Opinion
No. 228 EDA 2005.
Filed: February 7, 2007.
Appeal from the Judgment of Sentence November 18, 2004 In the Court of Common Pleas of Philadelphia County Criminal Division at No. CP#9606-1016 2/2.
BEFORE: BENDER, BOWES, JJ. and McEWEN, P.J.E.
¶ 1 This is an appeal from a judgment of sentence imposed upon Appellant after he was convicted, in a jury trial, of one count each of aggravated assault and carrying a firearm without a license. Appellant raises six enumerated issues of trial court error. However, due to our ultimate conclusion that Appellant has failed to properly preserve any issues for appellate review, we will forego setting them forth in detail while affirming Appellant's judgment of sentence.
¶ 2 The charges in the present case stem from a shooting occurring in the early morning hours of June 8, 1996, in downtown Philadelphia. At approximately 3:00 a.m. on that day, Javon Jones and Bobby Mahallati were making their way in a Geo Tracker vehicle to a night club located on Arch Street. Jones was driving the vehicle and stopped behind two other vehicles at a traffic light located on 7th street. When the traffic light changed from red to green, the first vehicle in line, a white Lexus, did not proceed through the intersection as its occupants, Appellant and Brett Stewart, had struck up a conversation with some girls situated in the second vehicle. After a few moments passed without the vehicles moving, Jones attempted to pull around the two cars and proceed through the intersection. However, by the time Jones got the Tracker around the car in front of him the light had changed back to red leaving the tracker sitting directly aside the white Lexus, which was being driven by Appellant.
¶ 3 Although the testimony received at trial provided differing accounts of what transpired next, including which side threatened the other and who possessed weapons, suffice it to say that some verbal sparring took place between the occupants of the two vehicles while waiting for the light to turn green. This verbal confrontation ultimately led to Mahallati being shot. According to one version of the events, when the light turned green, and after the verbal exchange, Jones proceeded through the intersection and continued on to the nightclub. While stopped in front of the nightclub, Appellant pulled up next to the Tracker and more words were exchanged. Appellant reportedly challenged the occupants of the Tracker to "take it around the corner" and drove around the corner to 8th Street. The Tracker soon followed and, upon turning onto 8th Street, observed the Lexus stopped in the middle of the street. As the Tracker passed alongside the Lexus, Jones and Mahallati observed Appellant and Stewart in the possession of handguns. Seeing this, Jones accelerated the vehicle to get away while Mahallati slid down in his seat to shield his body. As the Tracker pulled away from the Lexus, Jones and Mahallati heard gunshots being fired and Mahallati suddenly lost feeling in his legs, the result of a bullet piercing the vehicle and striking him in the spine.
¶ 4 Realizing that Mahallati had been struck with a bullet, Jones drove the vehicle back to the front of the nightclub where a police officer had been stationed and told the police officer what had happened. The officer summoned an ambulance and also provided flash information regarding the white Lexus and its occupants. At least 3 vehicles matching the description were stopped in the surrounding area, one of which was the vehicle occupied by Appellant and Stewart, who were stopped on 11th Street. Jones was taken to two locations without being able to provide a positive identification. On the third attempt, Jones was taken to Appellant's location where he positively identified Appellant and Stewart.
¶ 5 In the wake of the shooting, Appellant was charged with two counts of attempted murder, two counts of aggravated assault, criminal conspiracy and various weapons charges. Prior to trial, Appellant filed a motion to suppress guns seized from the Lexus. A suppression hearing was scheduled for March 9, 1998, with a trial to immediately follow. At the conclusion of the suppression hearing, the court ordered the suppression of guns seized from the Lexus without a warrant. Rather than proceed to trial without the possibility of introducing the handguns into evidence, the Commonwealth took a direct appeal to this Court contending that the warrantless seizure of the guns from the Lexus was justified by exigent circumstances. We agreed with the Commonwealth and reversed the suppression order. Commonwealth v. Perry, 1314 PHL 1998, unpublished Memorandum, (Pa.Super. filed 4/9/98). Appellant filed a petition for allowance of appeal, which was granted. Commonwealth v. Perry, 563 Pa. 614, 757 A.2d 931 (2000). On June 3, 2002, the Supreme Court affirmed the decision rendered by this Court and the matter was remanded for trial. Commonwealth v. Perry, 568 Pa. 499, 798 A.2d 697 (2002).
