Com. v. Burrows, C. ( 2020 )

J-A25026-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
CATHY RENEE BURROWS : No. 143 MDA 2019
Appeal from the Order Entered January 17, 2019
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0001023-2018
BEFORE: STABILE, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED FEBRUARY 18, 2020
This case is before us on the grant of reconsideration. The
Commonwealth appealed from an order dismissing charges against Cathy
Renee Burrows as constituting de minimis infractions. See 18 Pa.C.S.A. §
312(a)(3).1 We initially dismissed the appeal because the Commonwealth did
not file a Pa.R.A.P. 1925(b) statement, even though the trial court ordered it
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1 Section 312(a)(3) provides:
(a) General rule. – The court shall dismiss a prosecution if,
having regard to the nature of the conduct charged to
constitute an offense and the nature of the attendant
circumstances, it finds that the conduct of the defendant:
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(3) presents such other extenuations that it cannot
reasonably be regarded as envisaged by the General
Assembly or other authority in forbidding the offense.
18 Pa.C.S.A. § 312(a)(3).
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to do so. See Judgment Order, filed 10/25/19. We explained that we disagreed
with the Commonwealth that Pa.R.A.P. 1925(c)(3) entitled it to a remand so
it could file a Rule 1925(b) statement.
The Commonwealth responded by filing a “Motion to Reinstate Appeal,”
arguing that we had overlooked Commonwealth v. Grohowski, 980 A.2d
113 (Pa.Super. 2009). According to the Commonwealth, Grohowski held that
Rule 1925(c)(3) applies to it in all cases to the same extent as it applies to
criminal defendants. We treated the Commonwealth’s motion as an application
for reconsideration and vacated our Judgment Order. See Order, filed
11/20/19. We conclude that Grohowski is distinguishable, and we therefore
again dismiss the Commonwealth’s appeal.
In Grohowski, the Commonwealth and the defendant filed cross-
appeals, and each filed its court-ordered Rule 1925(b) statement late. This
Court determined that the late filings did not constitute waiver by either party.
In support, we cited Rule 1925(c)(3), which “allows for remand ‘if an appellant’
in a criminal case was ordered to file a statement and did not do so.”
Grohowski, 980 A.2d at 115. We noted that we had held in Commonwealth
v. Burton, 973 A.2d 428 (Pa.Super. 2009) (en banc), that if counsel for a
criminal defendant files a Rule 1925(b) statement late, that constituted per se
ineffectiveness, and we would remand for the filing of a statement nunc pro
tunc. Id. at 114. We also pointed out that the text of Rule 1925(c)(3) did not
explicitly require that the “appellant” be the defendant in order for the rule to
apply. Id. at 115. We then stated that in “[f]airness and consistency,” if the
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defendant could file a late Rule 1925(b) statement, we would allow the
Commonwealth to do so as well. Id. We stated our holding as, “[W]e hold that
the rule enunciated in Burton … applies to the Commonwealth as well as to
the represented criminal defendant.” Id.
In Burton, defense counsel filed a court-ordered Rule 1925(b)
statement, albeit one day late. Burton, 973 A.2d at 430. We acknowledged
that Rule 1925(c)(3), as it then existed,2 allowed for a remand for the filing
of a statement if the appellant had not filed a statement at all, “such that the
appellate court is convinced that counsel has been per se ineffective.” Id. at
431. We noted the Explanatory Note to the Rule, which reviewed the history
of Rule 1925(c)(3) as the successor to a line of cases allowing for similar relief
where a criminal defendant has shown that counsel failed to file a Rule 1925(b)
statement and was therefore ineffective. Id. at 432. Concluding that a late
filing of a Rule 1925(b) statement is the equivalent of a complete failure to
file one, we held that the defendant was entitled to the benefit of Rule
1925(c)(3). Id. at 433.
This case does not present the equitable considerations found in
Grohowski that led us in that case to extend the benefit of Rule 1925(c)(3)
to the Commonwealth. We are not faced here with a situation where the
Commonwealth and the defendant are cross-appellants and both filed a Rule
1925(b) statement late. Rather, only the Commonwealth failed to comply with
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2 Since the time of Burton and Grohowski, the rule has been amended to
allow for relief for untimely statements.
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a Rule 1925(b) order. It therefore cannot be said that allowing one side to file
a nunc pro tunc statement, but not the other, violates notions of “fairness and
consistency.” We must not divorce the holding of Grohowski from the
conditions giving rise to our decision there. “[T]he axiom that decisions are to
be read against their facts prevents the wooden application of abstract
principles to circumstances in which different considerations may pertain.”
Maloney v. Valley Med. Facilities, Inc., 984 A.2d 478, 485-86 (Pa. 2009)
(citation omitted).
The Commonwealth does not cite any special consideration such as we
found in Grohowski or argue that Rule 1925(c)(3) is ambiguous. We
therefore have no warrant to apply the narrow holding of Grohowski to this
case or to deviate from the plain language of the rule.
Appeal dismissed.
Judge Musmanno joins the Memorandum.
Judge Stabile concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/18/2020
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