J-S22019-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : GABRIEL BENITO ROBERT : HERNANDEZ : : No. 1338 MDA 2024 Appellant :
Appeal from the Judgment of Sentence Entered August 15, 2024 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-SA-0000161-2024
BEFORE: LAZARUS, P.J., BOWES, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED: AUGUST 21, 2025
Gabriel Benito Robert Hernandez appeals pro se from the judgment of
sentence of a $100 fine, plus costs and fees, imposed after the court convicted
him at a de novo trial of the summary offense of operating a vehicle with a
suspended registration. We remand with instructions.
The following abridged case history is sufficient for this memorandum.
Officer Justin Schlottman of the Robeson Township Police Department stopped
Appellant in Bucks County upon discerning that his vehicle registration was
suspended due to unpaid Pennsylvania Turnpike tolls. Officer Schlottman
seized Appellant’s registration plate and allowed him to have a friend pick up
the vehicle rather than having it towed. Officer Schlottman subsequently filed
____________________________________________
* Former Justice specially assigned to the Superior Court. J-S22019-25
a citation for operating a vehicle with a suspended registration, which was
mailed to Appellant. He was convicted of the summary offense by the
magisterial district judge and appealed to the common pleas court, which also
found him guilty and imposed the sentence indicated above.
Appellant timely appealed. The trial court ordered Appellant to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b), but he did not comply. The trial court authored a statement opining
that Appellant waived all issues on appeal as a result.
In this Court, Appellant filed a slew of applications for relief, all of which
were denied before the case was assigned to the instant merits panel. Of
note, among Appellant’s filings were a Rule 1925(b) statement listing ten
claims of error and a motion for the statement to be accepted nunc pro tunc
because he never received or had knowledge of the court’s Rule 1925(b)
order.
In his brief, Appellant lists seventeen issues in his statement of
questions presented, and his argument portion of his brief is divided into ten
sections. The Commonwealth advocates for Rule 1925(b) waiver as to all of
them, with an additional suggestion that most of the seventeen matters were
not presented in the trial court and thus are waived in accordance with
Pa.R.A.P. 302(a). To this, Appellant responds that five of the errors were
specifically raised at the de novo trial, and that his failure to preserve the
remaining issues was “a direct consequence of discriminatory practices” in
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violation of the Americans with Disabilities Act (“ADA”), namely the court’s
“refusal to accommodate Appellant’s need for written support materials and
access to legal filings[.]” Appellant’s reply brief at 2 (pagination supplied).
Pursuant to Rule 1925(b)(4)(vii), issues not raised in a properly filed
statement are waived. However, for Rule 1925’s waiver provision to apply,
the trial court’s order must comply with Rule 1925(b)(3). See, e.g.,
Commonwealth v. Jones, 193 A.3d 957, 962 (Pa.Super. 2018). Further,
“[Pa.R.Crim.P.] 114(C)(2) provides that all orders and court notices must be
docketed, and the docket must contain the date the clerk received the order,
the date of the order, and the date and manner of service of the order or court
notice.” Commonwealth v. Davis, 867 A.2d 585, 586 (Pa.Super. 2005) (en
banc).
The trial court indicated that, after reviewing the docket entries, it was
“satisfied that Appellant [was] served with its September 17, 2024 [o]rder”
directing him to file a concise statement. See Statement in Lieu of Opinion,
12/24/24, at 2. We cannot agree with that assessment. The docket sheet
contained in the certified record reveals that the court’s 1925(b) order was
filed on September 17, 2024, and the following day served by eService only
upon the Berks County District Attorney’s Office and Colleen Dugan Schearer,
the ADA who represented the Commonwealth at the de novo trial. The docket
contains no notation that the order was served upon Appellant, let alone when
or in what manner. Consequently, although the court’s order complied with
-3- J-S22019-25
Rule 1925(b)(3), it was never properly entered and Appellant cannot be
penalized for failing to comply with it. See, e.g., Commonwealth v.
Chester, 163 A.3d 470, 472 (Pa.Super. 2017) (“Based upon the lack of
recordation in the docket, we are unable to determine the date of service of
the Order, as required under Criminal Rule 114, and cannot conclude that
Chester failed to comply with the PCRA court's directive to file a concise
statement.”).
