Com. v. Birster, M. ( 2020 )

J-A22043-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
MARISSA DIANE BIRSTER
Appellant No. 468 MDA 2020
Appeal from the Judgment of Sentence entered February 7, 2020
In the Court of Common Pleas of Northumberland County
Criminal Division at No: CP-49-CR-0001088-2019
BEFORE: SHOGAN, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY STABILE, J.: FILED: OCTOBER 30, 2020
Appellant, Marissa Diane Birster, appeals from the judgment of sentence
imposed on February 7, 2020, in the Court of Common Pleas of
Northumberland County. For the reasons set forth below, we remand.
At the conclusion of a revocation of probation hearing conducted on
February 7, 2020, the trial court determined Appellant violated her
supervision. With respect to her conviction for endangering the welfare of
children (“EWOC”), the court revoked her probation and resentenced her to a
term of two years plus one day to four years in a state correctional institution,
with credit for time served. With regard to her conviction for possession of a
controlled substance, the court revoked Appellant’s probation and resentenced
her to a county sentence of three to six months in the Northumberland County
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Jail, concurrent with her EWOC sentence.1 The court announced that
Appellant could be paroled immediately on the state sentence for EWOC.
Appellant filed a motion for reconsideration of sentence on February 10,
2020, arguing, inter alia, that the trial court improperly permitted hearsay
testimony of Probation Officer Kasey Fisher in violation of Appellant’s
Confrontation Clause rights. The testimony at issue related to Appellant’s
alleged conversations with her own probation officer, Matt Naracavage, who
was unavailable to testify at the hearing because he was on paternity leave.
Motion for Reconsideration of Sentence, 2/10/20, at ¶¶ 7-17. Appellant also
complained that she was resentenced without being afforded the right of
allocution. Id. at ¶¶ 18-22. By order entered on February 12, 2020, the trial
court denied the motion. Appellant’s counsel, Jerry Grill, Esquire, of the
Northumberland County Public Defender’s Office, filed a timely appeal. On
March 26, 2020, Attorney Grill filed a Criminal Docketing Statement with this
Court.
On March 30, 2020, the trial court ordered Appellant to file a Rule
1925(b) concise statement of errors complained of on appeal within 21 days
of the order. The order provided that “[a]ny issue not properly included in
the Statement . . . shall be deemed waived for purposes of the appeal.” Order,
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1The possession charges were filed under a separate Northumberland County
docket number, CR-1090-2019. Appellant did not pursue an appeal to this
Court from that conviction.
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3/30/20, at 1 (footnote omitted). The order was served on Attorney Grill, as
reflected on the docket. However, no Rule 1925(b) statement was filed on
Appellant’s behalf. On April 30, 2020, the trial court entered an order
indicating it would not issue a Rule 1925(a) opinion “because no statement
[was] filed within the allotted time.” Order, 4/30/20, at 1.
On May 18, 2020, this Court issued a briefing schedule, directing that
Appellant file her brief on or before June 26, 2020. The schedule was served
on counsel for the Commonwealth and on Michael D. Suders, Esquire, of the
Northumberland County Public Defender’s Office, who is listed as counsel of
record for Appellant on this Court’s docket.
Appellant filed a brief in accordance with the schedule and asks this
Court to consider three issues:
A. Whether the probation officer notes are admissible under the
business records exception to the hearsay rule?
B. Whether [Appellant] has a right to speak at a revocation
hearing?
C. Whether the Superior Court must dismiss this case given the
failure of hearing counsel to file a concise statement of matters
on appeal?
Appellant’s Brief at 6.
With regard to the third issue, Appellant attempts to explain her failure
to file a concise statement. Specifically, in her Statement of the Case,
Appellant suggests that a COVID-19 Emergency Order signed by
Northumberland County President Judge Charles H. Saylor on March 18, 2020,
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“extend[ed] all deadlines.” Appellant’s Brief at 7. 2 Appellant further notes
that after filing a docketing statement with this Court, “[t]he defense attorney
sent a resignation letter on March 25, 2020.” Id.3 Appellant acknowledges
the trial court’s March 30, 2020 order directing the filing of a Rule 1925(b)
statement, but notes that President Judge Saylor issued an order on April 2,
2020, extending judicial emergency procedures until April 30, 2020. Id. at 8.
In the argument section of the brief, Appellant suggests that because
“there was no effective notice [to file a Rule 1925(b) statement] demonstrated
on the record given the resignation of hearing counsel and outside the
President Judge[’s] Emergency Orders that extended to April 30 2020, the
case should be remanded for a new hearing or opportunity to file” a Rule
1925(b) statement. Id. at 15. While remand is necessary, we do not base
remand on Appellant’s reasoning.
