Com. v. Johnson, M.

J-S38028-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MATTHEW JOHNSON :
:
Appellant : No. 2784 EDA 2017
Appeal from the Judgment of Sentence July 18, 2017
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0004231-2016
BEFORE: OTT, J., DUBOW, J., and COLINS, J.*
DISSENTING MEMORANDUM BY OTT, J.: FILED DECEMBER 23, 2019
I am constrained to dissent from the majority. I do not believe the issue
addressed by the majority has been properly preserved. Accordingly, I would
remand the matter for further proceedings pursuant to Pa.R.A.P. 1925(c)(3).
My review of the record indicates that at the close of the presentation
of evidence, on July 18, 2017, Johnson filed a motion to dismiss based upon
a claimed lack of conformity of the evidence to the requirements of 35 P.S. §
780-113(35)(ii)(A)-(E). The motion did not raise the issue currently before
this Court. The motion was denied and the jury subsequently convicted
Johnson on all charges.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S38028-19
On July 28, 2017, Johnson filed a post-sentence motion in arrest of
judgment that included the same argument raised on July 18, 2017, but once
again did not raise the issue currently before our Court.
Prior to disposition of his post-sentence motion, on August 17, 2017,
Johnson filed his notice of appeal to the Superior Court. On September 7,
2017, the trial court denied Johnson’s post-sentence motion.
On October 25, 2017, the trial court issued an order directing Johnson
to file, within 21 days, his Pa.R.A.P. 1925(b) statement of matters complained
of on appeal. That order was docketed on October 25, 2017. Pursuant to
Pa.R.A.P. 1925(b)(3)(i), Johnson had 21 days from the date of entry of the
order (10/25/2017) in which to timely file his Pa.R.A.P. 1925(b) statement.
The 21st and final day on which to file his Pa.R.A.P. 1925(b) statement was
November 15, 2017. Johnson filed his Pa.R.A.P. 1925(b) statement on
November 16, 2017, one day late.1 Relevant to this appeal, the 1925(b)
statement made reference to the post-sentence motion, but did not raise the
issue currently before this Court.
On November 9, 2017, trial counsel filed a motion to withdraw as
counsel, which was denied by the trial court on April 12, 2018. In the
meantime, on December 13, 2017, trial counsel filed a motion to withdraw as
____________________________________________
1 See Commonwealth v. Williams, 920 A.2d 887, 888 n.3 (Pa. Super. 2007)
(noting, generally, all issues are waived when an untimely 1925(b) statement
is filed.)
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counsel with the Superior Court. Trial counsel claimed irreconcilable
differences with Johnson regarding how to proceed with his defense,2 as well
as a disagreement over the payment of fees. This motion was denied on
January 16, 2018.
On August 24, 2018, current counsel entered his appearance on behalf
of Johnson. There is no order in the certified record which granted trial counsel
leave to withdraw.
Also on August 24, 2018, current counsel, without seeking permission
pursuant to Pa.R.A.P. 1925(b)(2), filed a new Pa.R.A.P. 1925(b) statement.
Accordingly, this Pa.R.A.P 1925(b) was also untimely. Additionally, this
statement claimed insufficient evidence was presented at trial to support a
conviction under a statute under which Johnson was not charged (35 P.S. 780-
113(35)(i)). Therefore, the issue raised in this Pa.R.A.P. 1925(b) statement
is also irrelevant. This 1925(b) statement did not refer to, incorporate, or
claim to supplement the initial, untimely, Pa.R.A.P. 1925(b) statement.
The trial court opinion that denied Johnson relief based on the fact that
the current counsel’s 1925(b) statement is irrelevant to Johnson’s conviction.
In his brief, Johnson has raised the issue addressed by the majority, but
which was not raised before the trial court. The Commonwealth’s brief argues
Johnson is not entitled to relief based on waiver; the issue contained in
Johnson’s brief was not included in his 1925(b) statement.
____________________________________________
2 Presumably, Johnson did not agree with the issues raised in the 1925(b)
statement.
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J-S38028-19
Upon my review of the certified record, it appears that both the initial
and subsequent counsels’ Pa.R.A.P. 1925(b) statements were untimely filed,
rendering all issues contained therein waived. Thus, both counsel were
ineffective for failing to properly preserve any issues for review. Pursuant to
Pa.R.A.P. 1925(c)(3),
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).
Accordingly, I believe the proper course of action is to remand this
matter to the trial court for filing of a 1925(b) statement, which shall bind
Johnson to the issues raised therein. Presumably, this would include the issue
addressed by the majority. Additionally, by remanding this matter, both the
trial court and the Commonwealth will have the opportunity to address, for
the first time, this issue, which has never been specifically raised before this
appeal.
In light of the foregoing, I do not believe the issue addressed by the
majority has been properly preserved. I would remand this matter to the trial
court for conformity with the dictates of Pa.R.A.P. 1925(c)(3). Accordingly, I
respectfully dissent.
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