Commonwealth v. Parrish, M., Aplt.
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Opinion
[J-61-2019] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 733 CAP : Appellee : Appeal from the Order dated July 14, : 2016 in the Court of Common Pleas, : Monroe County, Criminal Division at v. : No. CP-45-CR-0001137-2009. : : SUBMITTED: June 19, 2019 MICHAEL JOHN PARRISH, : : Appellant :
OPINION
JUSTICE TODD DECIDED: January 22, 2020 In this capital case, Appellant Michael John Parrish appeals the order of the
Monroe County Court of Common Pleas denying his petition for relief pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541 et seq. Following our request for
supplemental briefing, and after careful review, we hold that Appellant’s Statement of
Matters Complained of on Appeal filed pursuant to Pa.R.A.P. 1925(b) (“Rule 1925(b)
statement”) is so vague as to render all of his claims waived for purposes of this appeal.
Additionally, we hold that appellate counsel’s filing of a woefully deficient statement, one
which precludes merits review of all appellate issues, constitutes ineffective assistance
of counsel per se, warranting reinstatement of Appellant’s right to file a Rule 1925(b)
statement nunc pro tunc. Accordingly, we remand to the PCRA court for further
proceedings consistent with this opinion. I. Factual Background.
This appeal arises from the July 6, 2009 double murder of Appellant’s girlfriend,
Victoria Adams, and their 19-month-old son, Sidney Parrish.1 Appellant, Victoria, and
Sidney lived in a Monroe County apartment, and, on the day of the murders, Appellant
remained at the apartment with Sidney while Victoria spent the day with family and
friends. As the day proceeded into evening, Appellant became worried that Victoria would
not return home in time to give Sidney certain medications he required,2 a task Appellant
did not know how to perform. Appellant was additionally concerned that Victoria might
be pursuing a romantic relationship with someone else. That night, Appellant made a
series of increasingly frequent and agitated calls to Victoria’s mobile phone, which she
initially answered, but later ignored. Later in the evening, Victoria and her companions
went to a bar, where Victoria disclosed to them that Appellant was abusive and that she
wished to end their relationship. Victoria asked three of her companions — her brother,
Keith Adams, her cousin, James Ahern, and a friend, Christopher Ramos — to
accompany her to the apartment, so that she could retrieve Sidney and her personal
belongings, and end the relationship.
The three men agreed, and the group drove to the apartment. Victoria went inside
while her brother Keith, Ahern, and Ramos waited in the car. Initially, Appellant emerged
from the apartment brandishing a handgun and threatening Ahern with it, but, after Ahern
lied that he, too, was armed, Appellant retreated inside. Shortly thereafter, gun flashes
and gunshots emanated from the apartment. The three men attempted to enter the
apartment to assist Victoria, but, as they approached the apartment, Appellant retrieved
1 The factual history of this case was set forth in greater detail in our prior opinion issued in Appellant’s direct appeal. See Commonwealth v. Parrish, 77 A.3d 557 (Pa. 2013). 2 Sidney had recently undergone a heart transplant, and he required anti-rejection
medications, which Victoria administered to him at approximately 8 p.m. each night.
[J-61-2019] - 2 a shotgun and began firing at them, prompting them to flee and contact emergency
services. Ultimately, Appellant vacated the apartment, and, approximately 30 to 40
minutes later, the men returned to the apartment, performed a cursory search, and found
nothing amiss.
Nearly an hour later, Pennsylvania State Police arrived and entered the apartment,
and, during a search of the premises, discovered Victoria’s and Sidney’s bodies in a back
bedroom. Each had been shot multiple times. Appellant became the object of a multi-
state manhunt, and he left Pennsylvania. He was later arrested in New Hampshire, where
he was subjected to a search that yielded a .357 Glock semi-automatic handgun, which
forensic tests revealed to have been consistent with the firearm that fired the 13 spent
cartridge casings recovered from the crime scene. While being questioned by police,
Appellant waived his Miranda3 rights and confessed to killing Victoria and Sidney,
indicating that the events of the evening provoked him into such a rage that he fired a
warning shot at the ceiling to get Victoria’s attention. However, he recalled that he was
so angry that he then “lost it” and shot Victoria while she was holding Sidney, inadvertently
striking him, which caused Appellant to become even more furious such that he began to
“spray” bullets at Victoria and Sidney, firing alternating series of shots at both until he ran
out of ammunition. Parrish, 77 A.3d at 560.
Appellant was charged with two counts of first-degree murder,4 and, initially, was
represented by two attorneys with the Monroe County Public Defender’s Office (“PDO”)
– William Sayer, Esq., and James Gregor, Esq. On August 18, 2009, the Commonwealth
filed notice of its intent to seek the death penalty, alleging, with respect to each count of
first-degree murder, the aggravating circumstances that (1) Appellant committed another
3 Miranda v. Arizona, 384 U.S. 436 (1966). 4 18 Pa.C.S. § 2502(a).
[J-61-2019] - 3 offense subject to the death penalty or life imprisonment, and (2) Appellant committed
another murder.5 On April 21, 2010, Appellant, via Attorneys Sayer and Gregor,
attempted to tender a guilty plea to both counts, but, at an ensuing colloquy, Attorney
Sayer elicited Appellant’s statement that he blacked out during the shooting, which the
trial court viewed as undermining the notion that Appellant could have formed the
requisite intent to commit first-degree murder, and so the trial court rejected the guilty
plea. Two days later, Attorney Sayer withdrew his appearance and was replaced by
another attorney — the chief public defender of that office, Wieslaw Niemoczynski, Esq.
On July 19, 2010, Appellant tendered a guilty plea to both counts, which the trial court
accepted, but, on September 26, 2011, Appellant asserted his innocence, and, on that
basis, was permitted to withdraw his guilty pleas.
On March 19, 2012, Appellant proceeded to jury selection, and, on March 26,
2012, the guilt phase of his trial began, at which the Commonwealth elicited evidence of
the foregoing sequence of events culminating in the murders. Appellant, for his part, did
not dispute he committed the killings, but presented a defense based on the theory that
his anxiety over Sidney’s need for his medication, Victoria’s possible infidelity, and a
violent provocation by Victoria’s companions caused him to become so upset and
enraged that he could not form the requisite intent to commit first-degree murder.
Appellant was convicted of both counts of first-degree murder.
5See 42 Pa.C.S. § 9711(d)(10), (d)(11). In this regard, the murder of Victoria served as an aggravating factor for the murder of Sidney, and vice-versa.
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[J-61-2019] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 733 CAP : Appellee : Appeal from the Order dated July 14, : 2016 in the Court of Common Pleas, : Monroe County, Criminal Division at v. : No. CP-45-CR-0001137-2009. : : SUBMITTED: June 19, 2019 MICHAEL JOHN PARRISH, : : Appellant :
OPINION
JUSTICE TODD DECIDED: January 22, 2020 In this capital case, Appellant Michael John Parrish appeals the order of the
Monroe County Court of Common Pleas denying his petition for relief pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541 et seq. Following our request for
supplemental briefing, and after careful review, we hold that Appellant’s Statement of
Matters Complained of on Appeal filed pursuant to Pa.R.A.P. 1925(b) (“Rule 1925(b)
statement”) is so vague as to render all of his claims waived for purposes of this appeal.
Additionally, we hold that appellate counsel’s filing of a woefully deficient statement, one
which precludes merits review of all appellate issues, constitutes ineffective assistance
of counsel per se, warranting reinstatement of Appellant’s right to file a Rule 1925(b)
statement nunc pro tunc. Accordingly, we remand to the PCRA court for further
proceedings consistent with this opinion. I. Factual Background.
