Com. v. Duncan, M. ( 2014 )

J-A19001-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL J. DUNCAN,
Appellant No. 541 WDA 2012
Appeal from the Judgment of Sentence Entered March 2, 2012
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0000357-2011
BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 30, 2014
Appellant, Michael J. Duncan, appeals from his sentence of life
imprisonment1 imposed following his conviction for first degree murder and
criminal conspiracy. Appellant presents numerous questions for our review.
However, we conclude that Appellant has waived all his claims due to his
failure to comply with Pa.R.A.P. 1925(b)(4). Accordingly, we affirm.
The trial court summarized the facts adduced at trial as follows:
John Lynn Newman (“Newman”) was shot to death on
February 3, 2003, in California, Pennsylvania. On January 24,
2012, a jury found that Newman’s death was the result of a
conspiracy and/or solicitation between John Ira Bronson, Jr.
(“Bronson”) … and his co-defendant at trial, [Appellant]. Any
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
Appellant was also sentenced to a consecutive term of 15–30 years’
incarceration.
J-A19001-14
complete summary of the facts for the intervening nine years
must begin with the circumstances that led to this conspiracy
and/or solicitation.
In 2002, Newman was approached by the PSP [(Pennsylvania
State Police)] and informed “that he had been investigated and
[that] felony drug charges against him [were] pending.” In
October of that year, Trooper Aaron Borello (“Trooper Borello”)
approached Newman about becoming a confidential informant
(“C.I.”) for the PSP. Trooper Borello and Newman then set
about performing a buy/bust involving Newman’s supplier,
Bronson. After Bronson was observed selling 200 pills of
Oxycodone to Newman, he was arrested. The PSP searched
Bronson’s home and found about $384,000 in cash which was
seized.1
__________
1
Bronson eventually pled guilty to drug trafficking and was
incarcerated.
__________
After his arrest, Bronson began acting as a C.I., first with the
PSP and then for the Federal Bureau of Investigation (“F.B.I.”).
While working with the PSP, Bronson asked Trooper Borello
directly if it was Newman who had informed on him.
Unfortunately, Bronson’s participation as a C.I. was fruitless and
ended “within a week” prior to Newman's death.
At some point after Bronson’s arrest, [Appellant] spoke with
his associate, Howard Irwin (“Irwin”), about another man,
“[Michael] Bowman (“Bowman”), having some type of hookup
where he [could] make some money … taking care of [an
unnamed] snitch.” Irwin then witnessed, at his home, a meeting
between [Appellant], Bronson, and Bowman, a drug dealer and
associate of Bronson. During the meeting, Bronson asked
[Appellant] to kill Newman and [Appellant] agreed. Bronson
asked Bowman to cooperate in the killing, but Bowman declined.
Prior to Newman's death, Robert Bedner (“Bedner”) called
Brian Dzurco (“Dzurco”). Phone records revealed that the call
occurred on January 20, 2003, about two weeks before the
death of the victim. Bedner put Bronson on the phone with
Dzurco, who asked Dzurco to set up a meeting with Newman.
Dzurco agreed because he believed the matter to be related to a
drug debt. After receiving information that the meeting might
-2-
J-A19001-14
be fatal for Newman, Dzurco chose not to arrange it. Shawn
Geletei (“Geletei”) testified that, while in jail, [Appellant]
approached him and bragged about his intention to murder
Newman. He recalled that the conversation was prior to
Newman's death. Geletei specifically testified:
[Appellant] come over and asked if I knew Newman. I
said, yeah. He says, I'm going to take his ass out. And he
started saying something about Bronson and drugs and all
this. I said, I'm only in here [in jail] for child support, I
don't want to get involved in this. And he kept on running
his mouth saying about him being a monster and taking
people out before and all this.
Through phone records and witness testimony, the following
timeline of February 3, 2003, being the day of the killing, was
revealed:
At 7:32 p.m.[,] a call was made from Newman's cell phone to
Brian Horner (“Horner”), which lasted 3 minutes and 19 seconds.
Sometime before 8:00 p.m.[,] Newman asked his wife for
$300.00, ostensibly for cartons of cigarettes, but was, most
likely, to buy heroin. At 7:56 p.m.[,] a call was made from
Newman's cell phone to Horner, which lasted 1 minute and 9
seconds. Sometime after receiving the money, Newman left the
house. He met Geletei in the alley between their houses to
discuss acquiring Oxycodone. Geletei told Newman that he could
not locate any Oxycodone. Newman told Geletei that he was
going to meet Horner.
