Commonwealth v. Burton

973 A.2d 428, 2009 Pa. Super. 87, 2009 Pa. Super. LEXIS 105, 2009 WL 1315455

Opinions

OPINION BY

FREEDBERG, J.:

¶ 1 Appellant Michael Burton appeals from the judgment of sentence of five to ten years imprisonment imposed following his conviction on the charge of possession with intent to deliver cocaine. Appellant contends that the trial court erred in denying his motion to suppress. Appellant’s counsel filed a concise statement of the errors complained of on appeal as ordered by the trial court pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. However, the concise statement was filed one day beyond the deadline set by the trial court.

¶ 2 At the threshold, we are called upon to decide whether untimely filing of a Pa. R.A.P.1925 concise statement of the errors complained of on appeal results in waiver of all claims on appeal. We must determine whether the Supreme Court’s adoption of Rule 1925(c)(3), effective July 25, 2007, supersedes prior caselaw which required a finding of waiver when an untimely statement of errors complained of on appeal was filed.

¶ 3 The decision of the Supreme Court in Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998), established a bright-line rule for Rule 1925¹ compliance mandating a finding of waiver of all issues on appeal in the event of non-compliance with Rule 1925. In Commonwealth v. Butler, 571 Pa. 441, 812 A.2d 631 (2002), the Supreme Court held that such waiver is automatic and applies regardless of whether the Commonwealth raises the waiver issue and regardless of whether the trial court issued an opinion addressing the issues on appeal.

¶ 4 In Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005), a case involving untimely filing of a Rule 1925 concise statement, the Supreme Court reaffirmed the bright-line rule of Lord, expressing disapproval of exceptions to the Lord rule. In Castillo, counsel for appellant filed an untimely 1925 concise statement. This Court held that it would address the issues raised in the untimely filed concise statement because the trial court had addressed the issues in its 1925 opinion. The Supreme Court reversed, based on Lord and Butler, holding that untimely filing of the 1925 concise statement resulted in waiver of all issues on appeal and mandates dismissal of the appeal.

¶ 5 Effective July 25, 2007, the Supreme Court adopted significant amendments to Rule 1925,² including a provision to reme dy criminal defense counsel’s failure to file a 1925 statement as ordered. That provision, contained in Rule 1925(c)(3), states as follows:

(c) Remand.—

(3) 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 re-raand for the filing of a Statement nunc pro tunc and for the preparation and filing of an opinion by the judge.

Thus, contrary to the Lord/Butler brightline rule, under the amended rule, the remedy now for failure to file a 1925 concise statement is remand to allow nunc pro tunc filing of the statement. See Commonwealth v. Scott, 952 A.2d 1190, 1192 (Pa.Super.2008) (“... notwithstanding the decisions in Lord and Butler, pursuant to the amended version of Rule 1925, the complete failure by counsel to file a Rule 1925(b) statement, as ordered, is presumptively prejudicial and clear ineffectiveness, and this Court is directed to remand for the filing of a Rule 1925(b) statement nunc pro tunc and for the preparation and filing of an opinion by the trial judge.”). See also Commonwealth v. McBride, 957 A.2d 752, 756 (Pa.Super.2008) (“[cjounsel’s failure to file a statement as required under Rule 1925 deprived [ajppellant of meaningful review of his appeal and constitutes per se ineffectiveness”).

¶ 6 Filing of a Rule 1925 concise statement when ordered is a “prerequisite to appellate merits review” and is “elemental to an effective perfection of the appeal.” Commonwealth v. Halley, 582 Pa. 164, 870 A.2d 795, 800 (2005). Moreover, “the failure to file a Rule 1925(b) statement on behalf of a criminal defendant seeking to appeal his conviction and/or sentence, resulting in a waiver of all claims asserted on direct appeal, represents the sort of actual or constructive denial of assistance of counsel falling within the narrow category of circumstances in which prejudice is legally presumed.” Halley, 870 A.2d at 801. It is clear that “the failure to perfect a requested direct appeal is the functional equivalent of having no representation at all.” Halley, 870 A.2d at 801.

