Com. v. Simon, T.

• Court: Superior Court of Pennsylvania
• Decided: December 12, 2014
• Docket: 1161 EDA 2014
• Status: Unpublished

Opinion

J-S70028-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : TYUAN SIMON, : : Appellant : No. 1161 EDA 2014

Appeal from the Judgment of Sentence Entered September 20, 2013 in the Court of Common Pleas of Montgomery County, Criminal Division at No(s): CP-46-CR-0007840-2012

BEFORE: LAZARUS, MUNDY, and STRASSBURGER,* JJ. FILED DECEMBER 12, 2014 CONCURRING MEMORANDUM BY STRASSBURGER, J.:

I join the Majority Memorandum. I write separately because the

Majority has identified a conflict in Superior Court case law. Majority

Memorandum at 9 n.6.

I, like the Majority, agree with the cases which hold that, if an

appellant sua sponte files a Pa.R.A.P. 1925(b) statement, then the appellant

only preserves the issues raised therein for appeal. See, e.g.,

Commonwealth v. Nobles, 941 A.2d 50, 52 (Pa. Super. 2008). However,

in conflict with these cases is Commonwealth v. Antidormi, 84 A.3d 736,

735, 745 n.7 (Pa. Super. 2014), which concludes that the requirements of

Pa.R.A.P. 1925(b) are not invoked when a trial court has not ordered an

appellant to file a 1925(b) statement, but the appellant nonetheless files

such a statement. In my view, this Court should review this issue en banc in

* Retired Senior Judge assigned to the Superior Court. J-S70028-14

order to resolve this conflict in the law. See Commonwealth v. Robinson,

931 A.2d 15, 19 (Pa. Super. 2007) (en banc) (“One function of en banc

review is to harmonize or overrule prior precedent if necessary.”).

Judge Lazarus joins this concurring memorandum.

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