Com. v. Taylor, E.

• Court: Superior Court of Pennsylvania
• Decided: January 13, 2023
• Docket: 159 WDA 2022
• Status: Unpublished

Opinion

J-S36023-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : EMMANUEL TAYLOR : : Appellee : No. 159 WDA 2022

Appeal from the Order Entered January 31, 2022 In the Court of Common Pleas of Blair County Criminal Division at No(s): CP-07-CR-0000917-2018

BEFORE: STABILE, J., KING, J., and COLINS, J.*

MEMORANDUM BY KING, J.: FILED: JANUARY 13, 2023

Appellant, the Commonwealth of Pennsylvania, appeals from the order

entered in the Blair County Court of Common Pleas, which precluded the

Commonwealth from introducing evidence of the prior record of Appellee,

Emmanuel Taylor.1 For the following reasons, we remand for the trial court

to issue a supplemental opinion addressing those issues raised in the

Commonwealth’s untimely-filed concise statement of errors complained of on

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* Retired Senior Judge assigned to the Superior Court.

1 The Commonwealth appealed pursuant to Pa.R.A.P. 311(d) and certified that the order substantially handicapped the prosecution. We note that the Commonwealth’s certification alone is sufficient to establish our jurisdiction over the interlocutory order. See Commonwealth v. Moser, 999 A.2d 602, 605 (Pa.Super. 2010), appeal denied, 610 Pa. 595, 20 A.3d 485 (2011) (noting Superior Court may not inquire into grounds for Commonwealth’s good faith certification). J-S36023-22

appeal.

The facts and procedural history of this case are as follows. Appellee

was arrested in April 2018 and charged with various drug, theft, and firearms

offenses. On October 6, 2020, the court severed the firearms charges

(possession of a firearm prohibited and firearms not to be carried without a

license) from the other charges. After the court granted several continuances

for both the Commonwealth and Appellee, the case proceeded to trial on the

firearms offenses on January 31, 2022.

On the morning of trial, Appellee objected to the Commonwealth’s

introduction of a copy of Appellee’s prior record from Maryland because the

documents were not self-authenticating under Pennsylvania Rule of Evidence

902. (N.T. Trial, 1/31/22, at 5-6). The trial court found that the record from

Maryland was not self-authenticating and prohibited the Commonwealth from

introducing it. (Id. at 18-19). The court also held that to use the National

Criminal Information Center (“NCIC”) report to prove Appellee’s prior record,

the Commonwealth would be required to produce a witness to confirm that

the criminal convictions in Maryland belonged to Appellee. (Id. at 19). The

court noted that the Commonwealth still had the opportunity to call such a

witness. (Id.) The Commonwealth then notified the court that it planned to

take an interlocutory appeal pursuant to Rule 311(d). Thereafter, the

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Commonwealth filed a notice of appeal.2

After receiving the notice of appeal, the trial court issued an order

docketed February 16, 2022, directing the Commonwealth to file and serve a

statement of errors complained of on appeal within 21 days of the date of the

order. The order noted that any issue not included in the statement and timely

filed and served pursuant to Pennsylvania Rule of Appellate Procedure 1925(b)

shall be deemed waived. (Order, 2/16/22). The docket entry for this order

confirms that it was served upon the Blair County District Attorney’s Office on

February 16, 2022 via electronic service.3

2Upon review of the notice of appeal, this Court issued a Rule to Show Cause why the notice of appeal should not be quashed because there was not a final order entered on the trial court docket concerning the court’s ruling. The Commonwealth filed a response agreeing that there was no formal written order but arguing that the oral order was appealable where no party challenged the lack of a written order.

In making this argument, the Commonwealth relied on this Court’s decision in Commonwealth v. Segarra, 228 A.3d 943 (Pa.Super. 2020), appeal denied, ___ Pa. ___, 237 A.3d 975 (2020), which recognized that in some instances an oral order may be valid even if not filed or entered on the docket. Id. at 949. In Segarra, this Court held that where the trial court’s order was unequivocal on the record, appeared on the docket, and no party challenged the lack of a written order, the order was valid.

Here, the trial court’s order precluding the Commonwealth’s evidence was unequivocal on the record, and no party challenged the lack of a written order. Although the court’s verbal ruling was not recorded on the docket, in the interests of judicial economy, we will procced with our analysis.

3The notice of electronic filing satisfies the service requirements of Rules of Criminal Procedure 114(B) and 576(b). See Pa.R.Crim.P. 576.1(H)(1).

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The Commonwealth filed its concise statement on March 21, 2022,

which was beyond the requisite 21-day period. On April 4, 2022, the trial

court issued its Rule 1925(a) opinion, in which it concluded that the concise

statement was untimely filed, rendering the Commonwealth’s issues waived

on appeal.

Preliminarily, it is well settled that only issues properly raised in a timely

Rule 1925(b) statement are preserved for appellate review. See

Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005); Pa.R.A.P.

1925(b)(4)(vii) (stating that “[i]ssues not included in the Statement and/or

not raised in accordance with the provisions of this paragraph (b)(4) are

waived”). “If there has been an untimely filing, this Court may decide the

appeal on the merits if the trial court had adequate opportunity to prepare an

opinion addressing the issues being raised on appeal.” Commonwealth v.

Burton, 973 A.2d 428, 433 (Pa.Super. 2009).

Notably, this Court has held that where “the Commonwealth has filed a

late Rule 1925(b) statement, we will…allow for remand to the trial court or

address the issues raised where the trial court had the first opportunity to

address them.” Commonwealth v. Grohowski, 980 A.2d 113, 115

(Pa.Super. 2009) (holding that “the rule enunciated in Burton, supra,

permitting the late filing of a 1925(b) statement applies to the Commonwealth

as well as to the represented criminal defendant”). See also

Commonwealth v. Dodds, No. 2222 EDA 2018 (Pa.Super. filed Sept. 24,

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2020) (unpublished memorandum),4 appeal denied, ___ Pa. ___, 253 A.3d

219 (2021) (applying Grohowski, supra and holding that “because this Court

has permitted the late filing of Rule 1925(b) statements by counseled

defendants, we must also permit the Commonwealth’s late filing of its Rule

1925(b) statement”).

Under these circumstances, we remand to the trial court to address the

issues raised in the Commonwealth’s late Rule 1925(b) statement. See

Burton, supra; Grohowski, supra. The trial court shall prepare its

supplemental Rule 1925(a) opinion within 30 days of the filing date of this

decision. The Commonwealth shall have 30 days after receipt of the

supplemental Rule 1925(a) opinion to file a supplemental brief. Appellee shall

have 30 days thereafter to file a responsive supplemental brief.

Case remanded with instructions. Panel jurisdiction is retained.

Judge Colins joins this memorandum.

Judge Stabile files a concurring memorandum.

4See Pa.R.A.P. 126(b) (stating we may rely on unpublished decisions of this Court filed after May 1, 2019 for their persuasive value).

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