Upon returning home, Newman informed his wife that Horner
needed a ride and he left again. At 8:08 p.m.[,] Newman called
a drug client named Amelia Pajerski (“Pajerski”). At
approximately 8:30 p.m.[,] Newman sold Pajerski stamp bags of
heroin. He told Pajerski that the heroin was from Horner.
Pajerski specifically recalled being home in time to watch a
favorite show by 9:05 p.m. At approximately 9:00 p.m.[,]
Newman's daughter heard the distinctive sound of her father's
car pass by their house. At 9:03 p.m.[,] Newman called
Geletei's landline, which lasted for 6 seconds. Thereafter,
Newman was killed by a bullet fired at close range while he was
sitting in his car, which was parked down the street from his
home.
Next, the record reveals the events of February 4, 2003, as
follows: Early in the morning, Newman's daughter noticed his car
-3-
J-A19001-14
parked down the street from their house. She observed her
father inside the car, but the car door was locked. Upon
returning to the car with Mrs. Newman, they found the victim
dead and contacted the authorities. The police searched the
scene and located a spent bullet casing inside the car, and an
unfired cartridge outside of the vehicle. Newman had $115.00 in
cash, a marijuana “roach”, a cell phone, and ten packets of
heroin. Around 12:00 p.m.[,] Ryan Givens called [Appellant] to
inform him that Newman had been killed, to which [Appellant]
responded, “snitches get dealt with.” The authorities took
Horner in for questioning and tested his hands for gunshot
residue. The results allowed the tester to state “that [Horner]
could have fired a gun, could have come in contact with
something that had gunshot primer residue on it,” or “that
[Horner] was in very close proximity to a firearm when it was
discharged.”
It took several years for charges to be filed in this “cold
case[.”] The relevant events of the years are summarized
herein:
In March, 2003, Irwin asked [Appellant] to wire money to him
while on vacation. The money, being $931.00, was transferred
on March 10, 2003. Also in early March, [Appellant] appeared
early one morning at the home of his drug associate, Gerald Hull
(“Hull”). Hull’s home was used to cook and store crack cocaine.
[Appellant] opened a safe located within the Hull residence, to
which only he and Irwin had access. At that time, [Appellant]
was heard making a call. The exact nature of the call was
unclear. However, Hull, who was admittedly high on crack at the
time, recalled hearing [Appellant] speak about shooting
someone. [Appellant], who appeared “giddy, nervous, [and]
agitated,” pointed a gun in Hull's face before leaving.
When Irwin later returned from vacation, he discovered that
[Appellant] had “disappeared[.”] Irwin f[ound] that the safe had
been emptied. The safe’s contents, being money, drugs and a
nine millimeter (9 mm) pistol, were missing, and only a cell
phone was left behind.
In April of 2003, while on furlough, Bowman spoke with
[Appellant], who told Bowman that he killed Newman, and
explained the manner in which he did it. [Appellant] told
Bowman that he was in the rear of Newman's car and shot him
in the left ear. Between April and June of 2003, Bowman had a
-4-
J-A19001-14
three-way call with a woman and [Appellant]. Again, [Appellant]
admitted that he killed Newman.2
___________
2
The Court notes that the testimony regarding this call
was elicited from Bowman on cross-examination. Defense
counsel asked Bowman “you are saying … that [Appellant]
made a three-way call in a recorded jail call where he
goes, yeah, that's right, I killed that guy; is that what you
are saying to the jury?” Bowman answered "That’s exactly
what l’m telling the jury.”
___________
In September of 2003, PSP Trooper James Monkelis (“Trooper
Monkelis”) and Trooper Beverly Ashton (“Trooper Ashton”)
interviewed [Appellant]. He denied having ever been in
California, PA, and denied knowing Newman. When told of
Newman's death, [Appellant] said that he did not “whack” him,
despite not being told the nature of Newman's death.3
[Appellant] also identified Newman as a snitch. Newman's role
as a C.I. had not been released to the public. [Appellant] made
other inculpatory statements, such as:
1. Stating that “hypothetically” someone, implying
Newman, owed someone else, implying Bronson, a lot of
money.
2. Stating that he could not do the time and worrying that
he would rather not be 45, 46 or 46, 47 at the clubs.”