¶ 7 The Explanatory Note to revised Rule 1925 provides, in relevant part:

Paragraph (c)(3) This paragraph allows an appellate court to remand in criminal cases only when the appellant has completely failed to respond to an order to file a Statement.... Prior to these amendments of this rule, the appeal was quashed if no timely Statement was filed or served; however, because the failure to file and serve a timely Statement is a failure to perfect the appeal, it is presumptively prejudicial and “clear” ineffectiveness. See, e.g., Commonwealth v. Halley, 582 Pa. 164, 172, 870 A.2d 795, 801 (2005); Commonwealth v. West, 883 A.2d 654, 657 (Pa.Super.2005). Direct appeal rights have typically been restored through a post-conviction relief process, but when the ineffectiveness is apparent and per se, the court in West recognized that the more effective way to resolve such per se ineffectiveness is to remand for the filing of a Statement and opinion. See West, 883 A.2d at 657. The procedure set forth in West is codified in paragraph (c)(3). As the West court recognized, this rationale does not apply when waiver occurs due to the improper filing of a Statement. In such circumstances, relief may occur only through the post-conviction relief process and only upon demonstration by the appellant that, but for the deficiency of counsel, it was reasonably probable that the appeal would have been successful. An appellant must be able to identify per se ineffectiveness to secure a remand under this section, and any appellant who is able to demonstrate per se ineffectiveness is entitled to a remand. Accordingly, this paragraph does not raise the concerns addressed in Johnson v. Mississippi, 486 U.S. 578, 588-89 [108 S.Ct. 1981, 100 L.Ed.2d 575] (1988) (observing that where a rule has not been consistently or regularly applied, it is not — under federal law — -an adequate and independent state ground for affirming petitioner’s conviction.)

¶ 8 The complete failure to file the 1925 concise statement is per se ineffectiveness because it is without reasonable basis designed to effectuate the client’s interest and waives all issues on appeal. Likewise, the untimely filing is per se ineffectiveness because it is without reasonable basis designed to effectuate the client’s interest and waives all issues on appeal. Thus untimely filing of the 1925 concise statement is the equivalent of a complete failure to file. Both are per se ineffectiveness of counsel³ from which appellants are entitled to the same prompt relief.

¶ 9 The view that Rule 1925(c)(3) does not apply to untimely 1925 concise statements would produce paradoxical results. The attorney who abandons his client by failing to file a 1925 concise statement would do less of a disservice to the client than the attorney who files a 1925 concise statement beyond the deadline for filing. Clients each victimized by per se ineffectiveness would be treated differently; the abandoned client would receive remand, “the more effective way to resolve such per se ineffectiveness,”⁴ whereas the client whose lawyer files the 1925 concise statement late would be consigned to filing under the Post Conviction Relief Act, 42 Pa.C.S.A. § 9541 et seq.

¶ 10 Rule 1925(c)(3) was adopted by the Supreme Court to avoid unnecessary delay in the disposition on the merits of cases which results from per se ineffectiveness of appellant’s counsel. To accomplish the manifest purpose of the rule untimely filing of a 1925 concise statement ought to have no more severe consequence than a complete failure to file. Thus, 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. If the trial court did not have an adequate opportunity to do so, remand is proper.

¶ 11 Our holding does not apply when there has been an improper filing of a concise statement. As explained in the Explanatory Note to the revised Rule 1925(c)(3), “[a]n appellant must be able to identify per se ineffectiveness to secure a remand under this section, and any appellant who is able to demonstrate per se ineffectiveness is entitled to remand.” We simply hold that late filing of a 1925 statement constitutes such per se ineffectiveness. As further explained in the Explanatory Note, “this rationale does not apply when waiver occurs due to the improper filing of a Statement. In such circumstances, relief may occur only through the post-conviction relief process ... ”.

¶ 12 We are mindful that Article V, § 10, of the Constitution of Pennsylvania vests the power to prescribe general rules of procedure in the Supreme Court of Pennsylvania. Our holding neither contradicts nor expands the plain language of 1925(c)(3). Rather, we treat the late filing of.the 1925 concise statement as the equivalent of the failure to file such a statement.⁵

¶ 13 Remand is not necessary in this case because appellant’s counsel has filed a Rule 1925 concise statement setting forth the alleged error, and the trial court has filed an opinion addressing the issue presented in the 1925(b) concise statement. Accordingly, we will consider the merits of the issue presented on appeal.

¶ 14 Appellant sets forth the question presented for our review as follows:

Whether the lower court erred by denying the appellant’s motion to suppress where police stopped him for a motor vehicle violation and subsequently conducted an inventory search of the vehicle he was driving without granting him the mandated 24 hour waiting period prior to towing the vehicle?

Brief of Appellant at 5.