¶ 6 Upon remand, Appellant and Stewart were tried before a jury on September 30, 2004. At the conclusion of the trial, Appellant was found guilty of one count of aggravated assault and one count of carrying a firearm without a license. Appellant was acquitted of the remaining charges and Stewart was acquitted of all charges. Appellant was sentenced on November 18, 2004, to maximum terms of imprisonment on each charge. That sentence totaled 12 ½ to 25 years' imprisonment. On November 29, 2004, Appellant filed a timely motion to reconsider sentence, which was denied on January 4, 2005. The present appeal followed.
¶ 7 As always, before addressing Appellant's issues on their merits, we must confirm that the issues raised have been properly preserved for appellate review. Generally speaking, to preserve an issue for appellate review it is incumbent upon a party to raise the issue, in some fashion, before the trial court and to comply with Pa.R.A.P. 1925. Here, it is the compliance with Pa.R.A.P. 1925 that merits additional scrutiny.
¶ 8 Appellant filed his notice of appeal on January 13, 2005. On March 31, 2005, the court responded to the filing of Appellant's notice of appeal by entering an order, pursuant to Pa.R.A.P. 1925, directing Appellant to file a concise statement of matters complained of on appeal within 14 days. That order was docketed April 1, 2005. Thus, by the terms of the court's order, Appellant was required to file a statement of matters complained of on appeal by April 14, 2005. Appellant did file a Rule 1925 statement, but did not do so until April 20, 2005, six days beyond the time allowed by the court's order. Moreover, the record is devoid of any indication that an enlargement of time for filing Appellant's Rule 1925 statement was sought and received.
If Appellant were allowed 14 days from the day the order was docketed, the time for filing his Rule 1925 statement would have been extended to April 15, 2005.
¶ 9 While upon reviewing the certified record, Appellant's Rule 1925 statement appears untimely, we note that:
there are caveats to a finding of waiver. First, the trial court must issue a Rule 1925(b) order directing an Appellant to file a response within fourteen days of the order. Second, the Rule 1925(b) order must be filed with the prothonotary. Third, the prothonotary must docket the Rule 1925(b) order and record in the docket the date it was made. Fourth, the prothonotary shall give written notice of the entry of the order to each party's attorney of record, and it shall be recorded in the docket the giving of notice. See Pa. R.C.P. 236. If any of the procedural steps set forth above are not complied with, Appellant's failure to act in accordance with Rule 1925(b) will not result in a waiver of the issues sought to be reviewed on appeal. See Commonwealth v. Hess, 570 Pa. 610, 618, 810 A.2d 1249, 1252 (2002).
Forest Highlands Cmty. Ass'n v. Hammer, 879 A.2d 223, 227 (Pa.Super. 2005). Our review of the record, and particularly of the docket, reveals that, despite the mandates of Pa.R.Crim.P 114 and Hess, supra, the docket fails to note the date and manner of service of the court's 1925 order. However, further inspection reveals that service in the present case was not made by the clerk of courts but, rather, by the court itself. The rules of criminal procedure, particularly Pa.R.Crim.P. 114, which was discussed in Hess, allow for service of orders and notices directly by the court. Here, that procedure was followed and, as set forth in the rules of criminal procedure, the court filed a proof of service indicating that service was made to the parties. The initial question the present case presents is whether the failure of the docket to note the date and manner of service constitutes a failure that excuses Appellant's late filing. We believe the answer is "no."
¶ 10 It is clear that although Forest Highlands deals with a civil case and the failure of the prothonotary to record the date and manner of service, the same rules are applicable to criminal appeal and failures of the Clerk of Courts to docket the necessary information. In Commonwealth v. Gonzalez, 840 A.2d 326 (Pa.Super. 2003), we refused to find a waiver for failing to file a Rule 1925 statement where the docket did not reflect the date and manner of service. A similar result was reached in Commonwealth v. Davis, 867 A.2d 585 (Pa.Super. 2005), which followed the lead of Hess.
¶ 11 However, it is notable that the above-cited cases involved 1925 orders that were served on the parties by the Clerk of Courts. While the rules of procedure require the Clerk of Courts and prothonotary to record the date and manner of service of documents it serves on parties, if the Clerk of Courts did not serve the document in question, there is no reason to expect the Clerk of Courts to make a docket entry reflecting the date and manner of service. Instead, the party serving the document files a proof of service with the Clerk of Courts, which the Clerk of Courts notes on the docket. As such, in cases in which the Rule 1925 order is served by the court, we conclude that the requirements for finding waiver under Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998), do not include the recording of the date and manner of service on the docket where a proof of service is filed. Since Appellant's Rule 1925 statement was untimely filed and there is sufficient evidence of service, it is elementary to find Appellant's issues waived for failing to file a timely Rule 1925 statement. Commonwealth v. Castillo, 585 Pa. 395; 888 A.2d 775 (2005).