This appeal arises from the July 6, 2009 double murder of Appellant’s girlfriend,
Victoria Adams, and their 19-month-old son, Sidney Parrish.1 Appellant, Victoria, and
Sidney lived in a Monroe County apartment, and, on the day of the murders, Appellant
remained at the apartment with Sidney while Victoria spent the day with family and
friends. As the day proceeded into evening, Appellant became worried that Victoria would
not return home in time to give Sidney certain medications he required,2 a task Appellant
did not know how to perform. Appellant was additionally concerned that Victoria might
be pursuing a romantic relationship with someone else. That night, Appellant made a
series of increasingly frequent and agitated calls to Victoria’s mobile phone, which she
initially answered, but later ignored. Later in the evening, Victoria and her companions
went to a bar, where Victoria disclosed to them that Appellant was abusive and that she
wished to end their relationship. Victoria asked three of her companions — her brother,
Keith Adams, her cousin, James Ahern, and a friend, Christopher Ramos — to
accompany her to the apartment, so that she could retrieve Sidney and her personal
belongings, and end the relationship.
The three men agreed, and the group drove to the apartment. Victoria went inside
while her brother Keith, Ahern, and Ramos waited in the car. Initially, Appellant emerged
from the apartment brandishing a handgun and threatening Ahern with it, but, after Ahern
lied that he, too, was armed, Appellant retreated inside. Shortly thereafter, gun flashes
and gunshots emanated from the apartment. The three men attempted to enter the
apartment to assist Victoria, but, as they approached the apartment, Appellant retrieved
1 The factual history of this case was set forth in greater detail in our prior opinion issued in Appellant’s direct appeal. See Commonwealth v. Parrish, 77 A.3d 557 (Pa. 2013). 2 Sidney had recently undergone a heart transplant, and he required anti-rejection
medications, which Victoria administered to him at approximately 8 p.m. each night.
[J-61-2019] - 2 a shotgun and began firing at them, prompting them to flee and contact emergency
services. Ultimately, Appellant vacated the apartment, and, approximately 30 to 40
minutes later, the men returned to the apartment, performed a cursory search, and found
nothing amiss.
Nearly an hour later, Pennsylvania State Police arrived and entered the apartment,
and, during a search of the premises, discovered Victoria’s and Sidney’s bodies in a back
bedroom. Each had been shot multiple times. Appellant became the object of a multi-
state manhunt, and he left Pennsylvania. He was later arrested in New Hampshire, where
he was subjected to a search that yielded a .357 Glock semi-automatic handgun, which
forensic tests revealed to have been consistent with the firearm that fired the 13 spent
cartridge casings recovered from the crime scene. While being questioned by police,
Appellant waived his Miranda3 rights and confessed to killing Victoria and Sidney,
indicating that the events of the evening provoked him into such a rage that he fired a
warning shot at the ceiling to get Victoria’s attention. However, he recalled that he was
so angry that he then “lost it” and shot Victoria while she was holding Sidney, inadvertently
striking him, which caused Appellant to become even more furious such that he began to
“spray” bullets at Victoria and Sidney, firing alternating series of shots at both until he ran
out of ammunition. Parrish, 77 A.3d at 560.
Appellant was charged with two counts of first-degree murder,4 and, initially, was
represented by two attorneys with the Monroe County Public Defender’s Office (“PDO”)
– William Sayer, Esq., and James Gregor, Esq. On August 18, 2009, the Commonwealth
filed notice of its intent to seek the death penalty, alleging, with respect to each count of
first-degree murder, the aggravating circumstances that (1) Appellant committed another
3 Miranda v. Arizona, 384 U.S. 436 (1966). 4 18 Pa.C.S. § 2502(a).
[J-61-2019] - 3 offense subject to the death penalty or life imprisonment, and (2) Appellant committed
another murder.5 On April 21, 2010, Appellant, via Attorneys Sayer and Gregor,
attempted to tender a guilty plea to both counts, but, at an ensuing colloquy, Attorney
Sayer elicited Appellant’s statement that he blacked out during the shooting, which the
trial court viewed as undermining the notion that Appellant could have formed the
requisite intent to commit first-degree murder, and so the trial court rejected the guilty
plea. Two days later, Attorney Sayer withdrew his appearance and was replaced by
another attorney — the chief public defender of that office, Wieslaw Niemoczynski, Esq.
On July 19, 2010, Appellant tendered a guilty plea to both counts, which the trial court
accepted, but, on September 26, 2011, Appellant asserted his innocence, and, on that
basis, was permitted to withdraw his guilty pleas.
On March 19, 2012, Appellant proceeded to jury selection, and, on March 26,
2012, the guilt phase of his trial began, at which the Commonwealth elicited evidence of
the foregoing sequence of events culminating in the murders. Appellant, for his part, did
not dispute he committed the killings, but presented a defense based on the theory that
his anxiety over Sidney’s need for his medication, Victoria’s possible infidelity, and a
violent provocation by Victoria’s companions caused him to become so upset and
enraged that he could not form the requisite intent to commit first-degree murder.
Appellant was convicted of both counts of first-degree murder.
5See 42 Pa.C.S. § 9711(d)(10), (d)(11). In this regard, the murder of Victoria served as an aggravating factor for the murder of Sidney, and vice-versa. The Commonwealth also alleged, with respect to Appellant’s murder of Sidney, the aggravating circumstance that Appellant had killed a victim less than 12 years of age. See id. § 9711(d)(16). However, as explained in the context of Appellant’s direct appeal, the record reflects that the jury did not find this aggravator, possibly due to a clerical error. See Parrish, 77 A.3d at 560 n.3. Thus, it is not relevant herein.
[J-61-2019] - 4 On April 2, 2012, the penalty phase of Appellant’s trial began. With respect to both
counts of first-degree murder, the jury found: (1) both of the aforementioned aggravating
circumstances; and (2) the mitigating circumstances that Appellant had no significant
history of prior convictions; that Appellant committed the murders under the influence of
extreme emotional disturbance and distress; and the “catchall” mitigator with respect to
Appellant’s character and the circumstances of his offense.6 The jury further found, again
with respect to both counts of first-degree murder, that the aggravating circumstances
outweighed the mitigating circumstances, and it recommended imposition of the death
penalty. On May 15, 2012, Appellant proceeded to a sentencing hearing, at which the
trial court imposed a sentence of death. Afterwards, Appellant was imprisoned in the
State Correctional Institution in Greene County (“SCI-Greene”), where he remains.
Appellant did not file a notice of appeal, but the Clerk of Courts of Monroe County
notified this Court of his sentence of death due to our independent, automatic review of
cases involving the imposition of such sentences.7 The trial court, ostensibly of the view
that such notice required Appellant to actually litigate an appeal to obtain such review,
directed him to file a Rule 1925(b) statement. Appellant did so, through trial counsel,
raising claims asserting improper prosecutorial comment and ineffective assistance of
counsel. Appellant then filed a brief with this Court presenting these claims.
On September 25, 2013, in a unanimous opinion, we found Appellant’s failure to
file a notice of appeal waived any claims unassociated with our automatic capital review
of the sufficiency of the evidence supporting the verdict and the sentence of death. See
Parrish, 77 A.3d at 560-61. After conducting that mandatory review, we found that
Appellant’s convictions were supported by sufficient evidence, and that the sentences of
death were supported by sufficient evidence proving at least one aggravating factor. We
6 See 42 Pa.C.S. § 9711(e)(1), (2), & (8). 7 See Pa.R.A.P. 1941.
[J-61-2019] - 5 also concluded that the death sentences were not the product of passion, prejudice, or
any other arbitrary factor, and, accordingly, we affirmed them. See id. at 561-62.
Appellant petitioned for a writ of certiorari from the United States Supreme Court, which
was denied on May 19, 2014. See Parrish v. Pennsylvania, 572 U.S. 1123 (2014) (order).
On August 29, 2014, Appellant filed a pro se petition seeking relief under the
PCRA. President Judge Margherita Patti-Worthington (“PCRA court”) appointed Attorney
Brian Ganglione to represent Appellant to assist him in the preparation of an amended
PCRA petition; however, Attorney Ganglione was granted leave to withdraw shortly
thereafter because of a conflict due to his representation of James Ahern, one of the
aforementioned witnesses to the murder. Consequently, the PCRA court appointed
Attorney Robert Saurman to represent Appellant, and it directed Attorney Saurman to file
an amended PCRA petition on or before January 12, 2015.