¶ 15 The standard of review of a denial of a suppression motion as set forth in Commonwealth v. Reppert, 814 A.2d 1196, 1200 (Pa.Super.2002) (en banc) is:

... whether the record supports the trial court’s factual findings and whether the legal conclusions drawn therefrom are free from error. Our scope of review is limited; we may consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.

Reppert, 814 A.2d at 1200 (internal citations and quotation marks omitted).

¶ 16 Applying this standard, the facts are as follows. On the afternoon of June 10, 2005, Officer Eric Riser and his partner, Officer Joseph Jacobs, were together on routine patrol in the area of 19th and Dauphin Streets in Philadelphia. At approximately 4:15 p.m., they observed a blue sedan bearing a Pennsylvania license plate without a registration sticker affixed to the license plate. As a consequence of this observation, the officers conducted a vehicle stop of the blue sedan. The blue sedan pulled over into the parking lane of 19th Street. Both officers approached the blue sedan; Officer Jacobs went to the driver’s side while Officer Riser went to the passenger side. Appellant was the driver and lone occupant of the blue sedan. Officer Jacobs requested a driver’s license, insurance and registration. Appellant produced identification, but not a driver’s license.

¶ 17 The officers ran a computer check and discovered that there was an active Philadelphia Traffic Court arrest warrant, described by the officers as a “scofflaw warrant,” for Appellant as a consequence of six outstanding tickets. The computer check also disclosed that Appellant was not a licensed driver. Police ultimately determined that Appellant was not the owner of the vehicle. Appellant was arrested on the outstanding warrant and placed in the rear of the patrol car. The officers called the parking authority so that the car could be towed. Because the car would be towed, Officer Riser conducted an inventory search of the vehicle. During that inventory search, Officer Riser observed a jacket in the trunk of the vehicle. Police asked Appellant if he wanted his jacket, and Appellant responded affirmatively. At that point, Officer Riser checked the jacket so that the jacket was deemed safe to return to Appellant. A baseball cap was in the sleeve of the jacket. A brown paper bag was inside the baseball cap. Officer Riser opened the bag and discovered 174 packets of cocaine. Appellant was charged with drug offenses including possession with intent to deliver.

¶ 18 Initially, Commonwealth contends that Appellant cannot prevail on his challenge to the search because he failed to demonstrate a legitimate expectation of privacy in the area searched or items seized. On a motion to suppress, “in order to prevail, the defendant, as a preliminary matter, must show that he had a privacy interest in the area searched.” Commonwealth v. Perea, 791 A.2d 427, 429 (Pa.Super.2002). The Commonwealth contends that Appellant failed to offer evidence that he had any cognizable interest in the vehicle; specifically, that the vehicle was not registered in Appellant’s name, and Appellant proffered no evidence that he was using the vehicle with the permission of the registered owner. We agree.

¶ 19 The law relating to a defendant’s standing and expectation of privacy in connection with a motion to suppress has been explained by our courts. A defendant moving to suppress evidence has the preliminary burden of establishing standing and a legitimate expectation of privacy. Standing requires a defendant to demonstrate one of the following: (1) his presence on the premises at the time of the search and seizure; (2) a possessory interest in the evidence improperly seized; (3) that the offense charged includes as an essential element the element of possession; or (4) a proprietary or possessory interest in the searched premises. A defendant must separately establish a legitimate expectation of privacy in the area searched or thing seized. Commonwealth v. Hawkins, 553 Pa. 76, 718 A.2d 265, 267 (1998); Commonwealth v. Black, 758 A.2d 1253, 1256-1258 (Pa.Super.2000); Commonwealth v. Torres, 564 Pa. 86, 764 A.2d 532, 542 (2001); Perea, 791 A.2d at 429. Whether defendant has a legitimate expectation of privacy is a component of the merits analysis of the suppression motion. See Commonwealth v. Millner, 585 Pa. 237, 888 A.2d 680, 691 (2005). The determination whether defendant has met this burden is made upon evaluation of the evidence presented by the Commonwealth and the defendant.

¶ 20 With more specific reference to an automobile search, this Court has explained as follows:

[Generally under Pennsylvania law, a defendant charged with a possessory offense has automatic standing to challenge a search. “However, in order to prevail, the defendant, as a preliminary matter, must show that he had a privacy interest in the area searched.”

An expectation of privacy is present when the individual, by his conduct, exhibits an actual (subjective) expectation of privacy and that the subjective expectation is one that society is prepared to recognize as reasonable. The constitutional legitimacy of an expectation of privacy is not dependent on the subjective intent of the individual asserting the right but on whether the expectation is reasonable in light of all the surrounding circumstances:

Pennsylvania law makes clear there is no legally cognizable expectation of privacy in a stolen automobile. Additionally, this Court has declined to extend an expectation of privacy to an “abandoned” automobile.

