Com. v. Brooks, L. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
LEWIS BROOKS, :
:
Appellant : No. 2242 EDA 2014
Appeal from the Judgment of Sentence June 17, 2014
in the Court of Common Pleas of Philadelphia County,
Criminal Division, No(s): CP-51-CR-0014184-2012;
MC-51-CR-0036240-2012
BEFORE: GANTMAN, P.J., MOULTON and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 23, 2016
Lewis Brooks (“Brooks”) appeals from the judgment of sentence
imposed following his convictions of aggravated assault, possessing an
instrument of crime, simple assault and recklessly endangering another
person.1 We affirm.
The trial court concisely set forth the relevant facts as follows:
On September 5, 2012, the complaining witness, [Keith]
Johnson [(“Johnson”),] was driving in the area of 58th and Willow
[Streets] in Philadelphia. At that location, [Johnson] observed
[Brooks] driving a red Chevy Blazer.[FN] Both men had a heated
exchange of words[,] and [Brooks] told [Johnson] to follow him,
which he did. After a short period of time, [Johnson] turned off
from following [Brooks] and instead went to a client’s house on
Florence [Avenue]. As he exited his truck, [Johnson] observed
[Brooks] driving straight towards him in his vehicle. [Brooks]
struck [Johnson] with his vehicle, causing [Johnson] to impact
the windshield. [Johnson] was hospitalized for two months and
suffered multiple fractures to his legs and scarring on his head.
1
18 Pa.C.S.A. §§ 2702(a)(1), 907(a), 2701(a), 2705.
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[FN]
[Johnson] and [Brooks] were having some animosity before
this incident due to the fact that [Johnson] was the former
paramour of [Brooks’s] wife.
Trial Court Opinion, 6/23/15, at 2 (internal citations omitted).
Following a bench trial, Brooks was convicted of the above-mentioned
crimes. The trial court deferred sentencing and ordered a pre-sentence
investigation report. On June 17, 2014, the trial court sentenced Brooks to
an aggregate term of 6 to 12 years in prison.
Brooks filed a pro se Motion for Reconsideration, which the trial court
denied. Brooks filed a Notice of Appeal, and the trial court ordered Brooks
to file a Pa.R.A.P. 1925(b) Concise Statement. Brooks’s counsel did not
respond to the Order, and the trial court subsequently appointed Brooks new
counsel. On March 18, 2015, the trial court issued a new Order directing
Brooks to file a Concise Statement within 21 days. However, Brooks,
through counsel, did not file his Concise Statement until May 12, 2015.2
Nevertheless, the trial court accepted Brooks’s Concise Statement and
addressed his claims in its Opinion.
On appeal, Brooks raises the following issue for our review: “Did the
court commit error by convicting [Brooks] of the charges[,] where the
evidence at trial was insufficient to [] disprove beyond a reasonable doubt
2
The trial court’s Order complied with the requirements of Rule 1925(b),
and was properly served on Brooks’s counsel pursuant to Pa.R.Crim.P. 114.
Additionally, there is nothing in the record to suggest that Brooks sought an
extension of time for filing his Concise Statement.
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that [Brooks] acted in self[-]defense?” Brief for Appellant at 2.
Before addressing the merits of Brooks’s claims, we must determine
whether Brooks has properly preserved this issue for our review, as required
by Pa.R.A.P. 1925(b). In Commonwealth v. Lord, 719 A.2d 306 (Pa.
1998), the Pennsylvania Supreme Court declared that “in order to preserve
their claims for appellate review, [a]ppellants 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.” Lord, 719 at 309; see also Pa.R.A.P.
1925(b)(4)(vii) (providing that “[i]ssues … not raised in accordance with the
provisions of this paragraph (b)(4) are waived.”).3 This Court, sitting en
banc, recently reconsidered the issue, and held that, following the Supreme
Court’s decisions in Castillo and Schofield,
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
3
Following the Supreme Court’s decision in Lord, this Court briefly allowed
the discretionary review of appeals where the trial court accepted an
untimely Rule 1925(b) statement and addressed the issues raised in its Rule
1925(b) opinion. See Commonwealth v. Aslop, 799 A.2d 129 (Pa. Super.
2002); Commonwealth v. Ortiz, 745 A.2d 662 (Pa. Super. 2000).
However, the Supreme Court specifically disapproved of this exception, and
re-affirmed Lord’s bright-line rule. See Commonwealth v. Castillo, 888
A.2d 775, 780 (Pa. 2005); see also Commonwealth v. Schofield, 888
A.2d 771, 774 (Pa. 2005) (stating that “failure to comply with the minimal
requirements of Pa.R.A.P. 1925(b) will result in automatic waiver of the
issues raised.”).
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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, 225 (Pa. Super. 2014) (en banc) (internal citations and quotation
marks omitted). Therefore, because Brooks’s Rule 1925(b) Concise
Statement was untimely filed, his claim is waived. See id. at 227(concluding that the appellant’s issues were waived for failure to file a timely
Rule 1925(b) statement).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/23/2016
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