Subsequently, Attorney Saurman requested a continuance to prepare the petition.
He also requested the allocation of funds from the PCRA court for the appointment of a
mental health expert to evaluate the defendant and for a mitigation expert to review the
performance of the mitigation expert used by trial counsel, Dr. Deborah Belknap, as well
as additional funds for him to travel to SCI-Greene and meet with Appellant. The PCRA
court denied the request for funds for the mental health expert, and travel expenses, but
allocated $750.00 for the services of a mitigation expert, which Attorney Saurman used
to retain Dr. Juliet Yackel. The PCRA court did indicate, however, that Attorney Saurman
could again seek leave of court to obtain additional funding for the retention of experts
once he had prepared an amended petition identifying the issues to be considered, and
after he created a schedule of when the experts would be needed during subsequent
proceedings.
[J-61-2019] - 6 Attorney Saurman filed a five-page amended PCRA petition on February 15, 2015,
raising a number of claims that Appellant’s trial counsel was ineffective for: failing to file
pretrial motions to “test the legality of the evidence to be introduced against him at trial,”
and to obtain all available discoverable material; failing to file a motion in limine to exclude
allegedly inflammatory autopsy photos; failing to properly qualify jurors for the penalty
phase of the trial; and failing to retain a mental health expert to diagnose Appellant’s
mental health and alleged disabilities and determine how they may have contributed to
his behavior and reactions on the night of the homicide. Amended PCRA Petition,
2/17/15, at 2-3. Additionally, Attorney Saurman also asserted that trial counsel was
ineffective for failing to prepare his mitigation expert, Dr. Belknap, for trial, and to have
her question jurors about the death penalty and their fitness to serve during the selection
process. Id. at 3. These claims were presented in the petition as general allegations
without citation to caselaw, constitutional provisions, or other legal authority, and were
devoid of supporting factual development. Further, Attorney Saurman made no request
for additional funding for the retention of experts, nor did he file the required schedule
with the PCRA court indicating if and when expert testimony would be necessary. The
PCRA court scheduled an evidentiary hearing on the amended PCRA petition for July 27,
2015.
Before that hearing, on April 20, 2015, Appellant filed a counseled, 358-page
petition for a writ of habeas corpus with the Federal District Court for the Middle District
of Pennsylvania, which remained pending on the date set for the PCRA evidentiary
hearing.8 On that date, Attorney Saurman filed a motion for a continuance, averring that
he had been unable to meet with Appellant because the PCRA court failed to provide him
8In this proceeding, Appellant was represented by the Assistant Federal Public Defender, Kelly D. Miller, and private counsel, Jennifer Merrigan, Esquire.
[J-61-2019] - 7 with funding to travel to SCI-Greene for that purpose. For his part, Appellant related to
the PCRA court that he was dissatisfied with Attorney Saurman’s representation for the
reason that they had been unable to communicate because Attorney Saurman did not
visit him in prison as he had promised, nor did Attorney Saurman respond to Appellant’s
letters to him regarding the case. N.T. PCRA Hearing, 7/27/15, at 7-8.
Along with the motion to continue, Attorney Saurman simultaneously filed another
amended PCRA petition, which, like the first, was five pages long. It raised an additional
claim that trial counsel had a conflict of interest and should not have represented
Appellant because he was a member of the same public defender’s office, which was
also representing two witnesses to the crime — James Ahern and Christopher Ramos.
Attorney Saurman did not, however, present any developed legal argument as to how this
fact, if true, entitled him to relief under the PCRA. In this second amended PCRA petition,
Attorney Saurman also attempted to incorporate, by reference, Appellant’s habeas corpus
petition that he had attached in toto to the petition. The PCRA court denied the motion
for a continuance, and also dismissed, in open court, the portion of the second amended
PCRA petition which attempted to incorporate the attached habeas corpus petition by
reference. The court ruled that such attempted incorporation was not appropriate. Id. at
177-78.
The PCRA court proceeded to a hearing at which Appellant’s trial counsel,
Attorneys Niemoczynski and Gregor, testified, as did Appellant’s trial mitigation specialist
Dr. Belknap. The hearing was continued until November 3, 2015, so that Dr. Yackel could
testify as to her evaluation of Dr. Belknap’s performance.
Thereafter, Attorney Saurman filed a third amended PCRA petition on September
21, 2015 in which he presented additional issues raised in Appellant’s habeas corpus
[J-61-2019] - 8 petition attacking the effectiveness of trial counsel’s representation.9 Specifically,
Attorney Saurman alleged that trial counsel was ineffective for, inter alia: failing to present
evidence that Victoria, her brother Keith, Ahern, and Ramos were allegedly intoxicated
and high on methamphetamines on the night of the murders and that Ramos had a
criminal history of committing offenses which showed a propensity for violence, thereby
supporting Appellant’s defense theory that they were the instigators of the fatal
confrontation; failing to introduce mental health treatment records of Ahern in which he
purportedly blamed himself for causing the fatal shooting; failing to obtain, and introduce,
for impeachment purposes, the fact that Commonwealth witness Ramos had an open
case with the Monroe County District Attorney’s Office at the time he testified, and had
an expectation of leniency in that case for his cooperation; failing to introduce testimony
from a mental health expert that Appellant suffered from obsessive compulsive disorder
and general neuropsychological impairment to a degree that he would have suffered
extreme anxiety over the events of the evening prior to Victoria’s shooting, such that he
would not have been able to form the specific intent to kill; failing to introduce forensic
evidence which would have demonstrated that multiple weapons other than the one
possessed by Appellant were fired in the house at the time of the killings, as well as other
medical evidence showing that Victoria died from the first shot and would not have
experienced the suffering the Commonwealth claimed that she did by being shot 7
additional times; failing to object to jury instructions which allegedly relieved the
Commonwealth of proving the specific intent to kill by allowing a finding of such intent to
9 Although he did not, as he did previously, attach the habeas petition and attempt to incorporate it wholesale by reference, it appears that Attorney Saurman lifted the text nearly verbatim from the habeas petition filed in federal court, which was authored by Appellant’s counsel in that proceeding, and put it into the body of the third amended petition; however, there was no additional factual development of these claims, either in the petition or through supporting affidavits or exhibits.
[J-61-2019] - 9 be presumed; failing to file a motion in limine to exclude evidence of: a prior incident of
domestic violence against the victim perpetrated by Appellant, Appellant’s adherence to
the tenets of Nazism, his interest in Nordic religions, his ownership of firearms and
ammunition not used in the murders, and his flight to New Hampshire; failing to file a
pretrial motion for a change of venue based on extensive pretrial publicity which tainted
the jury pool; failing to object to the Commonwealth’s introduction of victim impact
testimony at the guilt-phase portion of Appellant’s trial; and failing to file a direct appeal
on Appellant’s behalf.
At the November 3, 2015 evidentiary hearing, Dr. Yackel testified as to her
evaluation of Dr. Belknap’s performance, which she considered to have been deficient;
however, she indicated that she could not opine as to whether those deficiencies were
prejudicial to Appellant, inasmuch as she had not conducted any independent
investigation of her own into any other potential mitigating circumstances, or any other
aspect of the case. N.T. PCRA Hearing, 11/03/15, at 57. It appears Attorney Saurman
never requested Dr. Yackel perform such an investigation, never requested additional
funds from the PCRA court to do so, and never hired other experts or investigators after
he made his initial application.
