Appeal from the Order Dated August 23, 2007 In the Court of Common Pleas of Northumberland County. Criminal at No(s): CP-49-CR-0000706-2004.
The opinion of the court was delivered by: Stevens, J.
BEFORE: STEVENS, KLEIN, and KELLY, JJ.
¶ 1 This is an appeal from the order dated August 23, 2007, and entered on August 24, 2007, by the Court of Common Pleas of Northumberland County, following the granting of Appellee's/cross-Appellant's, Kazimir Grohowski's, motion for extraordinary relief and awarding of a new trial. Herein, the Commonwealth contends that the motion for extraordinary relief was improperly granted in that (1) such a motion is improper to raise allegations of ineffectiveness of counsel, and (2) even if not improper, trial counsel was not ineffective where Appellee did not prove he was prejudiced by the prosecutor's remarks during closing argument. We reverse and remand.
¶ 2 In this case, both the Commonwealth and Appellee/cross-Appellant failed to file timely statements pursuant to Rule 1925(b).
¶ 3 On September 19, 2006, Appellee was convicted of three counts of delivery of contraband to a confined person.*fn1 Appellee was a correctional officer at the Northumberland County prison and was delivering various controlled substances to the prisoners. Prior to sentencing, Appellee filed a written motion for extraordinary relief on January 12, 2007. On August 24, 2007, the trial court granted relief by awarding Appellee a new trial, finding that trial counsel was ineffective for failing to object to an improper statement by the prosecutor.*fn2 Thereafter, the Commonwealth filed a timely notice of appeal, and Appellee filed a timely cross-appeal.
¶ 4 On September 28, 2007, the trial court ordered the Commonwealth to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b) within 21 days. The Commonwealth filed the statement on October 22, 2007, greater than the 21 days allotted. On October 24, 2007, the trial court ordered Appellee/cross-Appellant to file a Rule 1925(b) statement and that statement was filed on November 16, 2007,*fn3 greater than the 21 days allotted.
¶ 5 A recent en banc decision by this Court held that in the event a Rule 1925(b) statement is filed late by a represented criminal defendant, such constitutes per se ineffectiveness so that the proper remedy is to remand for the filing of such a statement nunc pro tunc. Commonwealth v. Burton, No. 1932 EDA 2007 (Pa. Super. filed May 13, 2009) (en banc). Furthermore, where the trial court has filed an opinion addressing the issues presented in the 1925(b) concise statement, we may review the merits of the issue presented. Id.*fn4 This is consistent with the rule regarding cases where no 1925(b) statement is filed at all. See Pa.R.A.P. 1925(c)(3); Commonwealth v. McBride, 957 A.2d 752, 756 (Pa. Super. 2008) ("[c]counsel's failure to file a statement as required under Rule 1925 deprived [a]ppellant of meaningful review of his appeal and constitutes per se ineffectiveness").
¶ 6 In this case, both the Commonwealth and Appellee/cross-Appellant failed to file timely statements pursuant to Rule 1925(b). Burton, supra,permits a represented criminal defendant to file a 1925(b) statement late, the remedy being a remand to allow for the filing of such statement nunc pro tunc. Rule 1925(c)(3) allows for remand "if an appellant" in a criminal case was ordered to file a statement and did not do so. There is no requirement set forth in the Rule that the appealing party must be the defendant in order to apply the Rule. Furthermore, we refuse to read such a requirement into the Rule. Fairness and consistency require that each side be treated the same so that if we are to permit the late filing of the 1925(b) statement for one of the parties, i.e., the Defendant, we must permit the late filing of the 1925(b) statement for the other side, i.e., the Commonwealth.
¶ 7 Allowing for the late filing by the Commonwealth does not thwart the purpose of the Rule; but rather, allowing such filing promotes the purpose of the amendment to Rule 1925(b). For example, the Rule was amended in order to extend the time period for filing and to excuse late filings under the proper circumstances. The Rule was not amended in order to favor one party over another party when there is a late filing of the Rule 1925(b) statement.
¶ 8 Where, as here, the Commonwealth has filed a late Rule 1925(b) statement, we will apply the same logic and allow for remand to the trial court or address the issues raised where the trial court had the first opportunity to address them. Therefore, we hold that the rule enunciated in Burton, supra,permitting the late filing of a 1925(b) statement applies to the Commonwealth as well as to the represented criminal defendant.
¶ 9 Presently, the trial court has addressed the merits of the issues raised by the Commonwealth so that we may review the issues raised. However, the trial court failed to address the issues raised by Appellee/cross-Appellant based on the disposition of the case. Although pursuant to Burton, suprawe would remand for the trial court to address those issues, based on our disposition of this case, we need not do so.*fn5
¶ 10 Prior to addressing the issue raised, we must determine whether the motion for extraordinary relief is ...