For these reasons, this Court initially ordered that the case be remanded
for the trial court to restart the Rule 1925 process. Accord Davis, 867 A.2d
at 588 (remanding for a new Rule 1925(b) order to be properly docketed and
served, a new 1925(b) statement, and a new Rule 1925(a) opinion).
However, Appellant asked us to reconsider our mandate and instead proceed
with the Rule 1925(b) statement he submitted to the trial court on May 12,
2025, which was docked on May 19, 2025. We granted that request insofar
as we vacated our prior memorandum and order and have substituted the
instant memorandum decision.
However, we decline to accept Appellant’s further suggestion that we
proceed directly to examining the merits of his contentions based upon the
briefs before us rather than permit further filings from the trial court or the
Commonwealth. Given Appellant’s assertions about ADA violations and
omissions of material from the certified record, we find it inappropriate to
decide whether Rule 302(a) waiver applies to any of his issues absent any
-4- J-S22019-25
input from the trial court on those matters. Additionally, we will not fault the
Commonwealth for not addressing in its initial brief the propriety of the trial
court’s rulings when the trial court had not explained its reasoning for them.
Accordingly, we remand this case for the trial court to, within thirty days,
supply a Rule 1925(a) opinion advising this Court of its position on the issues
raised by Appellant. Once that has been transmitted to the parties and this
Court, the Superior Court prothonotary shall promptly issue a new briefing
schedule.1
Case remanded with instructions. Panel jurisdiction retained.
1 We caution Appellant that, “although this Court is willing to construe liberally
materials filed by a pro se litigant, a pro se appellant enjoys no special benefit.” Commonwealth v. Tchirkow, 160 A.3d 798, 804 (Pa.Super. 2017). “A pro se litigant must comply with the procedural rules set forth in the Pennsylvania Rules of the Court.” Smithson v.
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J-S22019-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : GABRIEL BENITO ROBERT : HERNANDEZ : : No. 1338 MDA 2024 Appellant :
Appeal from the Judgment of Sentence Entered August 15, 2024 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-SA-0000161-2024
BEFORE: LAZARUS, P.J., BOWES, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED: AUGUST 21, 2025
Gabriel Benito Robert Hernandez appeals pro se from the judgment of
sentence of a $100 fine, plus costs and fees, imposed after the court convicted
him at a de novo trial of the summary offense of operating a vehicle with a
suspended registration. We remand with instructions.
The following abridged case history is sufficient for this memorandum.
Officer Justin Schlottman of the Robeson Township Police Department stopped
Appellant in Bucks County upon discerning that his vehicle registration was
suspended due to unpaid Pennsylvania Turnpike tolls. Officer Schlottman
seized Appellant’s registration plate and allowed him to have a friend pick up
the vehicle rather than having it towed. Officer Schlottman subsequently filed
____________________________________________
* Former Justice specially assigned to the Superior Court. J-S22019-25
a citation for operating a vehicle with a suspended registration, which was
mailed to Appellant. He was convicted of the summary offense by the
magisterial district judge and appealed to the common pleas court, which also
found him guilty and imposed the sentence indicated above.
Appellant timely appealed. The trial court ordered Appellant to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b), but he did not comply. The trial court authored a statement opining
that Appellant waived all issues on appeal as a result.
In this Court, Appellant filed a slew of applications for relief, all of which
were denied before the case was assigned to the instant merits panel. Of
note, among Appellant’s filings were a Rule 1925(b) statement listing ten
claims of error and a motion for the statement to be accepted nunc pro tunc
because he never received or had knowledge of the court’s Rule 1925(b)
order.
In his brief, Appellant lists seventeen issues in his statement of
questions presented, and his argument portion of his brief is divided into ten
sections. The Commonwealth advocates for Rule 1925(b) waiver as to all of
them, with an additional suggestion that most of the seventeen matters were
not presented in the trial court and thus are waived in accordance with
Pa.R.A.P. 302(a). To this, Appellant responds that five of the errors were
specifically raised at the de novo trial, and that his failure to preserve the
remaining issues was “a direct consequence of discriminatory practices” in
-2- J-S22019-25
violation of the Americans with Disabilities Act (“ADA”), namely the court’s
“refusal to accommodate Appellant’s need for written support materials and
access to legal filings[.]” Appellant’s reply brief at 2 (pagination supplied).
