Com. v. Simon, T.

J-S53034-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TYUAN SIMON :
:
Appellant : No. 3204 EDA 2017
Appeal from the PCRA Order September 12, 2017
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0007840-2012
BEFORE: GANTMAN, P.J., OTT, J., and PLATT*, J.
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 03, 2018
Appellant, Tyuan Simon, appeals from the order entered in the
Montgomery County Court of Common Pleas, which denied Appellant’s first
petition brought under the Post Conviction Relief Act (“PCRA”).1 For the
following reasons, we remand for further proceedings.
The relevant facts and procedural history of this case are as follows.
During a grand jury hearing on July 18, 2012, Christopher Carbone testified
another prison inmate had told Mr. Carbone that Appellant had hired the
inmate to kill Victim. Subsequently, the Commonwealth charged Appellant
with first-degree murder and related offenses arising out of the shooting death
of Victim. Appellant proceeded to a multi-day jury trial on June 24, 2013. At
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1 42 Pa.C.S.A. §§ 9541-9546.
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* Retired Senior Judge assigned to the Superior Court.
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trial, Mr. Carbone recanted his grand jury testimony, indicating, inter alia: (i)
his attorney had coerced him to testify at the grand jury hearing, because he
led Mr. Carbone to believe the Commonwealth would pursue a lesser sentence
against Mr. Carbone in his pending criminal case if he testified; and (ii) after
the grand jury hearing, someone had threatened to harm Mr. Carbone and his
family if he testified against Appellant at trial. On June 27, 2013, a jury
convicted Appellant of first-degree murder, solicitation to commit murder, and
conspiracy to commit murder. The court sentenced Appellant on September
20, 2013, to life without the opportunity of parole (“LWOP”). This Court
affirmed the judgment of sentence on December 12, 2014, and our Supreme
Court denied allowance of appeal on May 13, 2015. See Commonwealth v.
Simon, 116 A.3d 686 (Pa.Super. 2014) (unpublished memorandum), appeal
denied, 632 Pa. 662, 116 A.3d 604 (2015).
On May 3, 2016, Appellant timely filed his first and current pro se PCRA
petition. Appellant subsequently retained PCRA counsel. Appellant filed an
amended PCRA petition on May 4, 2017, and a supplemental PCRA petition on
July 25, 2017, in which Appellant raised claims of ineffective assistance of trial
and appellate counsel. On August 7, 2017, the PCRA court issued Rule 907
notice. On August 17, 2017, Appellant filed a “Motion to Continue,” requesting
the court to allow Appellant additional time to obtain an affidavit from Mr.
Carbone recanting his trial testimony. The court denied Appellant’s motion on
August 18, 2017. The court, however, allowed Appellant to present an after-
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discovered evidence claim in his response to the Rule 907 notice and extended
the time for filing a Rule 907 notice response. On September 11, 2017,
Appellant filed a response to Rule 907 notice. In the September 11 th filing,
Appellant alleged Mr. Carbone recanted his trial testimony that he had been
threatened or coerced to retract his grand jury testimony. Appellant appended
to his September 11th filing an affidavit of Mr. Carbone, recanting his trial
testimony. On September 13, 2017, the PCRA court dismissed Appellant’s
PCRA petition.
On September 29, 2017, Appellant timely filed a pro se notice of appeal
and request for counsel. The PCRA court appointed current counsel on
October 30, 2017. The PCRA court ordered Appellant on November 2, 2017,
to file a concise statement of errors complained of on appeal per Pa.R.A.P.
1925(b); Appellant failed to comply. Nevertheless, the PCRA court issued a
Rule 1925(a) opinion on December 1, 2017. On December 8, 2017, counsel
sent to the PCRA court a letter explaining he did not file a Rule 1925(b)
statement on behalf of Appellant, because counsel believed he had a potential
conflict of interest in representing Appellant. The PCRA court issued a
supplemental Rule 1925(a) opinion on December 12, 2017, suggesting that
this Court remand for appointment of new counsel, whom the PCRA court shall
order to file a compliant Rule 1925(b) statement.
Appellant raises the following issues for our review:
WHETHER APPELLANT’S PCRA APPEAL SHOULD BE
REMANDED TO THE [PCRA] COURT PURSUANT TO PA.R.A.P.
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1925(C) TO PERMIT NEW COUNSEL TO FILE A STATEMENT
OF MATTERS COMPLAINED OF ON APPEAL[?]
WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING
TO OBJECT TO THE PROSECUTION’S USE OF
UNSUBSTANTIATED CLAIMS OF WITNESS INTIMIDATION
BY APPELLANT[?]
WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING
TO OBJECT TO OR PLACE ON THE RECORD THAT THE
COMMONWEALTH USED ITS PEREMPTORY JURY STRIKES IN
A RACIALLY DISCRIMINATORY MANNER[?]
WHETHER APPELLANT’S [DIRECT APPEAL] COUNSEL WAS
INEFFECTIVE FOR FAILING TO PROPERLY SPECIFY WHAT
ELEMENTS OF THE OFFENSE HAD NOT BEEN MET IN THE
[RULE] 1925(B) STATEMENT OF ERRORS[?]