Commonwealth v. Jones, 874 A.2d 108, 118 (Pa.Super.2005) (internal citations omitted). In Jones, this Court held that the operator of a rental car did not have a privacy interest sufficient to challenge the constitutionality of a search of that rental car when the operator was not an authorized driver and the rental agreement had expired. In so holding, we said:

Instantly, Officer Ulshafer effectuated a routine traffic stop of Appellant’s automobile. Appellant does not challenge the validity of this stop. Officer Ulshafer approached Appellant and requested a driver’s license and registration and insurance information. Appellant gave Officer Ulshafer a non-driver identification card from New York. The informa: tion on this card could not be verified through a computer check. Further, Appellant gave Officer Ulshafer a rental agreement from Enterprise. An inspection of this agreement revealed that the return date had expired, Appellant was not the named lessee, the named lessee was not in the automobile, and Appellant was not authorized to drive the automobile.

Appellant and his passengers did not attempt to explain their connection to the authorized lessee of the automobile. Moreover, the passengers made inconsistent statements about various details concerning their out-of-state trip, which prompted Officer Ulshafer to ask Appellant for consent to search the vehicle. On these facts, Appellant cannot claim a reasonable expectation of privacy in the automobile. Further, Appellant’s subjective expectation of privacy was not reasonable where he was the operator of a rental car but not the named lessee, was not an authorized driver, the named lessee was not present in the vehicle, Appellant offered no explanation of his connection to the named lessee, and the return date for the rental car had passed. Under these circumstances, we conclude the trial court properly denied Appellant’s motion to suppress.

Jones, 874 A.2d at 119-120 (citations omitted).

¶ 21 In the instant case, the vehicle was not owned by Appellant. The vehicle was not registered in Appellant’s name. Appellant offered no evidence that he was using the vehicle with the authorization or permission of the registered owner. Appellant offered no evidence to explain his connection to the vehicle or his connection to the registered owner of the vehicle. Appellant failed to demonstrate that he had a reasonably cognizable expectation of privacy in a vehicle that he did not own, that was not registered to him, and for which he has not shown authority to operate.

¶ 22 Even if Appellant had shown that he had a reasonably cognizable expectation of privacy in the vehicle, we reject his contention that the evidence obtained during the inventory search should have been suppressed. Appellant’s sole contention is that the search violated 75 Pa. C.S.A. § 6309.2.⁶ That statute provides for the immobilization, towing, and storage of vehicles driven by an operator without operating privileges or without valid vehicle registration. The statute provides 24 hours from the time of the immobilization for provision of proof of registration, financial responsibility, and evidence that the operator has complied with pertinent provisions of Title 42 and the Vehicle Code. Upon receipt of such proof, appropriate judicial authority may issue a certificate of release of the vehicle. Further, § 6309.2(b)(3) provides:

If a certification of release is not obtained within 24 hours from the time the vehicle was immobilized, the vehicle shall be towed and stored by the appropriate towing and storing agent ...

¶ 23 Appellant’s sole contention⁷ is that the immediate towing and inventory search violated § 6309.2 because the police were required to wait 24 hours before towing and taking the vehicle. We reject this argument because the statute is inapplicable to the facts in this case. This is not a case involving immobilization of a vehicle merely because of driving without operating privileges or lack of proper registration of the vehicle. Rather, Appellant was placed under arrest on an outstanding warrant. In a case involving driving without operating privileges or proper registration of a vehicle, the legislature has chosen to afford operators and owners 24 hours to bring proof to a judicial authority that the vehicle is properly registered and that the operator is authorized to drive. In the instant case, because Appellant was arrested on an open warrant, the police did not know if or when the Appellant would be released from detention on the warrant. Further, at the time of the search, it was apparent that Appellant was not the owner of the vehicle; nor could he establish authorization to drive the vehicle. Under these circumstances, Appellant’s reliance on § 6309.2 is misplaced. Thus, Commonwealth v. Thurman, 872 A.2d 838 (Pa.Super.2005) which he cites is not controlling.⁸

¶ 24 Judgment of sentence AFFIRMED. Jurisdiction RELINQUISHED.

¶ 25 President Judge FORD ELLIOTT, Judge MUSMANNO, Judge LALLY-GREEN, Judge BENDER, Judge PANELLA, Judge DONOHUE and Judge ALLEN all join the majority opinion.