¶ 12 Appellant's counsel contends in a reply brief that he sought an extension of time to file Appellant's Rule 1925 statement because although the order was dated March 31, 2005, it was not mailed until April 7, 2005, and was not received until April 8, 2005. Counsel further avers that in response to his request for an extension he was notified by the court's clerk via phone that an extension until April 22, 2005, was granted. However, as noted above, there is nothing in the record which substantiates the fact that an extension was requested and received. Counsel contends in Appellant's reply brief that there was "nothing in the law requiring the formal entry in the record of an Order extending the filing period for a 1925(b) statement." Appellant's Reply Brief at 3. We have difficulty accepting this assessment of the law. Whether or not there exists a reported decision explicitly holding that an extension for filing a Rule 1925 statement must be documented in the record, the law of this Commonwealth has been clear for some time, on appellate review the appellate court's review is confined to the certified record. Commonwealth v. Walker, 878 A.2d 887 (Pa.Super. 2005). Based upon Walker, we cannot accept Appellant's contention that an oral extension is sufficient to extend the time for the filing of a Rule 1925 statement. Rather, any extension must be evidenced in the certified record. ¶ 13 Unfortunately, the saga of this case vis-À-vis Rule 1925 does not end with Appellant's argument regarding the need to document extensions on the formal record. In apparent recognition of the fact that there existed no record of the oral extension to file his Rule 1925 statement, Appellant, it would seem, took the additional step of asking the court to sign an order "extending the time to file a Pa.R.A.P. 1925(b) statement nunc pro tunc." At oral argument of this case, counsel for Appellant provided the panel members of this Court with copies of an order, signed by the trial court on October 26, 2006, that extended the time for filing Appellant's Rule 1925 statement until April 22, 2006. The copies of the order bore a stamp of the Criminal Appeals Unit indicating the order was "filed" on October 26, 2006. Unfortunately, the order is not contained in the certified record forwarded to this Court, nor does the docket sheet indicate that the order was in fact filed with the Criminal Appeal Unit. While this Panel does not dispute the authenticity of the order in question, we again refer back to the discussion above relating to the limitations on our review vis-à-vis the certified record. Because the order extending the time for filing Appellant's Rule 1925 statement does not appear in the certified record, nor is there a record of the order's filing on the docket sheet, we are constrained to disregard the copy of the order provided by counsel at oral argument and conclude that, on the record before us, Appellant's Rule 1925 statement was untimely filed.
In Philadelphia County, there is no Clerk of Courts. Rather, the function of the Clerk of Courts is performed by the "Criminal Appeals Unit."
We would note that the Panel of this Court took extra measures to ascertain whether the order in question was in fact "filed" with the Criminal Appeals Unit. Given that the order in question was stamped "filed" after the record had been forwarded to this Court, this Court, through the Superior Court Prothonotary's Office, contacted the Criminal Appeals Unit in December of 2006 to see if the docket sheet currently reflected the filing of the order. When informed that the docket sheet did not reflect the order's filing, we asked if a physical search could be conducted in an effort to locate the order. We were subsequently informed that the order could not be located.
¶ 14 Given the untimely filing of Appellant's Rule 1925 statement, we must conclude that all issues for appellate review have been waived. While we regret that we are constrained to find the present issues raised, we are duty bound by Castillo to find waiver. Of course, given the facts of the present case, Appellant may very well have recourse via the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541- 9546, and possibly may have his direct appeal rights restored.
¶ 15 Judgment of sentence affirmed.
¶ 16 McEwen, P.J.E. files a Dissenting Statement.
¶ 1 While the Opinion of the majority provides a perceptive expression of rationale, and while I agree with its citation to, and interpretation of, the Supreme Court's decision in Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005), I am nonetheless compelled to this dissenting statement, since, in my view, prior to this Court concluding that counsel failed to preserve appellant's issues, we should remand this case to the trial court for a fact hearing on the question of whether counsel for appellant was in fact granted oral permission to extend the time for filing a Rule 1925(b) statement.
The majority goes to some lengths to distinguish the facts of this case from the strict requirements of docket proof of the manner of service dictated by Commonwealth v. Hess, 570 Pa. 610, 618, 810 A.2d 1249, 1254 (2002), and thereby relieve the trial court from a duty to ensure that the Rule 1925 notice was properly served. However, the Majority then proceeds to hold counsel for appellant to a strict standard of docketing an oral grant of an extension by the trial judge, inspiring, in my most respectful view, a certain sense of inconsistency.