WHETHER APPELLANT IS ENTITLED TO A NEW TRIAL BASED
UPON DUE PROCESS VIOLATIONS WHEN AFTER
DISCOVERED EXCULPATORY EVIDENCE WHICH WAS
UNAVAILABLE AT THE TIME OF TRIAL[?]
(Appellant’s Brief at 4).
As a prefatory matter, we observe the failure to file a court-ordered Rule
1925(b) statement generally constitutes a waiver of all issues.
Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998). “[T]o preserve
their claims for appellate review, [a]ppellants must comply whenever the trial
court orders them to file a Statement of [Errors] 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.” Commonwealth v. Castillo, 585 Pa.
395, 403, 888 A.2d 775, 780 (2005) (citing Lord, supra at 420, 719 A.2d at
309).
Our Supreme Court revised Rule 1925 to provide a remedy when a
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criminal appellant’s counsel fails to file a court-ordered Rule 1925(b)
statement.2 See Pa.R.A.P. 1925(c)(3); Commonwealth v. McBride, 957
A.2d 752, 755 (Pa.Super. 2008). Rule 1925(c)(3) allows the appellate Court
to remand “for the filing of a Statement nunc pro tunc and for the preparation
and filing of an opinion by the judge,” if the court ordered an appellant in a
criminal case to file a Rule 1925(b) statement, appellant failed to do so, and
the appellate court is convinced that counsel has been per se ineffective.
Pa.R.A.P. 1925(c)(3). See also Commonwealth v. Presley, ___ A.3d ___,
2018 PA Super 207, 23-24 (filed July 17, 2018) (providing Rule 1925(c)(3)
applies in context of appeal from denial of timely first PCRA petition).
Interpreting the revised Rule 1925(c)(3), this Court has held that
counsel’s failure to file a court-ordered Rule 1925(b) statement is per se
ineffectiveness. Commonwealth v. Burton, 973 A.2d 428, 431-32
(Pa.Super. 2009) (en banc). Generally, when waiver occurs due to counsel’s
complete failure to file a Rule 1925(b) statement, remand is proper.
Commonwealth v. Mitchell, 986 A.2d 1241, 1244 n.4 (Pa.Super. 2009)
(noting counsel’s failure to file court-ordered Rule 1925(b) statement required
remand for filing of concise statement nunc pro tunc under revised Rule
1925(c)(3)); Commonwealth v. Scott, 952 A.2d 1190, 1192 (Pa.Super.
2008) (recognizing recent amendment to Rule 1925 relaxed strict application
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2 Rule 1925 was amended on May 10, 2007, and again on January 13, 2009.
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of Lord and stating, “pursuant to the amended version of Rule 1925, the
complete failure by counsel to file a Rule 1925(b) statement, as ordered, is
presumptively prejudicial and clear ineffectiveness”). But see Burton, supra
at 433 (stating this Court may review appeal and not remand for filing of
concise statement where trial court addressed in opinion issues appellant
raises on appeal). Upon remand, counsel must file a Rule 1925(b) statement
nunc pro tunc; thereafter, the trial court should prepare an opinion, file it, and
forward it to this Court within 30 days. Scott, supra at 1192-93.
Instantly, on November 2, 2017, the PCRA court ordered a Rule 1925(b)
statement. Appellant’s counsel, however, did not file a Rule 1925(b)
statement, due to a concern that he has a conflict of interest in representing
Appellant. Absent more, counsel’s omission constituted per se
ineffectiveness. See Burton, supra. Despite counsel’s failure to file Rule
1925(b) statement, the PCRA court issued a Rule 1925(a) opinion. In its
opinion, the PCRA court suggests it mistakenly treated Appellant’s response
to the Rule 907 notice as a supplemental PCRA petition filed without leave of
court. The PCRA court also does not address in its opinion any appellate issue
Appellant raised including his claim for a new trial based on after-discovered
evidence, which he first presented in his response to Rule 907 notice and now
attempts to present as his fifth issue on appeal. See id.Accordingly, in concert with the PCRA court’s recommendation, we
remand this case with the following instructions. First, the PCRA court shall
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not reject Appellant’s September 11, 2017 filing as a supplemental PCRA
petition filed without leave of court. The record demonstrates Appellant’s
September 11th filing is his response to Rule 907 notice, which the court
expressly permitted, and is compliant with the court’s August 18, 2017 order.
Second, within ten (10) days of the filing date of this decision, the PCRA court
shall appoint new counsel to assist Appellant and order counsel to file a Rule
1925(b) statement. New counsel must promptly review the record and file
and serve the PCRA court with a proper Rule 1925(b) statement within the
time the court allows. Upon receipt of the Rule 1925(b) statement, the PCRA
court shall have thirty (30) days to prepare an opinion in response to that
statement, pursuant to Rule 1925(a), and transmit the certified record to this
Court along with all of the new documents certified as part of that record.
Case remanded with instructions. Jurisdiction is retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/3/18
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