3. In response to the interviewer stating that it might have
been self-defense, he stated “come on, man, you seen that
crime scene, it couldn’t have been self[-]defense.”4
___________
3
The Court notes that it was public knowledge that
Newman had been killed.
4
The Court notes that no crime scene photos had been
released at the time of the interview.
___________
In late 2003, a former corrections officer, Eric DeLong
(“DeLong”), encountered [Appellant] in a bar. DeLong
overheard [Appellant] state, “yeah, I popped that guy in the
-5-
J-A19001-14
back of the head [in] California.” A few days later, DeLong
reported this incident to the PSP, who put him in touch with the
FBI. Despite this report, DeLong “didn’t hear anything for,
approximately, seven years.”
Approximately two and a half years after Irwin first
discovered that [Appellant] had fled California, PA, he finally
spoke to [Appellant]. When Irwin asked [Appellant] why he had
left California, PA, [Appellant] gave his reasons, admitting to
killing Newman and also to Horner’s involvement. [Appellant]
told Irwin that “Brian Horner was running [Appellant’s] name
about being involved in the homicide and [Horner] was actually
the one that ... brought [Newman] out [of] the house and …
brought him to the car. And [Appellant] was in the car and
[Appellant] whacked [Newman].” [Appellant] went on to tell
Irwin that he “whacked,” or killed, Newman because he was a
“snitch".
In January 2011, [Appellant] was arrested in Amherst, Ohio.
He was interviewed again by Trooper Monkelis[,] and again
made inculpatory statements. He stated that “snitches get dealt
with.” He stated that “he never owned or carried that caliber of
a weapon.”5 After the interview, [Appellant] was transported
back to Pennsylvania. [Appellant], while en route, spoke in
further detail about his views on snitches, saying that even “God
doesn't like snitches.”
In August of 2011, Bronson was housed in the Washington
County Correctional Facility ("WCCF") in connection with being
charged in this case. In December of 2011, Bronson admitted to
Michael McCarthy, a fellow inmate, that he attended the 2002
meeting with [Appellant] and Bowman at Irwin's house. He
admitted that the meeting concerned “offing[,”] or killing,
Newman. McCarthy then reported the conversation to the
authorities.
__________
5
The Court notes that the caliber of the weapon was never
released.
Trial Court Opinion (TCO), 3/26/13, at 3-8 (internal citations omitted).
The charges against Appellant were initiated by a Washington County
Grand Jury Presentment dated December 8, 2010. The Presentment
-6-
J-A19001-14
recommended that the Commonwealth charge Appellant, Bronson, and Irwin
for their participation in a conspiracy to kill Newman. On January 13, 2011,
the Commonwealth charged Appellant with first degree murder and criminal
conspiracy. Appellant filed numerous pre-trial motions on September 22,
2011, and the Commonwealth filed a motion to consolidate the three
pending cases against Appellant, Bronson, and Irwin on September 30,
2011. Following argument held on October 21, 2011, the trial court issued
an order on October 25, 2011, granting the Commonwealth’s motion to
consolidate. Following a hearing and argument held on October 27, 2011,
the trial court issued an order, dated October 31, 2012, denying and/or
granting all then-pending defense motions.2
Irwin reached an agreement with the Commonwealth prior to trial,
permitting him to plead guilty to a lesser charge in exchange for his
testimony against Appellant and Bronson. His plea was entered on
December 14, 2011. On January 11, 2012, a jury trial for Appellant and
Bronson commenced. The jury reached a verdict on January 24, 2012,
finding Appellant guilty of first degree murder and criminal conspiracy. On
March 2, 2012, the trial court sentenced Appellant to a mandatory term of
life imprisonment for first degree murder, and a consecutive term of 15-30
____________________________________________
2
Additional defense motions were filed on January 12, 2012, seeking
suppression of Appellant’s recorded statements. That motion was denied on
January 14, 2011.
-7-
J-A19001-14
years’ incarceration for criminal conspiracy. Appellant did not file any post-
sentence motions. He filed a timely notice of appeal on March 22, 2012.
The trial court ordered Appellant to file a Rule 1925(b) concise
statement of errors complained of on appeal (concise statement) on April 2,
2012. Appellant’s trial counsel was granted two continuances to file a
concise statement. Appellant’s counsel was then permitted to withdraw his
representation of Appellant by order dated August 22, 2012. In that same
order, the trial court appointed Jeffrey Watson, Esq., to file a Rule 1925(b)
statement and represent Appellant on appeal. On October 9, 2012, Attorney
Watson filed a 20-page concise statement, in which 57 claims were raised.