First, even if counsel who filed the appeal did resign, it is clear Appellant
was represented at all times by the Northumberland Public Defender’s Office.
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2 The order, in fact, did not “extend[] all deadlines.” The March 18, 2020
order provided, in relevant part, that “the court is authorized to suspend time
calculations for the purpose of trial computation relevant to court cases or
other judicial business, as well as time deadlines, subject to constitutional
restrictions.” Order, 3/18/20, at ¶ 1 (some capitalization omitted).
3The March 25, 2020 letter is not part of the record in this case. Regardless,
even if Attorney Grill resigned from the Public Defender’s Office, there is no
suggestion that the Defender’s Office sought leave to withdraw as Appellant’s
counsel.
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It was incumbent on that office to comply with the trial court’s Rule 1925(b)
directive. Second, the trial court issued two emergency orders on March 18,
2020, one that authorized the court to suspend time calculations for, inter
alia, deadlines,4 and another that postponed certain proceedings. Although
the court was authorized to extend deadlines, the trial court nevertheless
issued an order on March 30, 2020, directing Appellant to file a Rule 1925(b)
statement within 21 days of the order. The President Judge’s April 3, 2020
emergency order extended the judicial emergency through April 30, 2020, and
cancelled the May 2020 term of criminal court. However, the order had no
impact on the trial court’s March 30, 2020 order directing Appellant to file a
Rule 1925(b) statement.
As our Supreme Court reiterated in Commonwealth v. Hill, 16 A.3d
484 (Pa. 2011):
Our jurisprudence is clear and well-settled, and firmly establishes
that: Rule 1925(b) sets out a simple bright-line rule, which
obligates an appellant to file and serve a Rule 1925(b) statement,
when so ordered; any issues not raised in a Rule 1925(b)
statement will be deemed waived; the courts lack the authority to
countenance deviations from the Rule’s terms; the Rule’s
provisions are not subject to ad hoc exceptions or selective
enforcement; appellants and their counsel are responsible for
complying with the Rule’s requirements; Rule 1925 violations may
be raised by the appellate court sua sponte, and the Rule applies
notwithstanding an appellee’s request not to enforce it; and, if
Rule 1925 is not clear as to what is required of an appellant, on-
the-record actions taken by the appellant aimed at compliance
may satisfy the Rule. We yet again repeat the principle first stated
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4 See n.1.
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in [Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998),] that
must be applied here: “[I]n 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 Pa.R.A.P. 1925. Any issues not raised in a
Pa.R.A.P. 1925(b) statement will be deemed waived.” 719 A.2d
at 309.
Id. at 494 (footnote omitted). Here, in accordance with our Supreme Court’s
directive in Hill, Appellant’s failure to file a Rule 1925(b) statement results in
the waiver of all issues on appeal.
However, we are also cognizant that Rule 1925(c)(3) provides:
If an appellant represented by counsel 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, and the trial court did not file an opinion, the appellate
court may remand for appointment of new counsel, the filing of a
Statement nunc pro tunc, and the preparation and filing of an
opinion by the judge.
Pa.R.A.P. 1925(c)(3).
In Commonwealth v. Thompson, 39 A.3d 335 (Pa. Super. 2012), this
Court explained:
Paragraph (c)(3) of Rule 1925 codifies the procedure established
by this Court in Commonwealth v. West, 883 A.2d 654 (Pa.
Super. 2005). Note to Pa.R.A.P. 1925; see Commonwealth v.
Hill, 16 A.3d 484, 496 n. 15 (Pa. 2011). “Direct appeal rights
have typically been restored through a post-conviction relief
process, but when the ineffectiveness is apparent and per se, the
court in West recognized that the more effective way to resolve
such per se ineffectiveness is to remand for the filing of a
Statement and opinion.” Note to Pa.R.A.P. 1925; see West,
supra at 657.
Id. at 339.
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Appellant was represented by counsel. Appellant was ordered to file a
Rule 1925(b) statement and failed to do so, leading us to conclude her counsel
was per se ineffective.5 Further, the trial court did not file a Rule 1925(a)
opinion due to Appellant’s failure to file a Rule 1925(b) statement. Under
these circumstances, and as authorized by Rule 1925(c)(3), we therefore
remand to the trial court for appointment of new counsel, the filing of a Rule
1925(b) statement nunc pro tunc, and the issuance of a Rule 1925(a) opinion.
Case remanded for further proceedings in accordance with this
Memorandum. Jurisdiction retained.
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5This Court has recognized that “[t]he complete failure to file the 1925 concise
statement is per se ineffectiveness because it is without reasonable basis
designed to effectuate the client’s interest and waives all issues on appeal.”
Commonwealth v. Burton, 973 A.2d 428, 432 (Pa. Super. 2009) (en banc).
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