Attorney Saurman also called as a witness Frederick Cutaio, an attorney in the
Monroe County PDO who was representing Ahern at the time of Appellant’s trial. Cutaio
testified that he was aware of the dual representation by the PDO, and, also, that he
possessed relevant information about Ahern which could have been used in the
preparation of Appellant’s defense, namely, that, at the time of Appellant’s trial, Ahern
had been convicted of simple assault, reckless endangerment, criminal mischief, and
harassment and was awaiting sentencing. Id. at 120-27. Nevertheless, according to
Cutaio, he continued with the dual representation after discussing it with the chief public
[J-61-2019] - 10 defender Niemoczynski, and they had reached the conclusion that no conflict existed
because Appellant was not involved with Ahern’s case, and Cutaio was concerned only
about his case. Id. at 127. Attorney Saurman presented no other witnesses at this
hearing.10
After the Commonwealth filed its answer to Appellant’s amended PCRA petitions,
and both parties filed briefs, the PCRA court issued a 45-page opinion and order on July
14, 2016 denying Appellant relief on all claims. On August 5, 2016, Appellant, through
Attorney Saurman, appealed to this Court,11 and the PCRA court directed him to file a
Rule 1925(b) statement. Attorney Saurman responded by filing a statement which, in its
entirety, consisted of the following three claims of error:
1. The [PCRA] court erred and abused its discretion by not finding that trial counsel [were] ineffective in their representation of the Appellant to the extent that he is legally entitled to a new trial.
2. The [PCRA] court erred and abused its discretion by not finding that the case for mitigation of the Appellant was compiled and presented in a legally ineffective manner, entirely outside of the standards of the profession, such that [Appellant] is entitled to a new penalty-phase [of his] trial.
10 Attorney Saurman filed a fourth and final amended PCRA Petition on April 5, 2016 in which he noted pending actions in the Court of Judicial Discipline against former Justices Eakin and McCaffrey and averred that, “[w]ere such jurists biased in their Hearing of [Appellant’s] appeal, [Appellant] suffered violations of his constitutional rights to due process effective assistance of direct appeal counsel and meaningful appellate review.” Amended PCRA Petition, 4/5/16, at ¶ 4. Attorney Saurman conceded there was not, as of that time, any evidence of bias on the part of either jurist with respect to the handling of Appellant’s direct appeal, and he did not subsequently provide any such evidence to the PCRA court. 11 Appellant, through Attorney Saurman, erroneously appealed to the Superior Court,
which later entered a per curiam order transferring the appeal to this Court. See 42 Pa.C.S. § 9546(d) (providing that a final order in a PCRA proceeding in a capital case where the death penalty has been imposed “shall be directly appealable only to the Supreme Court.”).
[J-61-2019] - 11 3. The [PCRA] court erred and abused its discretion by not finding that the failure of trial counsel to effectively represent Appellant and represent his interests resulted in complete and total breakdown of his ability to receive meaningful [a]ppellate review of his conviction, trial, and the underlying proceedings of the same. Concise Statement of Matters Complained of on Appeal, 8/30/16, unpaginated, at 1-2. In
response, the PCRA court, seemingly unable to discern which of its rulings on Appellant’s
myriad ineffectiveness claims raised in his amended petitions he was challenging on
appeal, issued a statement pursuant to Rule 1925(a), which incorporated its prior
opinion.12
In his brief filed with our Court, Attorney Saurman raised the following two issues: A. Was trial counsel ineffective in their representation of [Appellant] to the extent that he is legally entitled to a new trial?
B. Was the case for mitigation of [Appellant] compiled and presented in a legally ineffective manner such that [Appellant] is entitled to a new penalty phase [of his] trial? Appellant’s Brief at 5.13
Determining that the claims presented in Appellant’s Rule 1925(b) statement were
vague and insufficiently developed for appellate review, we remanded for the appointment
of new counsel, and directed supplemental briefing to address the following issues:
12 Although the PCRA court’s opinion was expansive, it did not address all of the ineffective assistance of counsel claims raised in Appellant’s four petitions. For example, the court did not address the allegation of trial counsel’s ineffectiveness for failure to object to alleged victim impact testimony introduced by the Commonwealth in the guilt phase of Appellant’s trial, for failure to impeach Commonwealth witness Ramos for potential bias over the open criminal case on which he was purportedly due to be sentenced at the time of his trial testimony, and for failure to introduce forensic evidence establishing that more than one gun was fired in the house on the night of the murders. 13 Given our ultimate disposition, we do not attempt in this appeal to parse out all of the
various specific legal issues which could conceivably be embedded in these all- encompassing claims of trial counsel’s ineffectiveness, and, accordingly, we do not opine to the merits of any claim relating to trial counsel’s alleged ineffectiveness.
[J-61-2019] - 12 (1) Does an appellant’s filing of a vague Rule 1925(b) statement that fails to specify any particular claim waive all his claims for purposes of appeal, even if the trial court issues an opinion addressing some of his claims and a Rule 1925(a) opinion incorporating its prior opinion? The parties are directed to address the appropriate scope of Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005).
(2) If so, does appellate counsel’s filing of such a statement constitute ineffective assistance of counsel per se?
(3) If so, is an appellant, whose appellate counsel has filed such a statement in the context of an appeal from the denial of PCRA relief, entitled to reinstatement of his Pennsylvania constitutional right to appeal the denial of PCRA relief nunc pro tunc? The parties are directed to address the appropriate scope of Commonwealth v. Hill, 16 A.3d 484 (Pa. 2011), particularly in light of Commonwealth v. Peterson, [192 A.3d 1123 (Pa. 2018)]? Commonwealth v. Parrish, 733 CAP (order filed Oct. 17, 2018). We retained jurisdiction.
On remand, the PCRA court appointed Attorney Brandon Reish to represent
Appellant, and the parties have now filed the requested supplemental briefs.
II. Legal Background
Pa.R.A.P. 1925 was first adopted by our Court in 1975, and it has undergone
multiple revisions since then, with the most recent version taking effect on June 24, 2019.
The current version provides, in relevant part:
(a) Opinion in support of order.
(1) General rule. Except as otherwise prescribed by this rule, upon receipt of the notice of appeal, the judge who entered the order giving rise to the notice of appeal, if the reasons for the order do not already appear of record, shall within the period set forth in Pa.R.A.P. 1931(a)(1) file of record at least a brief opinion of the reasons for the order, or for the rulings or other errors complained of, or shall specify in writing the place in the record where such reasons may be found.
* * *
[J-61-2019] - 13 (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”). * * * (4) Requirements; waiver.
(i) The Statement shall set forth only those errors that the appellant intends to assert.
(ii) The Statement shall concisely identify each error that the appellant intends to assert with sufficient detail to identify the issue to be raised for the judge. The judge shall not require the citation to authorities or the record; however, appellant may choose to include pertinent authorities and record citations in the Statement.
(iii) The judge shall not require any party 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.
* * * (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
[J-61-2019] - 14 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. If an appellant has a statutory or rule-based right to counsel, good cause shown includes a failure by counsel to file a Statement timely or at all.
(3) If an appellant represented by counsel in a criminal case was ordered to file a Statement and failed to do so or filed an untimely Statement, such that the appellate court is convinced that counsel has been per se ineffective, and the trial court did not file an opinion, the appellate court may remand for appointment of new counsel, the filing of a Statement nunc pro tunc, and the preparation and filing of an opinion by the judge.
Pa.R.A.P. 1925(a)-(c). As described by our Court, “[t]he . . . purpose of Pa.R.A.P. 1925(a) is to facilitate
appellate review of a particular trial court order. Additionally . . . the rule fulfills an
important policy consideration by providing to disputing parties, as well as to the public at
large, the legal basis for a judicial decision.” Commonwealth v. DeJesus, 868 A.2d 379,
382 (Pa. 2005).
Rule 1925(b) permits a judge whose order is being appealed from to request that
the appellant provide a “statement of errors” complained of on appeal if the trial judge
desires the appellant to provide “clarification of the errors complained of on appeal.”
Pa.R.A.P. 1925(b). Our Court’s Appellate Rules Committee has further elaborated that
this subsection of the rule is intended to be of the broadest scope, and requires all errors
which an appellant claims the trial court made in entering the appealed-from order be
included in a Rule 1925(b) statement:
The term “errors” is meant to encourage appellants to use the Statement as an opportunity to winnow the issues, recognizing that they will ultimately need to be refined to a statement that will comply with the requirements of Pa.R.A.P. 2116. Nonetheless, the term “errors” is intended in this context to be expansive, and it encompasses all of the reasons the trial court should not have reached its decision or judgment,
[J-61-2019] - 15 including, for example, those that may not have been decisions of the judge, such as challenges to jurisdiction. Pa.R.A.P. 1925(b), comment. The provisions of Rule 1925(b)(4) establish the basic
requirements which all statements of errors must meet, and further state that issues not
raised in accordance with those requirements “are waived.” Pa.R.A.P. 1925(b)(4)(vii).
