In the Interest of: J.S.Z., a Minor ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: : IN THE SUPERIOR COURT OF
J.S.Z., A MINOR : PENNSYLVANIA
:
APPEAL OF: : No. 1673 MDA 2017
COMMONWEALTH OF PENNSYLVANIA :
Appeal from the Order Entered October 12, 2017,
in the Court of Common Pleas of Lycoming County
Criminal Division at No. CP-41-JV-0000195-2017
BEFORE: LAZARUS, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 25, 2018
The Commonwealth appeals from the October 12, 2017 order entered
by the Court of Common Pleas of Lycoming County granting appellee’s motion
to suppress. After careful review, we remand to the trial court for the
Commonwealth to file a Rule 1925(b) statement nunc pro tunc.
The procedural history in this case is as follows: The trial court entered
an order granting appellee’s motion to suppress on October 12, 2017. On
October 26, 2017, the Commonwealth filed a notice of appeal to this court.
Pursuant to Pennsylvania Rule of Appellate Procedure 311(d), the
Commonwealth certified that the June 30, 2017 order would either terminate
or substantially handicap the prosecution. See Pa.R.A.P. 311(d) (permitting
the Commonwealth to appeal from an interlocutory order if it certifies that the
order will terminate or substantially handicap the prosecution). That same
day, the trial court ordered the Commonwealth to file a concise statement of
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errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) within 21 days
of the order’s being docketed. The trial court docketed the order on
October 27, 2017. On November 22, 2017, the trial court filed an opinion
pursuant to Pa.R.A.P. 1925(a) in which it stated that the Commonwealth failed
to timely file and serve its Rule 1925(b) statement, thereby waiving its issues
on appeal. On December 5, 2017, the Commonwealth filed an application for
remand with this court. In its brief to this court, the Commonwealth reiterates
its request to remand so that it may supplement the record with a
Rule 1925(b) statement because the Commonwealth’s counsel was
“admittedly ineffective.” (Commonwealth’s brief at 15, 24-25.) In the
alternative, the Commonwealth requests that we reach a decision on the
merits. (Id. at 26.)
Requests for remand due to failure to timely file a Rule 1925(b)
statement when ordered to do so by the trial court are governed by
Pennsylvania Rule of Appellate Procedure 1925(c)(3), which provides the
following:
If an appellant in a criminal case was ordered to file a
Statement and failed to do so, such that the appellate
court is convinced 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).
The Commonwealth relies upon this court’s decision in Commonwealth
v. Grohowski, 980 A.2d 113 (Pa.Super. 2009). The Grohowski court held
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that a remand to the trial court is the appropriate remedy for the late filing of
a Rule 1925(b) statement. Id. at 114-115. Specifically, this court stated:
Rule 1925(c)(3) allows for remand “if an appellant” in
a criminal case was ordered to file a statement and
did not do so. There is no requirement set forth in the
Rule that the appealing party must be the defendant
in order to apply the Rule. Furthermore, we refuse to
read such a requirement into the Rule. Fairness and
consistency require that each side be treated the
same so that if we are to permit the late filing of the
1925(b) statement for one of the parties, i.e., the
Defendant, we must permit the late filing of the
1925(b) statement for the other side, i.e., the
Commonwealth.
Id. The Grohowski court further opined:
Allowing a late filing by the Commonwealth does not
thwart the purpose of the Rule; but rather, allowing
such filing promotes the purpose of the amendment
to Rule 1925(b). For example, the Rule was amended
in order to extend the time period for filing and to
excuse late filings under the proper circumstances.
The rule was not amended in order to favor one party
over another party when there is a late filing of the
Rule 1925(b) statement.
Id. at 114.
Accordingly, we are constrained to remand this case to the trial court
for the Commonwealth to file a Rule 1925(b) statement nunc pro tunc and
for the trial court to amend its Rule 1925(a) opinion.1
1 While we find Judge Klein’s dissent in Grohowski to be persuasive, see
Grohowski, 980 A.2d at 117, we are bound by the majority opinion. See
Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa.Super. 2006) (“It is beyond
the power of a Superior Court panel to overrule a prior decision by the Superior
Court, except in circumstances where intervening authority by our Supreme
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The Commonwealth’s application for remand is granted. Case
remanded. Jurisdiction retained.
Court calls into question a previous decision of this Court.” (citations
omitted)).
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