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[U] Commonwealth v. Blakney

Superior Court of Pennsylvania

February 11, 2014



Appeal from the Judgment of Sentence Entered April 4, 2012, In the Court of Common Pleas of Philadelphia County, Criminal Division, at No. CP-51-CR-0012521-2010.




Appellant, James Blakney, appeals from the judgment of sentence of two and one-half to seven years of incarceration entered April 4, 2012, following his conviction in a bench trial of receiving stolen property graded as a third-degree felony. For the reasons that follow, we affirm.

Appellant filed a pro se notice of appeal on May 2, 2012. The trial court had ordered the appointment of counsel on April 4, 2012, and the filing of a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925 on May 7, 2012. No Rule 1925(b) statement was filed.[1] While the trial court noted the absence of the Rule 1925(b) statement in its opinion, it addressed an issue it believed Appellant would raise.

In Commonwealth v. Scott, 952 A.2d 1190 (Pa.Super. 2008), we re-examined the issue of waiver for failure to file a proper Rule 1925(b) statement and ruled that counsel was per se ineffective in such a case. In Commonwealth v. Burton, 973 A.2d 428 (Pa.Super. 2009), we extended the procedure for remand for per se ineffectiveness to cases in which the appellant had filed a Rule 1925(b) statement but failed to do so within the court-ordered deadline. More recently, in Commonwealth v. Thompson, 39 A.3d 335 (Pa.Super. 2012), we addressed an untimely Rule 1925(b) statement where the trial court did not address the issues in its Rule 1925(a) opinion because the appellant had not yet filed the statement when the court filed its opinion. Thus, we remanded for the trial court to file a Rule 1925(a) opinion addressing the issues raised in the untimely Rule 1925(b) statement.

In the instant case, while Appellant's counsel failed to file the court-ordered Rule 1925(b) statement, counsel cannot be deemed ineffective per se because she was not appointed until after the time for filing the statement had expired. Counsel should have sought permission to file a statement nunc pro tunc pursuant to Pa.R.A.P. 1925(b)(2), but did not do so. Instead, counsel proceeded with the filing of the appellate brief.

In light of the timing of counsel's appointment and the trial court's failure to enlarge the time after counsel was appointed, [2] we remanded this case for counsel to file a Pa.R.A.P. 1925(b) statement nunc pro tunc, the trial court to file an opinion addressing the issues raised therein, and the filing of new briefs. This having been accomplished, we can now address the issue raised.

The trial court summarized the facts of the crime as follows:

On September 19, 2010, Daniel Elhyani, a technician employed by MK Mechanical, performed a service call at the McDonald's restaurant located at 5020 City Avenue, Philadelphia, Pennsylvania. During the service call, his company vehicle, a white van with the words "MK Mechanical" written on it, was stolen from the McDonald's parking lot. Elhyani called 911 to report the vehicle as stolen and also provided police with the vehicle's GPS tracking information. (N.T., 5/10/11 at 5–8).
A short time later, Police Officer Renard Bournett responded to a radio call at the 2900 block of Jefferson Street in Philadelphia. Upon arrival, he observed a white construction van parked on the block. Officer Bournett went around the corner to the 1400 block of North 30th Street to ask residents if they observed anyone unloading items from the van. Based upon information received from those residents, Officer Bournett went to 1431 North 30th Street. At that location, Office Bournett observed that the property was being renovated, and he found a note on the door with a phone number. (N.T., 12/5/2011 at 9– 12).
Another police officer called the phone number posted on the property. About five to ten minutes after that phone call, Defendant arrived at the property and told Officer Bournett that he was the owner of the property and that he was there to remove equipment. Officer Bournett then asked Defendant, "Do you know why you are here?" Defendant responded, "Yes, about some stolen equipment that was inside the house." Defendant also stated that he was called by a worker at the property who wanted to sell several items to Defendant for $500. Defendant used a key to unlock the front door and allowed Officer Bournett to enter the property with him. No other persons were present inside the property. In a search incident to his arrest, police recovered more than $500 from Defendant's person. Id. at 11– 13, 16, 21.
Meanwhile, Elhyani was brought to the 2900 block of Jefferson Street where he identified the white construction van as his MK Mechanical work van. Elhyani was then taken to 1431 North 30th Street where he identified several items that either belonged to his company or to him personally including his work jacket, three ladders, refrigerant tanks, and various tools. All of these items were taken from the MK Mechanical work van. The total value of all of the items recovered was in excess of $8000; the total value of the items not recovered — including ...

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