June 12, 2018, Credico simultaneously filed a notice of
appeal of the June 2018 Order[ ] and what he labeled as a Rule 1925(b)
statement (June Rule 1925(b) Statement).[ ] The certificate of service
accompanying the notice of appeal and June Rule 1925(b) Statement
indicates only that the [Prothonotary of Chester County’s
(prothonotary)] office was sent a copy, but does not mention service on
the trial court. On June 26, 2018, the trial court issued an order
2
directing Credico to file a Rule 1925(b) statement within 21 days. The
order directed Credico to file the statement of record and serve a copy
on the trial court pursuant to Rule 1925(b)(1). The order warned that
“[a]ny issue not properly included in the [s]tatement timely filed and
served pursuant to [Rule 1925(b)] shall be deemed waived. Attention
is directed to [Rule 1925(b)(4),] which sets forth requirements for the
[s]tatement.” (June 26, 2018 trial court order.)
The record does not reflect any other Rule 1925(b) statement
being filed. However, in its July 24, 2018, Order in Lieu of 1925
Opinion, the trial court noted that it received a Rule 1925(b) statement
from Credico on July 5, 2018 (July Rule 1925(b) Statement), but it was
not filed with the prothonotary. The trial court acknowledged that
Credico filed the June Rule 1925(b) Statement simultaneously with his
notice of appeal in June, but found it was not in compliance with the
order directing him to serve it upon the trial court. The trial court also
explained that the June Rule 1925(b) Statement filed with the
prothonotary was different from the July Rule 1925(b) Statement that
was served on the trial court but purportedly not filed with the
prothonotary. Because Credico did not file a Rule 1925(b) statement
in compliance with the trial court’s order and Rule 1925(b), the trial
court reasoned that Credico had waived all objections to the June 1,
2018 Order.[ ]
Credico I, slip op. at 5-6 (footnotes omitted).
As we noted in Credico I, the certificate of service for the June Rule 1925(b)
Statement does not show service on the trial court and the July Rule 1925(b)
Statement is not docketed as having been filed of record. Id. at 10. However,
Credico asserted that he did properly file and serve both statements, arguing that he
“sent both copies, and for unknown rea[s]ons beyond his control – as he was a
prisoner using prison legal mail systems and prisoner mailbox rule process - . . . the
prothonotary never received the matters complained of, but the chambers did.” Id.
at 11 (quoting Credico’s Reply Brief at 2). Because there remained a question
regarding service and filing of Credico’s Rule 1925(b) statements, we retained
jurisdiction and remanded to the trial court to “enter an order determining whether a
Rule 1925(b) statement was properly filed and served” and, if necessary, “order
3
discovery, hold an evidentiary hearing, and/or enter findings of fact and conclusions
of law.” Id. at Order.
Upon remand, the trial court directed the prothonotary to file a signed affidavit
with respect to whether Credico properly filed and served a Rule 1925(b) statement.
(Dec. 6, 2019 trial court order, Original Record (O.R.) Item No. 46.) On December
31, 2019, the prothonotary filed an affidavit stating, in relevant part, that:
(1) Credico filed with the prothonotary a Rule 1925(b) statement on June 12, 2018;
and (2) in July 2018, the trial court judge received an apparently different Rule
1925(b) statement from Credico, which Credico did not file with the prothonotary.
(Dec. 31, 2019 Holliday Affidavit ¶¶ 15-16, 20-23.)
In response to the prothonotary’s affidavit, the trial court issued a rule to show
cause why it should not deem the affidavit sufficient to satisfy this Court’s Order in
Credico I. (Jan. 14, 2020 trial court order, O.R. Item No. 51.) The trial court directed
Credico “to appear before the [trial c]ourt to show cause on January 21 st, 20[20]
. . . .” (Id.)
As directed, Credico appeared before the trial court on January 21, 2020.
During the hearing, Credico stated that he could not obtain a time-stamped copy of
either the June 1925(b) Statement or the July 1925(b) Statement while incarcerated,
and prison officials at Allenwood Correctional Facility, where Credico was
incarcerated at the time, would not provide him with mail delivery logs. (Hearing
Transcript at 7, 18.) However, Credico stated that he had a “specific recollection”
that he separately mailed the Rule 1925(b) statements to the prothonotary and trial
court in separate envelopes. (Id. at 17-18.) Credico acknowledged that the
certificate of service attached to the July 1925(b) statement did not indicate Credico
filed it with the prothonotary, stating:
4
Right. But I’m telling you I sent it. And the one before that there was
evidence showing I did send it to [the prothonotary] because they [sic]
received it and you said I didn’t get it. And then when you do get yours
and go back to theirs [sic] in the record, they’re not the same.
(Id. at 16.) When the trial court asked Credico why he did not file the July Rule
1925(b) Statement with the prothonotary, Credico again responded that he did –
“[t]hat’s why [the prothonotary] got the one before that, but you didn’t for some
reason.” (Id. at 20.)
On January 27, 2020, based on the evidentiary hearing and the prothonotary’s
affidavit, the trial court issued an order finding that Credico did not file of record a
Rule 1925(b) statement. (January 27, 2020 trial court order.) The trial court noted
that, during the evidentiary hearing, the trial court entered of record Credico’s Rule
1925(b) statement that was “time stamped and received in chambers on July 5,
2018.” (Id. at 1 n.4.) The trial court identified that Rule 1925(b) statement as an
“original document which, according to the [c]ertificate of [s]ervice attached as well
as the envelope attached, clearly was not filed but rather sent only to [the trial
court’s] chambers.” (Id.) In addition, the trial court stated that the “only evidence
of record that this [Rule 1925(b) s]tatement was sent to the [p]rothonotary is
[Credico’s] statement at the evidentiary hearing, which th[e trial c]ourt did not find
persuasive.” (Id.) The trial court found that Credico “offered no copy of a certificate
of service, no prison mailing log . . . , no certificate of mailing[,] and no time stamped
copy.” (Id.) Accordingly, the trial court requested that this appeal be quashed. (Id.
at 1.)