Rule 1925(c) provides appellate courts with various remedies when faced with
counsel’s perceived failure to comply with the requirements of Rule 1925(b). In a civil or
criminal case, if there is a material dispute of fact as to whether a Rule 1925(b) statement
was filed and served in a timely fashion, the appellate court may remand for a factual
determination on these questions. Pa.R.A.P. 1925(c)(1). In a civil case, “[u]pon
application of the appellant and for good cause shown, an appellate court may remand .
. . 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. If an
appellant has a statutory or rule-based right to counsel, good cause shown includes a
failure by counsel to file a Statement timely or at all.” Pa.R.A.P. 1925(c)(2). In a criminal
case, “[i]f an appellant represented by counsel in a criminal case was ordered to file a
Statement and failed to do so or filed an untimely Statement, such that the appellate court
is convinced that counsel has been per se ineffective, and the trial court did not file an
opinion, the appellate court may remand for appointment of new counsel, the filing of a
Statement nunc pro tunc, and the preparation and filing of an opinion by the judge.”
Pa.R.A.P. 1925(c)(3).
In Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998), involving a direct appeal from
a criminal conviction, our Court held that all appellants must file a Rule 1925(b) statement,
if ordered to do so by the trial court, enumerating all issues they wish to have the appellate
court consider, or those issues will be deemed waived for appellate review. Our Court
emphasized that Rule 1925 was “a crucial component of the appellate process,” and,
[J-61-2019] - 16 thus, requiring mandatory compliance with this rule under penalty of waiver was essential
to further its primary purpose which is “to aid trial judges in identifying and focusing upon
those issues which the parties plan to raise on appeal.” Id. at 308.
Subsequently, in Commonwealth v. Butler, 812 A.2d 631 (Pa. 2002), our Court
ruled that the Lord decision also applies to proceedings under the PCRA. Therein, we
held that “PCRA appellants, in order to preserve their claims for appellate review, must
comply whenever the PCRA court orders them to file a Statement of Matters Complained
of on Appeal under Rule 1925. Accordingly, any issues not raised in a Rule 1925(b)
statement are waived.” Id. at 633-34. Consequently, we ruled that, because the attorney
for the PCRA petitioner therein, who was appealing the PCRA court’s denial of his PCRA
petition, failed to file a Rule 1925(b) statement after being ordered to do so by the PCRA
court, he waived his client’s right to appellate review of any claim related to that denial.14
Although Lord and Butler involved waiver of appellate issues due to counsel’s
complete failure to file a Rule 1925 (b) statement, in Commonwealth v. Castillo, 888 A.2d
775 (Pa. 2005), our Court determined that counsel’s untimely filing of such a statement
also completely waives such claims for purposes of appellate review, even though the
trial court authored an opinion addressing the issues presented in the untimely filed
statement. We concluded this was necessary in such situations
14 Then-Justice, now-Chief Justice, Saylor filed a concurring opinion in which he noted that “post-conviction petitioners have a rule-based interest in effective post-conviction counsel analogous to the Sixth Amendment right prevailing at trial and on direct appeal,” and that, in situations where PCRA counsel’s performance was so deficient it denied the petitioner his right of appeal secured by Article V, § 9 of the Pennsylvania Constitution, remand for the appointment of new counsel is “the accepted remedy.” Butler, 812 A.2d 637-38 (Saylor, J. concurring). However, because of the paucity of the appellant’s argument in his brief and his failure to request, or even discuss, such relief, Justice Saylor did not consider it appropriate to fashion such an equitable remedy under those circumstances.
[J-61-2019] - 17 to insure judges in each appealed case [have] the opportunity to opine upon the issues which the appellant intends to raise, and thus provide appellate courts with records amenable to meaningful appellate review. This firm rule avoids the situation that existed prior to Lord where trial courts were forced to anticipate which issues the appellant might raise and appellate courts had to determine whether they could conduct a meaningful review despite an appellant’s failure to file a Pa.R.A.P. 1925(b) statement or to include certain issues within a filed statement. Id. at 779 (citations and quotation marks omitted).15
Thereafter, in Commonwealth v. Hill, 16 A.3d 484 (Pa. 2011) – a capital case – our
Court again held that the Lord/Butler waiver rule applied in an appeal from the PCRA
court’s denial of a PCRA petition. Because PCRA counsel in that case failed to file a Rule
1925(b) statement as ordered by the PCRA court, all appellate issues were waived, and
we did not consider those that were presented in the appellant’s brief to our Court.16 We
rejected the Commonwealth’s suggested alternative disposition — removal of the
appellant’s current counsel and remand to the PCRA court for the filing of a new Rule
1925(b) statement.17 We opined that such a remedy could not be granted under our prior
jurisprudence in this area — citing Butler, Castillo, Commonwealth v. Schofield, 888 A.2d
15 Then-Justice Saylor dissented, expressing his preference for adoption of a form of discretionary review which would permit a degree of flexibility for trial and appellate courts to consider issues whenever there has been imperfect procedural or substantive compliance with Rule 1925 by appellants, if the issues are purely legal in nature, or they have been presented to the trial court in some fashion previously, such as through post- trial or post-sentence motions, and the lower court has ruled on them. Justice Saylor also noted that some defects also could be cured through remand to the trial court for further proceedings. He viewed either alternative as preferable to a finding of complete waiver under the Lord/Butler rule. 16 The appellant’s counsel claimed that he had made the PCRA court aware of the
appellate issues he wished to pursue via a series of off-the-record ex parte contacts with its chambers and submission of various other documents to that court, which were not made part of the certified record. We rejected the appellant’s argument that these actions constituted sufficient compliance with the requirements of Rule 1925(b). 17 The Commonwealth’s disposition was endorsed by the appellant who did not independently offer her own suggested remedy to cure the waiver caused by her counsel’s failure to file the Rule 1925(b) statement.
[J-61-2019] - 18 771 (Pa. 2005) (failure to demonstrate that Rule 1925(b) statement was provided to the
trial judge within the 14-day time period permitted by the rule resulted in waiver of all
issues for purposes of appeal despite trial court opinion addressing those issues), and
Commonwealth v. Wholaver, 903 A.2d 1178 (Pa. 2006) (applying Lord/Butler waiver rule
in a direct capital appeal to find all appellate issues waived other than the statutorily-
mandated sufficiency-of-the-evidence review because counsel failed to timely file a Rule
1925(b) statement). See Hill, 16 A.3d at 494. Our Court additionally noted that, in
Wholaver, we rejected a “similar request . . . to overlook a Rule 1925(b) failure.” Id.
We further observed that the Commonwealth’s suggested disposition was based
on the version of Pa.R.A.P. 1925 which went into effect in 2007 (and remains in effect
today), which added this type of remand procedure in subsection (c)(3); however, this
amended version of the rule was not in effect at the time the appellant’s appeal was filed;
thus, we deemed it to be inapplicable. Id. We also declined in Hill to consider whether
remand for the filing of a new Rule 1925(b) statement, and appointment of new counsel,
would have been required had Rule 1925(c)(3) been in effect, but we noted that, in prior
cases, our Court had characterized the PCRA as being technically civil in nature, that
Rule 1925(c)(3) was a codification of prior caselaw arising out of direct criminal appeals
in which counsel failed to file a Rule 1925(b) statement, and that it merely streamlined the
procedure for restoration of appellate rights in those circumstances. Id. at 495 n.14.18
18 Then-Justice Saylor penned a dissent, joined by this author, in which he favored returning the matter to the PCRA court to factually determine if there had been substantial compliance with its order to file a Rule 1925(b) statement. Justice Saylor observed that, since our decision in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), our Court now strongly discourages the presentation of claims of ineffective assistance of counsel during direct appeal; thus, he reasoned that the sole round of post-conviction review of such claims available under the PCRA “should not be impaired by rules of literal compliance.” Hill, 16 A.3d at 498 (Saylor, J., dissenting).