On January 2, 2013, the trial court issued an order permitting Attorney
Watson to withdraw as Appellant’s counsel as he had accepted a position as
an administrative law judge. In that same order, the trial court appointed
Mary Bates, Esq. to represent Appellant. On July 2, 2013, the trial court
also granted Attorney Bates leave to withdraw as Appellant’s counsel. In
that same order, the court appointed current counsel, Molly Maguire Gaussa,
Esq., to represent Appellant.
Attorney Bates filed a motion to withdraw as Appellant’s counsel with
this Court on June 6, 2014. For the reasons that follow, and because
Appellant has not been abandoned and is currently represented by Attorney
Gaussa, we hereby grant Attorney Bates’ motion to withdraw.
-8-
J-A19001-14
Attorney Bates is the third attorney to seek to withdraw from
representing Appellant since Appellant filed his notice of appeal. However,
only Attorney Bates, to her credit, has petitioned this Court for permission to
do so. The question arises, however, whether the trial court had
jurisdiction, after Appellant filed his notice of appeal, 1) to permit trial
counsel to withdraw; 2) to appoint Attorney Watson; 3) to permit Attorney
Watson to withdraw; 3) to appoint Attorney Bates; 4) to permit Attorney
Bates to withdraw; and 5) to appoint Attorney Gaussa. (Hereinafter, we
refer to these orders, collectively, as the “actions of the trial court.”) This is
because “[j]urisdiction is vested in the Superior Court upon the filing of a
timely notice of appeal.” Commonwealth v. Nahavandian, 954 A.2d 625,
629 (Pa. Super. 2008) (citing Commonwealth v. Miller, 715 A.2d 1203,
1205 (Pa. Super. 1998). Accordingly, Pa.R.A.P. 1701(a) dictates that
“[e]xcept as otherwise prescribed by these rules, after an appeal is taken or
review of a quasijudicial order is sought, the trial court or other government
unit may no longer proceed further in the matter.” Arguably, then, it could
be contended that the actions of the trial court were undertaken while
jurisdiction was lacking.
However, Section (b) of Rule 1701 provides exceptions to the rule set
forth in section (a) of Rule 1701. Section (b)(1) permits a trial court to take
such action as may be necessary to preserve the status quo,
correct formal errors in papers relating to the matter, cause the
record to be transcribed, approved, filed and transmitted, grant
leave to appeal in forma pauperis, grant supersedeas, and take
-9-
J-A19001-14
other action permitted or required by these rules or otherwise
ancillary to the appeal or petition for review proceeding.
Pa.R.A.P. 1701(b)(1).
Here, we believe the actions of the trial court were permissible
because they were “ancillary” to this appeal. See Pa.R.A.P. 1701(b)(1).
Notably, the orders of the trial court did not permit Appellant’s attorneys to
withdraw under circumstances where Appellant would have been left
unrepresented without further action on the part of Appellant or the court.
Furthermore, the reasons for the withdrawals did not relate to the claims for
which relief is sought. Conversely, when the withdrawal of counsel even
arguably implicates Anders v. California, 386 U.S. 738 (1967),
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v.
Finley, 550 A.2d 213 (Pa. 1988), and/or Commonwealth v. Grazier, 713
A.2d 81 (Pa. 1998), the withdrawal of counsel is not an ancillary matter and
the trial court is devoid of jurisdiction to permit withdrawal following the
filing of a notice of appeal. In such cases, the trial court must follow the
dictates of Anders, Turner/Finley, Grazier, related cases, and their
progeny.
We now turn to address the claims presented by Appellant. In his
brief, Appellant presents the following issues for our review:
1. The trial court erred when it considered the testimonial
evidence of numerous witnesses who lacked credibility,
reliability and the evidence was unsubstantiated; the
verdict of the jury is against the evidence when it
considered the testimony of the unreliable witnesses.
- 10 -
J-A19001-14
2. The trial court erred when it denied Defense counsels [sic]
numerous Motions for Suppression, Motion to Sever,
Motion in Liminie [sic], and Motion for a Mistrial.
3. The trial court erred in admitting irrelevant and unfairly
prejudicial evidence.
4. The Commonwealth did not present sufficient evidence to
sustain a conviction on all charges.
