Com. v. Moon, T.

• Court: Superior Court of Pennsylvania
• Decided: September 12, 2019
• Docket: 1375 MDA 2018
• Status: Unpublished

Opinion

J-S47009-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TIRRELL ANDRE MOON : : Appellant : No. 1375 MDA 2018

Appeal from the Judgment of Sentence Entered July 17, 2018 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0002070-2017

BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.

JUDGMENT ORDER BY DUBOW, J.: FILED SEPTEMBER 12, 2019

Appellant, Tirrell Andre Moon, appeals from the July 17, 2018 Judgment

of Sentence entered in the Dauphin County Court of Common Pleas following

his non-jury conviction of one count each of Possession of Firearm Prohibited,

Firearms Not to be Carried Without a License, Resisting Arrest, Possession of

Drug Paraphernalia, and two counts of Possession of a Controlled Substance.1

After careful review, we affirm.

The relevant facts and procedural history are, briefly, as follows. On

May 8, 2018, the trial court convicted Appellant of the above crimes. The

court deferred sentencing pending a pre-sentence investigation.

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1 18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), and 5104, and 35 P.S. §§ 780- 113(a)(32) and 780-113(a)(16), respectively. J-S47009-19

Following consideration of the Pre-Sentence Investigation Report and

argument of counsel, the court sentenced Appellant to an aggregate term of

four to eight years’ incarceration,2 and a consecutive term of five years’

probation. Appellant did not file a Post-Sentence Motion.

Appellant timely appealed. On August 20, 2018, the trial court ordered

Appellant to file a Pa.R.A.P. 1925(b) Statement within 21 days. More than 21

days later, on October 11, 2018, Appellant, through Attorney Wendy J. F.

Grella, filed an “Unopposed Motion for Extension of Time to file Statement of

Matters Complained of Pursuant to Pa.R.A.P. 1925(b).” The trial court granted

Appellant’s Motion on October 15, 2018, and ordered Appellant to file a Rule

1925(b) Statement within 30 days. Appellant failed to file a Rule 1925(b)

Statement within 30 days of October 15, 2018, and, instead, sought, and

received, two more extensions of time.

On January 29, 2019, Attorney Grella filed an “Unopposed Motion to

Withdraw as Counsel and Request for Extension of Time.” On February 4,

2019, the court granted Attorney Grella’s Motion to Withdraw as counsel and

filed a Pa.R.A.P. 1925(a) Opinion. In its February 4, 2019 Rule 1925(a)

Opinion, the court indicated it would not file a substantive Memorandum

Opinion because Appellant’s counsel had filed a Statement of Intention to file

an Anders/McClendon Brief, in accordance with Pa.R.A.P. 1925(c)(4). This

2 This is a mitigated range sentence.

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Court’s review of the record reveals that Attorney Grella filed neither a Rule

1925(b) nor a Rule 1925(c)(4) Statement.

On March 13, 2019, this Court vacated the trial court’s February 4, 2019

Order granting Attorney Grella’s Motion to Withdraw as the filing of the instant

appeal had divested the trial court of jurisdiction. This Court further directed

counsel to “comply with the procedural requirements of Anders v. California,

386 U.S. 738 (1967), Commonwealth v. McClendon, 434 A.2d 1185 (Pa.

1981), and their progeny by filing an application to withdraw accompanied by

an Anders brief in this Court, providing copies of the same to Appellant, and

advising Appellant of his rights pursuant to Commonwealth v. Millisock,

873 A.2d 748 (Pa. Super. 2005).” Order, 3/13/19. Counsel did not, however,

file an Anders Brief. Instead, she filed an advocate’s Brief, in which Appellant

challenges the discretionary aspects of his sentence and raises a hybrid

sufficiency and weight of the evidence claim. See Appellant’s Brief at 5. For

the following reasons we decline to reach the merits of Appellant’s issues.

Pennsylvania Rule of Appellate Procedure 1925(c)(3) provides:

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). In Commonwealth v. Scott, this Court held that

where the “[a]ppellant has completely failed to file a Rule 1925(b) statement

as directed . . . counsel has been per se ineffective.” Commonwealth v.

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Scott, 952 A.2d 1190, 1192 (Pa. Super. 2008). In Scott, this court remanded

for preparation of a Rule 1925(b) Statement and a Rule 1925(a) Opinion

because the trial court had not prepared a Rule 1925(a) Opinion. Id.

Here, appellate counsel disregarded the trial court’s Orders directing her

to file a concise statement pursuant to Pa.R.A.P. 1925, and, therefore, has

been per se ineffective. Although the trial court filed a Rule 1925(a) Opinion,

it did not address the issues that Appellant seeks to raise on appeal because

appellate counsel failed to alert the trial court to the errors complained of on

appeal. Therefore, we are constrained to remand to the trial court for counsel

to file a Rule 1925(b) Statement nunc pro tunc within 30 days of this Order

and for the trial court to file a responsive Rule 1925(a) Opinion within 30 days

thereafter.

Case remanded. Jurisdiction retained.

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