¶ 26 Judge STEVENS files a concurring opinion.

¶ 27 Judge LALLY-GREEN files a concurring opinion in which Judge MUSMANNO, Judge PANELLA and Judge FREEDBERG join.

Footnotes

1

. Prior to July 25, 2007, Pa.R.A.P.1925 provided, in pertinent part, as follows:

Rule 1925. Opinion in Support of Order

(a) General Rule. Upon receipt of the notice of appeal the judge who entered the order appealed from, if the reasons for the order do not already appear of record, shall forthwith file of record at least a brief statement, in the form of an opinion, of the reasons for the order, or for the rulings or other matters complained of, or shall specify in writing the place in the record where such reasons may be found.

(b) Direction to file statement of matters complained of. The lower court forthwith may enter an order directing the appellant to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal no later than 14 days after entry of such order. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of.

2

. Effective July 25, 2007, Pa.R.A.P.1925 provides, in pertinent part, as follows:

Rule 1925. Opinion in Support of Order

'h *.■ ⅜ ⅜ ⅜ ⅜

(b) Direction to file statement of errors complained of on appeal; instructions to the appellant and the trial court. — If the judge entering the order giving rise to the notice of appeal ("judge”) desires clarification of the errors complained of on appeal, the judge may enter an order directing the appellant to file of record in the trial court and serve on the judge a concise statement of the errors complained of on appeal ("Statement”).

(1) Filing and service. — Appellant shall file of record the Statement and concurrently shall serve the judge_

(2) Time for filing and service. — The judge shall allow the appellant at least 21 days from the date of the order's entry on the docket for the filing and service of the Statement. Upon application of the appellant and for good cause shown, the judge may enlarge the time period initially specified or permit an amended or supplemental Statement to be filed. In extraordinary circumstances, the judge may allow for the filing of a Statement or amended or supplemental Statement nunc pro tunc.

(3) Contents of order. — The judge’s order directing the filing and service of a Statement shall specify:

(i)the number of days after the date of entry of the judge's order within which the appellant must file and serve the Statement;

[[Image here]]

(iv) that any issue not properly included in the Statement timely filed and served pursuant to subdivision (b) shall be deemed waived.

(4) Requirements; waiver.—

(i) The Statement shall set forth only those rulings or errors that the appellant intends to challenge.

(ii) The Statement shall concisely identify each ruling or error that the appellant intends to challenge with sufficient detail to identify all pertinent issues for the judge. The judge shall not require the citation to authorities; however, appellant may choose to include pertinent authorities in the Statement.

(iii) The judge shall not require appellant or appellee to file a brief, memorandum of law, or response as part of or in conjunction with the Statement.

(iv) The Statement should not be redundant or provide lengthy explanations as to any error. Where non-redundant, non-frivolous issues are set forth in an appropriately concise manner, the number of errors raised will not alone be grounds for finding waiver.

(v) Each error identified in the Statement will be deemed to include every subsidiary issue contained therein which was raised in the trial court; this provision does not in any way limit the obligation of a criminal appellant to delineate clearly the scope of claimed constitutional errors on appeal.

⅜ * * * * *

(vii) Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived.

(c) Remand.—

(1) An appellate court may remand in either a civil or criminal case for a determination as to whether a Statement had been filed and/or served or timely filed and/or served.

(2) Upon application of the appellant and for good cause shown, an appellate court may remand in a civil case for the filing nunc pro tunc of a Statement or for amendment or supplementation of a timely filed and served Statement and for a concurrent supplemental opinion.

(3) 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.

⅜ ⅝ * ⅜ ⅝ *

3

. Rule 1925(b)(2) provides that on application and for good cause shown, the trial court is authorized to grant extensions of the time for filling and service of the 1925 concise statement. Thus, failure to file within the time ordered cannot be justified.

4

. See Explanatory Note to Rule 1925(c)(3) supra.

5

. Because this Court serves as the first, and usually the last, place of review of judgments of sentence and orders in collateral review proceedings, we are disinclined to create the prospect of more Post Conviction Relief Act proceedings where per se ineffectiveness of appellate counsel is evident of record.

6

. The statute was amended after the date of the search. We determine this case based on the statute as it existed when the search occurred.

7

. Appellant has not claimed that an inventory search would not have been justified after 24 hours had passed or that the search was performed in an improper manner.

8

. See also Commonwealth v. Henley, 909 A.2d 352 (Pa.Super.2006) (en banc).