5. The trial court erred in allowing the Commonwealth to
present prior bad acts through witness testimony.
6. The trial court erred in allowing a non[-]redacted transcript
to be reviewed by the jury, thus causing a prejudicial
effect.
Appellant’s Brief at 8-9.
As a preliminary matter, we address the question of whether
Appellant’s concise statement complied with the dictates of Rule 1925(b).
Rule 1925(b) states, in pertinent part, as follows:
(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”).
…
(4) Requirements; waiver.
(i) The Statement shall set forth only those rulings or
errors that the appellant intends to challenge.
(ii) The Statement shall concisely identify each ruling or
error that the appellant intends to challenge with
sufficient detail to identify all pertinent issues for the
judge. The judge shall not require the citation to
authorities; however, appellant may choose to include
pertinent authorities in the Statement.
- 11 -
J-A19001-14
(iii) The judge shall not require appellant or appellee to
file a brief, memorandum of law, or response as part of
or in conjunction with the Statement.
(iv) The Statement should not be redundant or provide
lengthy explanations as to any error. Where non-
redundant, non-frivolous issues are set forth in an
appropriately concise manner, the number of errors
raised will not alone be grounds for finding waiver.
(v) Each error identified in the Statement will be
deemed to include every subsidiary issue contained
therein which was raised in the trial court; this provision
does not in any way limit the obligation of a criminal
appellant to delineate clearly the scope of claimed
constitutional errors on appeal.
(vi) If the appellant in a civil case cannot readily discern
the basis for the judge's decision, the appellant shall
preface the Statement with an explanation as to why
the Statement has identified the errors in only general
terms. In such a case, the generality of the Statement
will not be grounds for finding waiver.
(vii) Issues not included in the Statement and/or not
raised in accordance with the provisions of this
paragraph (b)(4) are waived.
Pa.R.A.P. 1925(b) (underlined emphasis added).
In Kanter v. Epstein, 866 A.2d 394 (Pa. Super. 2004), this Court
determined that the appellants waived all of the claims raised in their Rule
1925(b) statements “[b]y raising an outrageous number of issues.” Id. at
401. We explained:
The Defendants' failure to set forth the issues that they sought
to raise on appeal in a concise manner impeded the trial court’s
ability to prepare an opinion addressing the issues that the
Defendants sought to raise before this Court, thereby frustrating
this Court's ability to engage in a meaningful and effective
appellate review process. See Commonwealth v. Steadley,
748 A.2d 707, 709 (Pa. Super. 2000); see also
Commonwealth v. Kimble, 756 A.2d 78, 80 (Pa. Super. 2000).
- 12 -
J-A19001-14
By raising an outrageous number of issues, the Defendants have
deliberately circumvented the meaning and purpose of Rule
1925(b) and have thereby effectively precluded appellate review
of the issues they now seek to raise.
Id.This Court also found that the appellants waived all of the claims
raised in their Rule 1925(b) statement for similar reasons in Tucker v. R.M.
Tours, 939 A.2d 343 (Pa. Super. 2007). In that case, we explained:
In the case sub judice, we conclude [the a]ppellants have
engaged in misconduct when they “attempted to overwhelm the
trial court by filing [a] Rule 1925(b) Statement ... that contained
a multitude of issues that [Appellants] did not intend to raise
and/or could not raise before this Court.” Kanter, 866 A.2d at
402. Appellants' initial court-ordered Pa.R.A.P. 1925(b)
statement … consisted of sixteen pages, with seventy-six
paragraphs …, plus exhibits. Our review of the statement
reveals that [the a]ppellants raised a voluminous number of
lengthy issues, which created confusion for the trial court. We
conclude that this conduct on the part of [the a]ppellants
breaches their duty of good faith and fair dealing with the Court
and constitutes a course of misconduct which is designed to
“undermine the Rules of Appellate Procedure.” Id. Accordingly,
… we find [the a]ppellants' issues on appeal to be waived.
Tucker, 939 A.2d at 346-47.