As we stated in Credico I:
It is a bright-line rule that in order for litigants to preserve claims on
appeal, they must comply with a trial court order to file a Rule 1925(b)
statement. See Commonwealth v. Schofield, 888 A.2d 771, 774 (Pa.
5
2005). This strict application of Rule 1925 may be harsh, but non-
compliance with Rule 1925 “results in the inability of the appellate
courts to determine which issues were presented to the trial court, and
thus preserved for appeal . . . .” Id. Rule 1925(b) provides:
(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”).
(1) Filing and service.--Appellant shall file of record the
Statement and concurrently shall serve the judge. Filing
of record and service on the judge shall be in person or by
mail as provided in [Pennsylvania Rule of Appellate
Procedure 121(a),] Pa.R.A.P. 121(a) and shall be complete
on mailing if appellant obtains a United States Postal
Service Form 3817, Certificate of Mailing, or other similar
United States Postal Service form from which the date of
deposit can be verified in compliance with the
requirements set forth in Pa.R.A.P. 1112(c). Service on
parties shall be concurrent with filing and shall be by any
means of service specified under Pa.R.A.P. 121(c).
Pa.R.A.P. 1925(b).[1]
Credico I, slip op. at 8.
We further explained in Credico I that precedent is well established that a
party “must [both] file and serve a Rule 1925(b) statement in order to preserve any
issues on appeal.” Id. at 9 (emphasis added and in original) (citing Egan v.
1
Following Credico’s appeal, Rule 1925(b)(1) was amended, effective October 1, 2019.
Previously, the rule specified that “service [of a Rule 1925(b) statement] on the judge shall be in
person or by mail as provided by Rule of Appellate Procedure 121(a).” Former Pa.R.A.P.
1925(b)(1). Now, service on the judge “shall be at the location specified in the order [giving rise
to the notice of appeal], and shall be either in person, by mail, or by any other means specified in
the order [giving rise to the notice of appeal].” Pa.R.A.P. 1925(b)(1).
6
Stroudsburg Sch. Dist., 928 A.2d 400, 402 (Pa. Cmwlth. 2007); Everett Cash Mut.
Ins. Co. v. T.H.E. Ins. Co., 804 A.2d 31, 34 (Pa. Super. 2002)).2 The trial court found
that there is no credited evidence of record that Credico both filed and served a Rule
1925(b) statement. To the extent Credico testified that he both filed and served the
statement, the trial court found such testimony not persuasive. We cannot disturb
the trial court findings because, as fact-finder, the trial court maintains exclusive
province over matters involving the credibility of witnesses and the weight afforded
to the evidence. City of Philadelphia v. Urban Mkt. Dev., Inc., 48 A.3d 520, 524
(Pa. Cmwlth. 2012). The trial court “may accept or reject the testimony of any
witness in whole or in part,” and the trial court’s “credibility determinations cannot
be disturbed on appeal.” Finney v. Dep’t of Transp., Bureau of Driver Licensing,
721 A.2d 420, 423 (Pa. Cmwlth. 1998).
Accordingly, because the trial court found that Credico failed to file and serve
a Rule 1925(b) statement, we hold that Credico has not preserved any issue for our
review and, accordingly, affirm the trial court’s June 2018 Order.3
_____________________________________
RENÉE COHN JUBELIRER, Judge
Judge Fizzano Cannon did not participate in the decision of this case.
2
Although not binding on this Court, Superior Court decisions “offer persuasive precedent
where they address analogous issues.” Lerch v. Unemployment Comp. Bd. of Rev., 180 A.3d 545,
551 (Pa. Cmwlth. 2018).
3
When issues are waived on appeal because an appellant failed to preserve them, a court
should affirm rather than quash the appeal; quashing is appropriate for lack of jurisdiction. See In
re K.L.S., 934 A.2d 1244, 1246 n.3 (Pa. 2007).
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Justin Credico :
Appellant :
:
v. : No. 1459 C.D. 2018
:
Commonwealth of Pennsylvania, :
Chester County Adult Probation/Parole, :
Unknown Official of Adult Probation, :
Chester County District Attorney’s :
Office, Unknown DA of Chester :
County, Chester County Hospital, :
Unknown Official of PA State Health :
Department, Unknown Chester County :
Hospital Nurse, United States Health :
and Human Services, Unknown FBI :
Agents of Philadelphia, Unknown FBI :
Agents of Newtown Square, Chester :
County, Delaware County, Delaware :
County Probation/Parole, Unknown :
Officials of Delaware County Probation, :
Delaware County District Attorney’s :
Office, Unknown DA of :
Delaware County, J. Phyllis Streitel, :
Chester County Prison, Unknown :
Official of Chester County Prison, :
John & Jane Does, United States, :
Unknown Chester County Prison :
Official, Unknown Chester County :
Prison Mental Health Officials, :
Ziggler, Yanazelli, et al., Unknowns, :
Unknown Prime Care Medical Officials :
ORDER
NOW, February 10, 2021, the June 1, 2018 Order of the Court of Common
Pleas of Chester County is hereby AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge