Commonwealth v. DavisCommonwealth v. Davis
¶ 1 Steven Davis appeals from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County following his conviction on the charges of,
inter alia,
first-degree murder,
1
arson,
2
and conspiracy.
3
In his opinion, the trial judge stated that neither the defendant nor counsel had responded to the court’s order to submit a
¶ 2 Pennsylvania Rule of Criminal Procedure 114(C)(2) provides that all orders and court notices must be docketed, and the docket must contain the date the clerk received the order, the date of the order, and the dаte and manner of service of the order or court notice. In this case, there is no showing that the Philadelphia County clerk of courts ever notified сounsel of the trial court’s order to file a
¶ 8 Michael Wallace, Esquire, an experienced and highly regarded trial attorney, stated in his brief that he never received any request for a Rule 1925(b) statement. He also added that if he did in fact get one and did not respond, that wоuld be ineffectiveness.
¶ 4 Although perhaps it might have been better if Mr. Wallace had also filed an affidavit to that effect, we accept the statement in the brief, as he is an officer of the court. The brief was his first opportunity to respond to the trial judge’s statement in the 1925(a) opinion that Wallace had failed to file a court-ordered Rule 1925(b) statement.
¶ 5 Wallace said the following:
The trial court claims to have forwarded an Order dated March 16, 2001 directing present counsel to file a Statement of Matters Complained of on Appeal. At no time was the Order received and the trial court’s docket entry fails to indicate the method of mailing and to whom the Order was forwarded. In the trial court’s Opinion, it states that present counsel did not comply with the court’s Order directing the filing of a Statement of Matters Complained of on Appeal and as a result, all issues have been waived. Opinion of Smith, J:, at p. 3. Since present counsel did not receive the Order and the trial court’s docket entry fails to indicate the method of mailing and to whom the Order was forwarded, the issues raised in this appeal should not be considered waived. Regardless, present counsel has asserted his own ineffectiveness should this Court conclude that the issues were waived as a result of the failure to file a Statement of Matters Complained of on Appeal.
(Appellant’s Brief, at 9.)
¶ 6 The trial judge never stated that he or his office ever mailed a statement to counsel. The judge merely said that “[njeither the defendant nor, [sic] his counsel have responded to this court’s order.” (Trial Court Opinion, 11/8/2001 at 3.)
¶ 7 Viewing the docket, there is no evidence indicating thаt the clerk of courts ever furnished a copy of the trial court’s Rule 1925(b) order to Davis or his counsel, which is required by
¶ 8 For example, in
Commonwealth v. Hess, supra,
the Pennsylvania Supremе Court was faced with an almost identical fact pattern. The defense attorney in
Hess
claimed he never received a Rule 1925(b) request, but the trial judge nonetheless said “Appellant chose to ignore” its order. The Supreme Court said, “Of course, it is axiomatic that in order for an appellant to be subject to waiver for failing to file a timely Rule 1925(b) statement, the trial court must first issue a 1925(b) order directing him to do so.”
¶ 9 In
Hess,
the Supreme Court referenced two of our cases that reached the same result:
Commonwealth v. Parks,
¶ 10 Here, too, not only is there no indication that the order was ever served, but counsel, as an officer of the court, denies that he ever received it. As our Court did in Phinn and Parks, we accept as true counsel’s good faith assertion that he never received notice, of the trial court’s Rule 1925(b) order where that statement is made in connection with a certified record that does not indicate when or how this alleged notice was sent to appellant.
¶ 11 The requirement that defendants be given notice of the need to file a Rule 1925(b). statement is not a mere technicality. If we are to find that defendants wаived their constitutional rights, we must be sure that the clerk of the court did his or her job to advise the defendants that it was necessary to act.
¶ 12 We have been striсt, in holding appellants to the dictates of
Commonwealth v. Lord,
¶ 13 A request for a Rule 1925(b) statement is optional with the trial judge. Many judges will write their Rule 1925(a) opinions without a Rulе 1925(b) statement when they know the issues from presiding over the trial. If counsel is not advised that an order for a 1925(b) statement is issued, he or she should not have to guess whethеr or not the judge wanted one.
¶ 14 Case remanded. Within 14 days of the receipt of this Opinion, the trial judge is directed to issue a new order requiring Davis to file a