[J-61-2019] - 19 Finally, our decision in Commonwealth v. Peterson, 192 A.3d 1123 (Pa. 2018),
while not involving the Lord/Butler waiver rule, nevertheless has relevance to the current
matter since it concerns the fundamental question at the heart of this appeal — whether
the actions of PCRA counsel can amount to ineffectiveness per se, depriving the PCRA
petitioner of the right to appellate review of the merits of his collateral claims, such that
judicial restoration of that right is required. In that case, the appellant’s first PCRA counsel
filed the PCRA petition a day late, and, although the PCRA court addressed the claims
therein and denied relief, the Superior Court sua sponte dismissed petitioner’s appeal
because the PCRA petition was untimely.19
The appellant, through new counsel, then filed a second PCRA petition seeking to
restore, nunc pro tunc, his right to appeal the PCRA court’s denial of his petition. The
PCRA court determined that the appellant did not know that his first counsel had missed
the filing deadline, and could not have determined that fact through the exercise of due
diligence; thus, it regarded the second petition as timely filed under Section 9545(b)(1)(ii)
of the PCRA. See 42 Pa.C.S. § 9545(b)(1)(ii) (allowing filing of a PCRA petition beyond
the one-year deadline if “the facts upon which the claim is predicated were unknown . . .
and could not have been ascertained by the exercise of due diligence”). This was in
accord with our decision in Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007) (holding
that PCRA counsel’s failure to file an appellate brief which resulted in the dismissal of
petitioner’s appeal constituted abandonment for purposes of that appeal, an act which
was per se prejudicial, and because appellant was unaware of such abandonment, nor
could he have learned of that fact through the exercise of due diligence, a second PCRA
petition seeking to restore his appellate rights was timely under Section 9545(b)(1)(ii)).
19 Until that dismissal, neither the parties nor the PCRA court were apparently aware of the petition’s untimeliness.
[J-61-2019] - 20 After the PCRA court again denied relief to the appellant on the merits of his PCRA
claims, he appealed to the Superior Court. That tribunal once more determined that the
petition was untimely, reasoning that, because PCRA counsel had actually filed a petition
on the appellant’s behalf, counsel did not abandon him as in Bennett. Our Court granted
allowance of appeal and reversed.
We observed that, while complete abandonment of a client during the appellate
process, as occurred in Bennett, is ineffectiveness per se on the part of appellate counsel,
see Peterson, 192 A.3d at 1131 (quoting Commonwealth v. Rosado, 150 A.3d 425, 427
(Pa. 2016) (in turn citing Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999) (failing to
perfect a direct appeal resulting in its dismissal); Commonwealth v. Liebel, 825 A.2d 630
(Pa. 2003) (failing to file a petition for allowance of appeal requested by defendant causing
loss of the right to seek discretionary review with our Court); and Commonwealth v.
Halley, 870 A.2d 795 (Pa. 2005) (failing to file a Rule 1925(b) statement in a direct appeal
causing its dismissal))), complete inaction is not the only circumstance under which
appellate counsel can be found to be ineffective per se. We highlighted the import of our
decision in Rosado, wherein we found counsel to be ineffective per se for filing an
appellate brief which raised only issues that had been waived; we deemed this as the
functional equivalent of filing no brief at all because it resulted in the forfeiture of merits
review for all claims. Thus, applying the collective principles articulated in these cases,
we held in Peterson that the appellant’s first PCRA counsel was ineffective per se for filing
the PCRA petition a day late, “as it completely foreclosed [him] from obtaining review of
the collateral claims set forth in his first PCRA petition,” Peterson, 192 A.3d at 1132, and
we ordered the case remanded to the Superior Court so that it could conduct appellate
review of those claims. III. Arguments of the Parties
[J-61-2019] - 21 We turn now to the arguments of the parties with respect to the issues presented
in the case at bar. Appellant argues that the core purpose of Rule 1925(b), as repeatedly
emphasized by our Court in this area, is the identification of issues for appellate review
so that courts do not have to speculate as to the issues being raised. Appellant proffers
that, when counsel fails to file such a statement, files the statement late, or files a
fundamentally defective statement, this “cuts to the heart of counsel’s effectiveness in
litigating the appeal,” as it is an abdication of his or her responsibility to identify the issues
raised on appeal, thereby forcing the court to assume counsel’s role in this regard.
Appellant’s Supplemental Brief at 28. Appellant reasons that, for purposes of applying
the Lord/Butler rule, there is no analytical distinction between the failure to file a Rule
1925(b) statement, the filing of an untimely statement, or the filing of a vague statement.
In each situation, the pivotal inquiry is whether the statement sufficiently identified for the
lower court the issues for appeal; if it did not, and the lower court was forced to speculate,
then the Lord/Butler rule requires a finding of waiver.
Appellant avers that PCRA counsel’s Rule 1925(b) statement was so vague that it
failed to identify any discernible issues for appeal. Appellant points out that, while
counsel’s PCRA petitions raised a multiplicity of ineffectiveness claims, and the trial court
held hearings on some of them, the Rule 1925(b) statement does not identify which of
those claims would be raised on appeal, or what factual and legal errors the PCRA court
allegedly made. Appellant describes the statement as “little more than a mélange of
formless and indistinct ideas, complaining simply that the lower court erred in some
undefined way,” resulting in the PCRA court being forced to speculate about what errors
or rulings counsel was challenging on appeal. Appellant’s Supplemental Brief at 29-30.
Thus, in Appellant’s view, under the Lord/Butler rule, as reaffirmed in Castillo, this
requires a finding of waiver of all of his appellate issues.
[J-61-2019] - 22 Appellant continues that, because PCRA counsel’s act of filing this vague Rule
1925(b) statement waived all of his appellate issues, it constituted ineffective assistance
of counsel per se, just as our Court in Halley determined that counsel’s act of failing to
file any Rule 1925(b) statement in a direct appeal, which resulted in forfeiture of all of his
client’s issues for purposes of appellate review, was ineffectiveness per se. Appellant
characterizes the filing of this vague statement to be “the functional equivalent” of filing
no statement at all, because, as in Halley, appellate counsel’s actions waived all appellate
issues. Appellant’s Supplemental Brief at 31.
Addressing the question of what the appropriate remedy should be if our Court
agrees he has waived all of his appellate claims, Appellant suggests two possible courses
of action set forth in Rule 1925(c): First, he offers that we could treat this case as a
criminal matter and remand it pursuant to Rule 1925(c)(3) for the filing of a new Rule
1925(b) statement. Alternatively, Appellant proposes that we could treat this as a civil
matter, citing our Court’s statement in Hill characterizing a PCRA proceeding to be civil
in nature, see Hill, 16 A.3d at 495 n.14, and view his supplemental brief as an application
for remand and reinstatement of his appellate rights under Rule 1925(c)(2), which allows
remand in a civil matter upon application, and for good cause shown, as discussed above.
As a second potential remedy, Appellant submits that we allow him to file another
PCRA petition for the purposes of restoring his appellate rights. Appellant argues that in
Peterson we seemingly approved of this approach, given that we allowed the restoration
of petitioner’s appellate rights in that case via the filing of a second PCRA petition.
Appellant also emphasizes that, because trial counsel failed to file a direct appeal,
he has not had appellate review of his conviction and death sentence beyond the limited
automatic review performed by this Court. Further, citing the paucity of factual and legal
development in his PCRA petitions discussed above, Appellant avers that this present
[J-61-2019] - 23 appeal from the denial of his PCRA petitions is the first and only opportunity to adequately
develop and present claims of ineffective assistance of trial counsel. He adds that a
remand would be appropriate because this Court has directed such relief where the
record concerning capital PCRA counsel’s ineffectiveness is not sufficiently developed.
See Commonwealth v. Pursell, 724 A.2d 293, 303 (Pa. 1999).
