Opinion
J. A16037/18 No. 3700 EDA 2017
09-07-2018
COMMONWEALTH OF PENNSYLVANIA v. DERRICK D. CRAGO, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence, October 10, 2017, in the Court of Common Pleas of Chester County
Criminal Division at No. CP-15-SA-0000435-2017 BEFORE: BENDER, P.J.E., LAZARUS, J., AND FORD ELLIOTT, P.J.E. MEMORANDUM BY FORD ELLIOTT, P.J.E.:
Derrick D. Crago appeals pro se from the October 10, 2017 judgment of sentence of a $150 fine imposed after the trial court found him guilty of the summary offense of obedience to traffic-control devices. After careful review, we affirm.
The relevant findings of fact, as set forth by the trial court in its February 22, 2018 opinion, are as follows:
[a]t about 8:00 A.M. [on May 23, 2017], Officer [Ted] Lewis [of the Westtown-East Goshen Regional Police Department] was parked on Goshen Parkway and observed a gray Ford [being driven by appellant] traveling southbound on Airport Road. The vehicle slowed down, made a left-hand turn, went around the concrete median and entered Goshen Parkway traveling east. He flagged the vehicle over and observed the driver to be [appellant].
[Appellant] provided his license, registration and insurance information as requested. Officer Lewis advised [appellant] that he was stopped for failing to obey the no left turn sign and issued a citation for disobedience to traffic control devices. [Appellant] stated that he believed that the sign was to prevent people from going into the one-way exit out of Goshen Parkway.Trial court opinion, 2/22/18 at 5-7 (citations to notes of testimony omitted; quotation marks in original).
Officer Lewis described the one-lane exit as follows: "If you are exiting Goshen Parkway, you would be traveling west. You approach a concrete median, which forces you to the right of that median. You travel along that concrete median for approximately 100 feet and it bends you around to the right-hand side where you approach a stop bar. After going past the stop bar, there is an acceleration lane, which allows your vehicle to get up to speed to be able to merge into traffic with traffic that's traveling northbound on Airport Road." Traffic cannot turn left onto Airport Road from Goshen Parkway. The roadway is designed and constructed so that you can only turn right onto Airport Road into the northbound lane of travel.
The no-left turn sign was located about 150 to 200 feet prior to where [appellant] made the left turn. There is a lawful way to make a left hand turn on that roadway, located about two tenths of a mile south from the sign, onto Wright's Lane East. Officer Lewis testified that there is nothing in the Vehicle Code that prohibits a vehicle from crossing a double yellow line. However, the way roadways are constructed, there will not be double yellow lines in proper intersections.
[Appellant] testified that he is not from the area in which he was stopped and that day was the first time he was there. He maintains an apartment in Wayne, but is "not familiar at all with this neck of the woods." He was looking for the Helicopter Museum on the day in question. He stated that he did not see the no left turn sign and as soon as he recognized that there was a possibility of turning, he made the left turn.
On July 18, 2017, District Justice Thomas W. Tartaglio found appellant guilty of the summary offense of obedience to traffic-control devices. Appellant filed a timely summary appeal and a trial de novo was scheduled for October 10, 2017. Following a one-day trial, appellant was again found guilty and sentenced to pay a $150 fine. On November 9, 2017, appellant filed a timely pro se notice of appeal. On November 13, 2017, the trial court directed appellant to file a concise statement of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b), within 21 days. The record contains a certificate of service indicating appellant's receipt of the Rule 1925 order. On December 5, 2017, one day after expiration of the 21-day filing period, appellant filed a Rule 1925(b) statement raising the following claims:
1. The Trial Judge err[ed] in concluding that the nature of the intersection and signage in question were sufficient to inform [appellant] of his legal responsibilities;Appellant's Rule 1925(b) statement, 12/5/17.
2. The Trial Judge erred in failing to apply the Manual on Uniform Traffic Control Devices to this matter; [and]
3. The Trial Judge erred in concluding that the infraction in this matter, if any, failed to constitute a de minimis infraction. (Section 312 of the Crimes Code[.])
The docket indicates that the trial court's Rule 1925(b) order was docketed on November 13, 2017, and sent to appellant via certified mail on November 14, 2017. It is the date the trial court's Rule 1925(b) order is entered on the docket from which the 21-day time period starts to run. See Pa.R.A.P. 1925(b)(2), Time for filing and service (stating, "[t]he judge shall allow the appellant at least 21 days from the date of the order's entry on the docket for the filing and service of the Statement.") (emphasis added). Appellant's Rule 1925(b) statement, in turn, was docketed on December 5, 2017, one day late, and both the trial court and the Commonwealth acknowledge its untimeliness. ( See trial court Rule 1925(a) opinion, 2/22/18 at 1; Commonwealth's brief at 2.) Nevertheless, the trial court accepted appellant's Rule 1925(b) statement and addressed his claims in its February 22, 2018 opinion.
Our supreme court has long recognized that where a trial court orders an appellant to file a Rule 1925(b) statement, the appellant must comply in a timely manner. Commonwealth v. Castillo , 888 A.2d 775, 780 (Pa. 2005) (re-affirming the bright-line rule established in Commonwealth v. Lord , 719 A.2d 306, 309 (Pa. 1998).) Barring extraordinary circumstances, the failure to do so constitutes waiver of all issues on appeal. Id.; see also Commonwealth v. Schofield , 888 A.2d 771, 774 (Pa. 2005) (stating that "failure to comply with the minimal requirements of Pa.R.A.P. 1925(b) will result in automatic waiver of the issues raised."); Pa.R.A.P. 1925(b)(4)(vii) (providing that "[i]ssues . . . not raised in accordance with the provisions of this paragraph (b)(4) are waived.").
This court, sitting en banc , addressed this issue in Greater Erie Industrial Dev. Corp. v. Presque Isle Downs , Inc., 88 A.3d 222, (Pa.Super. 2014) ( en banc ), and held that, following our supreme court's decisions in Castillo and Schofield ,
it is no longer within this Court's discretion to review the merits of an untimely Rule 1925(b) statement based solely on the trial court's decision to address the merits of those untimely raised issues. Under current precedent, even if a trial court ignores the untimeliness of a Rule 1925(b) statement and addresses the merits, those claims still must be considered waived: Whenever a trial court orders an appellant to file a concise statement of errors complained of on appeal pursuant to Rule 1925(b), the appellant must comply in a timely manner.Id. at 225 (internal citations and quotation marks omitted).
Based on the foregoing, we find all of appellant's issues waived because of his failure to file a timely Rule 1925(b) statement in accordance with the trial court's November 13, 2017 order. Accordingly, we affirm the October 10, 2017 judgment of sentence.
We recognize that the crux of appellant's argument on appeal is that there was insufficient evidence to sustain his conviction for obedience to traffic-control devices. ( See appellant's brief at 8-12.) Viewing the evidence in the light most favorable to the Commonwealth, the verdict winner, we agree with the trial court that there was ample evidence in the record to support appellant's conviction. Therefore, even if appellant had not waived his claims on appeal, we would have determined that they lack merit for the reasons set forth in the trial court's comprehensive February 22, 2018 opinion. ( See trial court opinion, 2/22/18 at 8-10.)
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/7/18