Com. v. Hairston, K.

• Court: Superior Court of Pennsylvania
• Decided: July 1, 2024
• Docket: 3204 EDA 2022
• Status: Unpublished

Opinion

J-A01045-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KAREEM HAIRSTON : : Appellant : No. 3204 EDA 2022

Appeal from the Judgment of Sentence Entered November 16, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008809-2021

BEFORE: LAZARUS, P.J., PANELLA, P.J.E, and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED JULY 1, 2024

Appellant, Kareem Hairston, appeals from the judgment of sentence

imposed by the Philadelphia County Court of Common Pleas after the court

found him guilty of possession of a firearm by a prohibited person.1 On direct

review, he challenges the sufficiency of the evidence and the discretionary

aspects of his sentence. We remand for additional proceedings consistent with

this memorandum.

Appellant’s firearm charge resulted from a police officer watching him

remove a black object from his hooded sweatshirt and place that object into

a black plastic bag that the police later recovered and found to contain a

loaded handgun. N.T. 3/25/22, 11. On March 25, 2022, Appellant proceeded

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 6105. J-A01045-24

to a hearing on a motion to suppress the recovered gun. Id. at 5. After the

court denied the motion, Appellant agreed to immediately proceed with a non-

jury trial. Id. at 41-48. The Commonwealth incorporated into the trial record

the non-hearsay testimony and an exhibit from the suppression hearing and

presented additional testimony. Id. at 46-53. Upon the conclusion of the

Commonwealth’s case-in-chief, Appellant made a motion for a judgment of

acquittal. Id. at 53. The trial court then mistakenly announced a guilty

verdict upon ruling on that motion where Appellant had not been permitted

the opportunity to present a defense. Id. at 55. To remedy the error, the

court recused itself from the matter and referred the matter to be reassigned

for trial before another jurist. Id. at 56.

The rescheduled trial took place before a new judge on June 6, 2022,

and concluded with Appellant being convicted of the above-referenced

offense. Trial Disposition Form, 6/7/22, 1. Sentencing was deferred for the

preparation of a pre-sentence investigation report and a mental health

evaluation. Trial Docket Entry, 6/6/22. On November 16, 2022, the court

imposed a sentence of five to ten years’ imprisonment. Sentencing Order,

11/16/22, 1. No post-sentence motions were subsequently filed. Appellant

timely filed a counseled notice of appeal.2 Notice of Appeal, 12/14/22, 1. On

December 16, 2022, the trial court issued an order pursuant to Pa.R.A.P.

2 Counsel did not sign the filed notice. At the direction of this Court, counsel filed an amended notice of appeal that included his signature. Amended Notice of Appeal, 2/25/23, 1.

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1925(b). No concise statement of matters complained of on appeal was ever

filed in response to the trial court’s Rule 1925(b) order.

Appellant presents the following issues for our review:

1. Whether the evidence presented at trial was sufficient to establish each and every element of the crimes for which [A]ppellant was convicted.

2. Whether the sentencing court abused it[s] discretion by imposing a manifestly excessive sentence that was not based upon the gravity of the violation, the extent of [A]ppellant’s record, his prospect of rehabilitation, nor an assessment of the mitigating and aggravating factors as noted in 42 [Pa.C.S. §] 9721 of the Sentencing Code.

Appellant’s Brief at 8.

Generally, the failure to file a court-ordered Rule 1925(b) statement

results in a waiver of all issues on appeal. See Pa.R.A.P. 1925(b)(4)(vii);

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (explaining that Rule

1925(b) is a bright-line rule and any claims not raised in the statement will be

waived). At the same time, “[t]he complete failure to file the [Rule] 1925

concise statement [by counsel] 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. Thompson, 39 A.3d 335, 339 (Pa.

Super. 2012) (citation omitted). Where the failure to file a Rule 1925(b)

statement is the result of an omission by counsel, Rule 1925(c)(3) directs us

as follows:

If an appellant represented by counsel in a criminal case was ordered to file and serve a Statement and either failed to do so,

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or untimely filed or served a Statement, 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 or service of a Statement nunc pro tunc, and the preparation and filing of an opinion by the judge.

Pa.R.A.P. 1925(c)(3).

Here, while Appellant continued to be represented by his present

counsel who previously acted as his trial counsel, he never filed a Rule 1925(b)

statement in response to the trial court’s December 16, 2022 order. As a

result, counsel effectively foreclosed any substantive review in the instant

appeal, and this amounts to per se ineffectiveness. See Pa.R.A.P. 1925(c)(3);

Commonwealth v. West, 883 A.2d 654, 657-58 (Pa. Super. 2005) (where

counsel failed to file a substantive concise statement, they have effectively

abandoned their client).

Due to present counsel’s per se ineffectiveness, we must remand, but

our task of doing so is also complicated by additional factors. First, there are

no notes of testimony for Appellant’s June 6, 2022 trial and his November 16,

2022 sentencing hearing in the certified record for this appeal, and no proof

that counsel has ever ordered the transcription of those notes of testimony.

Those transcripts will need to be secured before the filing of a Rule 1925(b)

statement so that a newly appointed counsel will have the ability to conduct

an adequate review of the record so they may determine the issues that may

be appropriately raised in a concise statement of errors complained of on

appeal. Second, there is presently no judge assigned to this case for the lower

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court as the jurist who sat for Appellant’s June 6, 2022 trial is no longer sitting

as a judge for the Philadelphia County Court of Common Pleas. The trial court

will need to reassign a new jurist to this matter for purposes of this appeal.

We remand this matter and direct the trial court to appoint new counsel

for Appellant within 21 days of the date that the certified record is returned to

the trial court. We also direct the trial court to instruct the newly appointed

counsel to secure the notes of testimony for Appellant’s trial and sentencing

hearing and ensure a copy of those notes of testimony is included in the lower

court’s record for this matter. Newly appointed counsel shall file a Pa.R.A.P.

1925(b) statement after their receipt of the missing notes of testimony. While

we would normally issue a schedule for the filing of the Rule 1925(b)

statement, as well as a forthcoming trial court opinion, and new appellate

briefs from the parties, we are reluctant to issue a specific timeline given the

absence of a current trial judge assignment and the need for bringing a newly

appointed counsel up to speed with this matter amid the absence of all the

relevant notes of testimony. However, the court and the parties should

comply with the standard timing requirements as much as possible. The

Prothonotary of this Court is directed to send a copy of this decision to the

President Judge and the Supervising Judge of the Criminal Division of the trial

court.

Case remanded for further proceedings consistent with this

memorandum. Panel jurisdiction retained.

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