Amicus the Defender Association of Philadelphia has filed a brief taking the
position that Pa.R.A.P. 1925(b) should be interpreted in accordance with its plain text,
and that nothing in the language of this rule permits an appellate court to find automatic
waiver of an appellate issue if it is not raised with sufficient specificity in a statement of
matters complained of on appeal. Amicus argues that the purpose of the rule, as reflected
in its text, is to identify for the trial judge who has requested the statement the issues
which will be pursued on appeal. See Pa.R.A.P. 1925(b)(ii) (“The Statement shall
concisely identify each error that the appellant intends to assert with sufficient detail to
identify the issue to be raised for the judge.”). Thus, in situations such as the present
case where the trial court which requested the statement files an opinion addressing
certain issues, it can be presumed that the issue has been adequately presented to the
trial court so that it understands the issue well enough to opine on it, and an appellate
court finding of waiver is inappropriate.
Amicus further suggests that it is only in the limited instance where there is a
divergence between the issues as framed in the appellate brief and the trial court opinion
– i.e., the brief raises issues not addressed by the trial court opinion – that the appellate
court should examine the statement to see if the issues were presented in accordance
with Rule 1925(b)(4)(i)-(vi). According to amicus, only if the appellate court determines
that those requirements have not been met can it find the issue waived. In the view of
amicus, this allows appellate counsel sufficient latitude to raise issues in a manner
[J-61-2019] - 24 adequate for the trial court to understand them, yet also allows for later refinement of his
or her advocacy in the appellate brief by developing in greater depth the issue, or
subsidiary issues which the rule presumes are subsumed within the issues presented to
the trial court.
Amicus, the Pennsylvania Association of Criminal Defense Lawyers (“PACDL”),
also filed an amicus brief in which it argues that our Court’s holdings in Lord, Butler,
Schofield, and Castillo are factually distinguishable and, thus, do not directly control the
outcome of this case. PACDL concedes that a finding that the Rule 1925(b) statement is
vague “dooms the appeal” as, under the provisions of Rule 1925(b)(4), failure to comport
with that subsection’s requirements results in waiver. PACDL Brief at 7. Hence, it views
our Court’s “portrayal” of the Rule 1925(b) statement as “vague” and “fail[ing] to identify
any particular issue on appeal” as resulting in Appellant’s waiver of all appellate issues.20
Id. PACDL regards appellate counsel’s waiver of all issues for purposes of appeal to be
ineffective assistance of counsel per se, and argues that the proper remedy in such
situations is to remand for the reinstatement of all appellate rights nunc pro tunc.
As a broader remedy, PACDL additionally proposes that we suspend the
application of Rule 1925(b) in criminal appeals, and that we refer the matter to the
Appellate Rules Committee for amendment. PACDL criticizes the way in which the rule
operates as a practical matter, in that it forces appellate counsel to prematurely identify
all possible appellate issues before he or she has had the chance to carefully review the
record and evaluate the legal and factual soundness of various arguments which could
be raised on appeal. Moreover, according to PACDL, the rule does not promote
consistency in the appellate process, but, rather, operates in a manner which places
20This “portrayal” was from our statement of the questions on which we ordered supplemental briefing. See Parrish, 733 CAP (order filed Oct. 17, 2018).
[J-61-2019] - 25 appellate criminal litigants in unequal positions. Those litigants not required to file such
a statement have greater time and latitude to identify and fully develop appellate issues
in the preparation of their brief, as opposed to those litigants ordered to file such a
statement, who must then, early in the appellate process, determine, with specificity,
issues they are going to pursue under penalty of waiver for failure to do so.
Moreover, PACDL notes that the requirements of the rule are themselves
confusing and often leave advocates and courts at odds about whether issues in a Rule
1925(b) statement have been stated with sufficient specificity to be preserved therein. In
PACDL’s view, this uncertainty makes compliance an exercise in conjecture and raises
significant due process concerns.
The Pennsylvania Bar Association (“PBA”) also filed an amicus brief which argues
that the underlying purpose of Rule 1925, as recognized in Lord — to aid trial judges in
identifying and focusing upon those issues which the parties plan to raise on appeal so
that they can prepare an opinion describing their reasoning — is not implicated in this
situation because the trial court authored an opinion addressing the issues to be raised
on appeal. PBA acknowledges our Court’s holding in Castillo, but suggests that it be
modified so that automatic waiver is not required in situations such as the present case
where the trial court authored an opinion addressing each issue the appellant raises on
appeal. Thus, because there is an opinion available for the appellate court’s review, in
these situations, appellate review is not hindered. To insist upon applying Castillo’s bright
line rule in these types of cases would, in PBA’s view, require consistency merely for
consistency’s sake. PBA contends that, while Rule 1925 is helpful in facilitating appellate
review, it is not the sine qua non of that review, and the constitutional right to appellate
review afforded by Article V, Section 9 should not be impaired by a requirement of rigid
[J-61-2019] - 26 compliance in circumstances such as these, given that appellate review is possible. PBA
Brief at 8.
In its response, the Commonwealth also argues that a finding of waiver is not
necessary under these circumstances, given that this case differs from Castillo in that,
here, it is not the timeliness of the statement’s filing which is at issue; rather, it is the form
of the statement. Consequently, from the Commonwealth’s perspective, while the bright
line rule of Castillo ensures consistency because it is straightforward in its application –
i.e., appellate issues are waived if a statement is untimely, a determination which can be
made by a simple temporal calculation – by contrast, a determination of whether a
statement is so vague as to require a finding of waiver is not subject to such easy
resolution because it involves an exercise of trial court discretion. As a result, consistency
in finding waiver in these situations is not assured. While the Commonwealth concedes
that, here, the parties have assumed that the statement is vague, it cautions that in other
cases such a determination may not be quite so clear.
The Commonwealth endorses modifying the scope of our Castillo decision in
accordance with the manner suggested by PBA – namely, allowing consideration of
issues raised in an appellate brief if the trial court has addressed the issues in a written
opinion, or even orally on the record. The Commonwealth suggests that such a rule
would more readily assure consistency, given that it would require a lesser exercise of
discretion, as an appellate court could simply compare an appellant’s brief with the trial
court opinion and determine if the issues raised therein had been addressed by the trial
court.
In the case at bar, the Commonwealth acknowledges that the Rule 1925(b)
statement was “entirely vague;” however, it points out that the PCRA judge ordered the
parties to file briefs prior to rendering her initial opinion denying the PCRA claims, and
[J-61-2019] - 27 Appellant’s counsel filed a brief with her in which he raised issues he now presents on
appeal. Commonwealth Supplemental Brief at 7. The PCRA judge in her initial opinion
provided an explanation of her rulings on those issues, and, in the Commonwealth’s view,
this enabled effective appellate review of those issues.
The Commonwealth agrees that, if the filing of a vague Rule 1925(b) statement
waives all of Appellant’s issues on direct appeal, then, consistent with our decision in
Halley, this constitutes ineffective assistance of counsel per se. The Commonwealth also
interprets our Court’s Peterson decision, and our Court’s earlier decision in Rosado relied
upon by Peterson, as a definitive recognition that such ineffective assistance of counsel
which completely forecloses appellate review is a constructive denial of counsel. Thus,
a conclusion that Appellant’s issues were waived would entitle him to a remand to file a
new Rule 1925(b) statement and for the PCRA court to write a new opinion addressing
any issues raised therein.
IV. Analysis
The issues involved in this appeal present pure questions of law; hence, our review
is plenary. Commonwealth v. Hess, 810 A.2d 1249, 1252 (Pa. 2002). We begin by
addressing the threshold question of whether the Rule 1925(b) statement filed by PCRA
counsel was so vague that appellate review of any issues related to the PCRA court’s
dismissal of Appellant’s amended petitions was waived. Notably, the parties do not
dispute this question, as even the Commonwealth has conceded that the Rule 1925(b)
statement was “entirely vague.” Commonwealth Supplemental Brief at 7.