Pursuant to Rule 1925(b)(4)(vii), issues not raised in a properly filed
statement are waived. However, for Rule 1925’s waiver provision to apply,
the trial court’s order must comply with Rule 1925(b)(3). See, e.g.,
Commonwealth v. Jones, 193 A.3d 957, 962 (Pa.Super. 2018). Further,
“[Pa.R.Crim.P.] 114(C)(2) provides that all orders and court notices must be
docketed, and the docket must contain the date the clerk received the order,
the date of the order, and the date and manner of service of the order or court
notice.” Commonwealth v. Davis, 867 A.2d 585, 586 (Pa.Super. 2005) (en
banc).
The trial court indicated that, after reviewing the docket entries, it was
“satisfied that Appellant [was] served with its September 17, 2024 [o]rder”
directing him to file a concise statement. See Statement in Lieu of Opinion,
12/24/24, at 2. We cannot agree with that assessment. The docket sheet
contained in the certified record reveals that the court’s 1925(b) order was
filed on September 17, 2024, and the following day served by eService only
upon the Berks County District Attorney’s Office and Colleen Dugan Schearer,
the ADA who represented the Commonwealth at the de novo trial. The docket
contains no notation that the order was served upon Appellant, let alone when
or in what manner. Consequently, although the court’s order complied with
-3- J-S22019-25
Rule 1925(b)(3), it was never properly entered and Appellant cannot be
penalized for failing to comply with it. See, e.g., Commonwealth v.
Chester, 163 A.3d 470, 472 (Pa.Super. 2017) (“Based upon the lack of
recordation in the docket, we are unable to determine the date of service of
the Order, as required under Criminal Rule 114, and cannot conclude that
Chester failed to comply with the PCRA court's directive to file a concise
statement.”).
For these reasons, this Court initially ordered that the case be remanded
for the trial court to restart the Rule 1925 process. Accord Davis, 867 A.2d
at 588 (remanding for a new Rule 1925(b) order to be properly docketed and
served, a new 1925(b) statement, and a new Rule 1925(a) opinion).
However, Appellant asked us to reconsider our mandate and instead proceed
with the Rule 1925(b) statement he submitted to the trial court on May 12,
2025, which was docked on May 19, 2025. We granted that request insofar
as we vacated our prior memorandum and order and have substituted the
instant memorandum decision.
However, we decline to accept Appellant’s further suggestion that we
proceed directly to examining the merits of his contentions based upon the
briefs before us rather than permit further filings from the trial court or the
Commonwealth. Given Appellant’s assertions about ADA violations and
omissions of material from the certified record, we find it inappropriate to
decide whether Rule 302(a) waiver applies to any of his issues absent any
-4- J-S22019-25
input from the trial court on those matters. Additionally, we will not fault the
Commonwealth for not addressing in its initial brief the propriety of the trial
court’s rulings when the trial court had not explained its reasoning for them.
Accordingly, we remand this case for the trial court to, within thirty days,
supply a Rule 1925(a) opinion advising this Court of its position on the issues
raised by Appellant. Once that has been transmitted to the parties and this
Court, the Superior Court prothonotary shall promptly issue a new briefing
schedule.1
Case remanded with instructions. Panel jurisdiction retained.
1 We caution Appellant that, “although this Court is willing to construe liberally
materials filed by a pro se litigant, a pro se appellant enjoys no special benefit.” Commonwealth v. Tchirkow, 160 A.3d 798, 804 (Pa.Super. 2017). “A pro se litigant must comply with the procedural rules set forth in the Pennsylvania Rules of the Court.” Smithson v. Columbia Gas of PA/NiSource, 264 A.3d 755, 760 (Pa.Super. 2021) (cleaned up). In preparing his new brief, we emphasize that Appellant must follow the dictates of Pa.R.A.P. 2117(c) (requiring that, within the statement of the case, the appellant shall state when and how the issues were raised in the trial court, and the way the court ruled upon them, with specific references to the record), along with Pa.R.A.P. 2119(a) (“The argument shall be divided into as many parts as there are questions to be argued[.]”) and (e) (statement of place of raising or preservation of issues). Failure to do so may result in this Court finding waiver or dismissing the appeal. See Pa.R.A.P. 2101 (“[I]f the defects are in the brief or reproduced record of the appellant and are substantial, the appeal or other matter may be . . . dismissed”).
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