Com. v. Oliver, A. ( 2015 )

J-S68003-15
2015 Pa. Super. 261
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY EDWARD OLIVER
Appellant No. 629 EDA 2014
Appeal from the PCRA Order February 7, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0005530-2011
BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.
CONCURRING STATEMENT BY MUNDY, J.: FILED DECEMBER 14, 2015
Although I agree with the learned Majority that the PCRA courts’ order
must be affirmed, I reach this conclusion for different reasons. In my view,
Appellant waived all issues on appeal by failing to file, as ordered, a concise
statement of errors complained of on appeal pursuant to Pennsylvania Rule
of Appellate Procedure 1925(b). Therefore, I respectfully concur in the
result.
Our Supreme Court has held that Rule 1925(b) is a bright line rule.
Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011). The Hill Court was
clear that this Court “lack[s] the authority to countenance deviations from
the Rule’s terms [and] the Rule’s provisions are not subject to ad hoc
exceptions or selective enforcement[.]” Id. In my respectful view, the
Majority’s declining to apply Hill’s bright-line rule to this case represents an
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ad hoc exception to the Rule’s requirements. I also disagree with the
Majority’s conclusion that “[h]ad Appellant’s counsel been solely responsible
for the failure to file a Rule 1925(b) statement on Appellant’s behalf,
Appellant would have been entitled to a remand for the filing of a Rule
1925(b) statement under Rule 1925(c)(3)[.]” Majority Opinion at 5. The
Hill Court rejected the attempt to apply Rule 1925(c)(3) in the PCRA
context. Our Supreme Court noted the remand procedure in Rule
1925(c)(3) speaks of ineffective assistance of counsel in a “criminal case.”
Pa.R.A.P. 1925(c)(3). Therefore, because “the PCRA is civil in nature[,]” it
concluded that Rule 1925(c)(3) did not apply. Hill, supra at 495 n.14.
In this case, it is undisputed that Appellant did not file a Rule 1925(b)
statement, nor did he apply for an extension of time to file the same once
the PCRA court permitted Attorney Carluccio to withdraw as counsel. See
generally Majority Opinion at 4-5; Pa.R.A.P. 1925(b)(2) (stating, “[u]pon
application of the appellant and for good cause shown, the judge may
enlarge the time period initially specified or permit an amended or
supplemental Statement to be filed[]”). In my view, our Supreme Court’s
interpretation of Rule 1925 requires the conclusion, although harsh, that
Appellant has waived all issues on appeal for failure to take any steps to
comply with Rule 1925(b).
Based on the foregoing, I conclude that Appellant waived all issues on
appeal for want of compliance with Hill and Rule 1925(b). Accordingly, I
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would affirm the PCRA court’s order on that basis. I therefore respectfully
concur in the result only.
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