Our own independent review of the vacuous statement filed by PCRA counsel
leads us to conclude that it is so wholly lacking in comportment with Rule 1925(b)’s basic
requirements that a finding of waiver is clearly warranted. As discussed above, under
Lord and Butler, a litigant appealing from the denial of PCRA relief is required to strictly
[J-61-2019] - 28 comply with the provisions of Rule 1925(b), or his or her appellate issues are deemed to
be waived. Rule 1925(b)(4)(ii) directs that “[t]he Statement shall concisely identify each
error that the appellant intends to assert with sufficient detail to identify the issue to be
raised for the judge.” Pa.R.A.P. 1925(b)(4)(ii) (emphasis added). As the comment to
Rule 1925(b) further elaborates:
The more carefully the appellant frames the Statement, the more likely it will be that the judge will be able to articulate the rationale underlying the decision and provide a basis for counsel to determine the advisability of raising that issue on appeal. Thus, counsel should begin the winnowing process when preparing the Statement and should articulate specific errors with which the appellant takes issue and why. Pa.R.A.P. 1925(b), comment (emphasis added).
The statement filed by PCRA counsel, quoted supra, did not identify any specific
legal error committed by the PCRA court in its rulings on the multifarious claims of trial
counsel ineffectiveness presented in the amended PCRA petitions, nor did it even identify
which of those rulings were being challenged on appeal. Rather, it generically and
capaciously encompassed every conceivable claim of ineffective assistance of trial
counsel contained in the amended PCRA petitions. As such, it forced the PCRA court to
guess which of its rulings were being challenged. Accordingly, waiver of all appellate
issues is mandated by Pa.R.A.P. 1925(b)(4)(vii), which provides that “[i]ssues . . . not
raised in accordance with the provisions of this paragraph (b)(4) are waived.” Pa.R.A.P.
1925(b)(4)(vii).
This conclusion is not altered by the fact that the PCRA court authored an opinion
addressing a large number of the ineffectiveness claims raised in Appellant’s four
amended PCRA petitions. As we held in Castillo, the mere fact that a court has authored
an opinion addressing potential appellate issues does not excuse an appellant from
complying with Pa.R.A.P. 1925(b). As Appellant has cogently argued, the burden is on
[J-61-2019] - 29 appellate counsel to comply with Rule 1925(b), and it is not the trial court’s responsibility
to assume that burden and identify potential appellate issues and frame them for a litigant
in an opinion without receiving any guidance from appellate counsel. Pa.R.A.P.
1925(b)(4)(ii) establishes the minimum guidance appellate counsel must provide to the
trial court about the specific issues he or she will be pursuing on appeal, and,
consequently, plays a vital role in facilitating the appellate process.
In this regard, as noted previously, see supra note 12, in the face of Appellant’s
vague Rule 1925(b) statement, the PCRA court did not write a new opinion, but, rather,
merely incorporated the prior opinion which it authored in support of its order denying
PCRA relief. As we observed, this opinion did not address all of the claims raised in
Appellant’s amended petitions, but merely a subset. We express no view on whether the
ineffectiveness claims omitted from the PCRA court’s discussion have potential merit;
however, we highlight these omissions as an additional reason for considering a trial
court’s Rule 1925(a) opinion to be an inadequate substitute for appellate counsel’s filing
of a compliant Rule 1925(b) statement. In preparing a Rule 1925(b) statement, appellate
counsel has the responsibility to exercise professional judgment to identify and frame all
potentially meritorious issues for appellate review on behalf of his client. The trial court,
in preparing its Rule 1925(a) opinion, has no such duty, and is obligated only to address
the issues raised by counsel for an appellant.
Moreover, as our Court also recognized in Castillo, strict compliance with Rule
1925(b) promotes uniformity in the appellate review process, and ensures that each
litigant ordered to file such a statement receives the same opportunity for appellate
review. In our view, it is untenable, and, indeed, potentially offensive to equal protection
principles, for the breadth of appellate review to be based on a trial court’s discretionary
decision to speculatively determine which appellate issues are raised in a vague Rule
[J-61-2019] - 30 1925(b) statement. Such an approach would result in a situation where some litigants
obtain appellate review if, as here, the trial court elects to address certain appellate
issues, whereas other litigants would be denied that opportunity if the trial court declines
to do so. Accordingly, to avoid such unpredictable and inequitable outcomes, where, as
here, appellate counsel has wholly failed in a Rule 1925(b) statement to identify with
sufficient detail the issues to be raised on appeal, consistent with our prior decisions in
Lord, Butler, and Castillo, those issues are waived.
We turn now to the question of whether PCRA counsel’s filing of this type of
deficient Rule 1925(b) statement constitutes ineffective assistance of counsel per se. As
our Court has recognized, while there is no right under the Sixth Amendment to the
effective assistance of counsel in a PCRA proceeding, because a PCRA petitioner has
the right to counsel under our rules of criminal procedure, there exists “an enforceable
right to effective post-conviction counsel.” Commonwealth v. Albrecht, 720 A.2d 693, 700
(Pa. 1998) (quoting Commonwealth v. Albert, 561 A.2d 736, 738 (Pa. 1989)); see also
Peterson, 192 A.3d at 1130 n.3. This right includes the right to the effective assistance
of post-conviction counsel in pursuing an appeal of the denial of post-conviction relief.
Albert, 561 A.2d at 738.
As our Court observed in Rosado, in the direct appeal context, “[t]here is no
meaningful difference between an attorney who fails to file a notice of appeal, Rule
1925(b) statement, brief, or petition for allowance of appeal — thereby forfeiting his
client's right to appeal — and one who makes all necessary filings, but does so relative
solely to claims he has not preserved for appeal, producing the same end. In both
situations, counsel has forfeited all meaningful appellate review”; in both situations,
counsel is therefore ineffective per se. Rosado, 150 A.3d at 434. Moreover, in Peterson,
we held that these principles are equally applicable in PCRA proceedings, and thus we
[J-61-2019] - 31 found counsel in that matter to be ineffective per se for depriving a PCRA petitioner of his
right to collateral review by filing an untimely PCRA petition. Rosado and Peterson
therefore stand for the proposition that, whenever PCRA counsel takes any action that
wholly deprives his or her client of the right to appellate review of collateral claims, counsel
will be deemed to be ineffective per se. Consequently, in the present case, PCRA
counsel’s filing of a vague Rule 1925(b) statement, which has completely forfeited
Appellant’s right to appellate review of all of his collateral claims, constitutes ineffective
assistance of counsel per se.
Necessarily, then, we must determine the appropriate remedy in this situation. Our
Court has indicated that, whenever post-conviction counsel’s performance is so deficient
that it has entirely denied the post-conviction petitioner the right to appeal, remand to the
lower court is the appropriate remedial action so that new counsel can take the necessary
steps to restore that right. Albrecht, 720 A.2d at 700-01; see also Albert, supra (because
appellate brief filed in appeal from the denial of PCRA relief was so deficient as to render
meaningful appellate review impossible, remand for the appointment of new appellate
counsel to prepare a new appeal was required in order to effectuate petitioner’s post-
conviction right to appellate review secured by Article V, Section 9).
Here, Appellant has already received the appointment of new counsel;
accordingly, all that remains is to remand this matter for the preparation of a new Rule
1925(b) statement nunc pro tunc. Thereafter, the PCRA court must then file a new Rule
1925(a) opinion in response.21
21 Although we acknowledge, and appreciate, the well-considered and compelling advocacy of amici regarding modification of our Castillo decision, and, alternatively, their suggestions for restructuring the provisions of Rule 1925 itself, we decline, under the facts of this case, to make wholesale changes to the rule, or disturb our extant caselaw interpreting it, given that neither the Rule nor our caselaw precludes the remedy we have afforded Appellant.
[J-61-2019] - 32 This matter is hereby remanded to the PCRA court so that Appellant may file a
new Rule 1925(b) statement nunc pro tunc. Jurisdiction is relinquished.
Chief Justice Saylor and Justices Baer, Donohue, Dougherty, Wecht and Mundy
join the opinion.
[J-61-2019] - 33
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Commonwealth v. Parrish, M., Aplt., Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-parrish-m-aplt-pa-2020.