In the present case, Appellant filed a Rule 1925(b) statement
containing 57 issues spanning approximately 20 pages. Many of the issues
raised therein contain multiple sub-parts and excessive explanations
regarding the alleged errors.3 Numerous other issues specify the nature of
____________________________________________
3
For instance, some of the claims contained in Appellant’s Rule 1925(b)
statement reached a full page in length:
(Footnote Continued Next Page)
- 13 -
J-A19001-14
_______________________
(Footnote Continued)
The trial court erred/abused its discretion in denying Defendant's
omnibus pretrial motion - Motion to Suppress Extra Judicial Oral
Statements as set forth in the written motion, where Troopers
Monkalis and Ashton went to Ohio to interview Defendant
Duncan and where a statement was alleged to have been given
by Defendant Duncan which was never videotaped, audiotaped
or reduced to writing, however Trooper Monkalis claims that he
took notes and admitted that the notes no longer existed and
the alleged notes of Corporal Ashton no longer existed. Trooper
Monkalis allegedly asked Defendant Duncan about the alleged
homicide and allegedly obtained incriminating responses. Said
extrajudicial statements should have been suppressed as there
was no evidence of a signed Miranda waiver form, Trooper
Monkalis was unable to provide a specific date as to when the
alleged interview took place other than giving a month and a
year, stating on cross-examination that he believed that possibly
might have occurred, and Trooper Monkalis claimed that there
was a written and executed Miranda waiver form then stated he
basically said Defendant would not sign anything, the 2
statements being in direct contradiction of each other. The
alleged statements and notes of Trooper Monkalis which have
been destroyed, are inherently unreliable and Trooper Monkalis
contradicted himself through direct and cross-examinations from
whether or not he took notes, to whether or not Corporal Ashton
took notes and to whether Michael Duncan, the Defendant, said
that the deceased was whacked as to hypothetically saying
someone owes someone a lot of money. Because of the myriad
of contradictions, the refusal to be [sic] Miranda, the law so
notes [sic], the inconsistencies of Trooper Monkalis[’] report and
the unexplainable loss of Corporal Ashton's notes, the inability to
know whether Corporal Ashton even took notes and the lack of
caution to audiotape, videotape or reduce in writing the alleged
interview indicates that the alleged statements lacked the
sufficient indicia of credibility to be used at the trial of this
matter. The alleged statements of Defendant Michael Duncan
are contaminated for all the above reasons and should not have
been allowed at the trial of this matter.
Appellant’s Concise Statement, 10/9/12, at ¶ 42.
- 14 -
J-A19001-14
the claim concisely but fail to identify pertinent information such as the
location in the record where the claim arose or the particular piece of
evidence being contested.4 Consequently, the trial court “strongly
considered applying the doctrine of waiver based on the number and
vagueness of issues presented in [Appellant’s Rule 1925(b) statement], but
decided to address the non-redundant, non-frivolous issues to the best of its
ability….” TCO, at 13 n.7.
Although the trial court declined to find waiver, we are not bound by
its determination in this regard. “[T]he issue of waiver based on a violation
of Rule 1925(b) is expressly reserved to the appellate courts, and not to the
trial courts.” Commonwealth v. Donahue, 630 A.2d 1238, 1242-43 (Pa.
Super. 1993). Here, we ascertain that Appellant’s disregard of both the
spirit and explicit text of Rule 1925(b)(4) is too egregious to be overlooked,
despite the trial court’s valiant efforts at tackling Appellant’s claims in its
Rule 1925(a) opinion. Accordingly, we conclude that all of the claims raised
in Appellant’s Rule 1925(b) statement have been waived for his failure to
comply with Rule 1925(b)(4), and we affirm his judgment of sentence on
____________________________________________
4
For example, in his concise statement, Appellant asserted that “[t]he trial
court erred/abused its discretion in denying the request for a jury instruction
regarding inflammatory photos charged under the circumstances based upon
the admission of the photographs introduced by the Commonwealth in this
case.” Appellant’s Concise Statement, 10/9/12, at ¶ 37. However,
Appellant’s allegation of error failed to specifically identify the contested
photographs, such as by listing the photographs’ exhibit numbers or simply
by describing them.
- 15 -
J-A19001-14
that basis.5 See Pa.R.A.P. 1925(b)(4)(vii) (“Issues … not raised in
accordance with the provisions of this paragraph (b)(4) are waived.”).
Judgment of sentence affirmed.
Judge Olson concurs in the result.
Justice Fitzgerald files a concurring statement in which Judge Olson
joins.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/30/2014
____________________________________________
5
Nevertheless, were we to reach the claims that Appellant raised in his brief
to this Court, we would affirm based upon the trial court’s well-reasoned
Rule 1925(a) opinion.
- 16 -