Lead Opinion
OPINION
In this сriminal case, the issue before the Court is whether Pa. R.Crim. P. 1410 precludes an appellate court from deeming an issue waived when an Appellant fails to raise that issue in his Statement of Matters Complained of on Appeal pursuant to Pa. R.A.P.1925(b).
In April of 1992, David Mucker, a narcotics detective, was working undercover in Jim’s Bar in Norwood Borough. At that time, Mucker became associated with a woman named Maryann Goldy. Mucker purchased methamphetamine from Goldy on several different occasions. On some of these occasions, Goldy had the methamphetamine with her; other times, she made a phone call to procure it.
On one of these occasions, Mucker gave Goldy $340 for two “eightballs” of methamphetamine. Goldy then telephoned a man she referred to as “Frank.” A short time later, Goldy met Appellant in the bar. The pair then left the bar and met outside. Two other detectives, who were parked in a van about fifty feet from the bar, observеd as Goldy handed Appellant cash in exchange for an unidentifiable item. Forty-five seconds after this exchange, Goldy handed Mucker the methamphetamine.
Appellant was subsequently arrested and charged with possession of a controlled substance, delivery or possession with intent to deliver a controlled substance, possession of drug paraphernalia, and criminal cоnspiracy. On August 5, 1994, the jury returned a guilty verdict on the charges of delivery of a controlled substance and criminal conspiracy. Appellant filed a timely appeal and submitted a Statement оf Matters Complained of on Appeal with the trial court pursuant to Pa. R.A.P.1925(b).
On appeal to the Superior Court, Appellant raised ten issues. The Superior Court addressed five of these issues, dеeming the remaining five issues waived due to Appellant’s failure to
Appellant filed a Petition for Allowance of Appeаl with this Court. We granted allocatur limited to the issue of whether Pa. R.Crim. P. 1410 precludes an appellate court from asserting the waiver of an appellate issue because that issue was omittеd from the Statement of Matters Complained of on Appeal.
Pa. R.A.P.1925 provides, in pertinent part:
(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 mаtters complained of on the appeal no later than 14 days after entry of such order. A failure to comply with such direction may be*418 considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of.
Pursuant to this rule, issues have been considered waived where no 1925(b) statement was filed or where an issue was not included in a filed statement. See, e.g., Commonwealth v. Phillips,
New Pa. R.Crim. P. 1410 states, in pertinent part:
Issues raised before or during trial shall be deemed preserved for appeal whether or not the defendant elects to file a post-sentence motion on thоse issues.
Pa. R.Crim. P. 1410(B)(1)(c).
Although not binding, the Comment to Rule 1410 explains that under subsection (B)(1)(c),
any issue raised before or during trial is deemed preserved for appeal whether or not the defendant chooses tо raise the issue in a post-sentence motion. It follows that the failure to brief or argue an issue in the post-sentence motion would not waive that issue on appeal as long as the issue wаs properly preserved, in the first instance, before or during trial.
In the present case, the Commonwealth asserts that the changes to Rule 1410 should not be construed to have any effect on the waiver language of Rule 1925(b). The Commonwealth argues that appellate issues should be waived where a party has failed to comply with a trial court’s order that it produce a 1925(b) statement, but otherwise, where no 1925(b) statement is ordered, all issues properly preserved during trial should be preserved for appeal in accordance with Rule 1410. We agree with the Commonwealth’s argument in part.
Since the enactment of new Rule 1410, the lower courts have struggled to discern what impact, if any, the new rule was intended to have on Pa. R.A.P.1925. The lower courts seem to have conсluded that the new rule has alleviated
On the other hand, new Rule 1410 was intended to eliminate the “double waiver” doctrine. As the Superior Court explained in Cortes:
Prior practice required that to preserve an issue for appeal, thе matter must have been raised initially when it occurred either before or during trial, and then be included in the Post-verdict Motion. Failure to include an issue in the Post-verdict Motion resulted in it being waived on appeal and often led to subsequent attacks on the conviction claiming counsel’s ineffectiveness. New Rule 1410 was intended to eliminate this cumbersome process and allow the first appeal to address the issues properly raised before and during trial.
Id. at 261,
After examining the intent behind Rule 1410 and the importance of Rule 1925 to the appellate process, we conclude that thе Rules are not in conflict.
Accordingly, we remand the instant matter to the Court of Common Pleas so Appellant may file a supplemental 1925(b) statement to include the additional five issues he raised on appeal.
Jurisdiction relinquished.
Notes
. The following five issues were treated as waived:
(1) Whether the trial court erred in failing to grant a motion for mistrial when a second Commonwealth witness volunteered that, based on his expertise, a transaction occurred between the defendant and his alleged co-cоnspirator.
(2) Whether the trial court erred in overruling defense objections to the speculations and unsupported conclusions of a police witness.
(3) Whether the trial court erred when it permitted a character witness to be questioned about the facts unrelated to defendant’s reputation.
(4) Whether the trial court erred in failing to address several inappropriate сomments in the prosecutor's summation.
(5) Whether the tried court erred in omitting from its charge to the jury on the crime of conspiracy instructions on mere presence, association and knowlеdge and in charging the jury on expert testimony when none was properly admitted.
. Because of the extensive changes to Rule 1410, a completely new rule was adopted on March 22, 1993 and is еffective for determinations of guilt occurring after January 1, 1994.
. Although we disagree with the ultimate conclusion of the Superior Court in Cortes, we believe that the court’s explanation of the double waiver doctrine is accurate.
. We note that the trial court judge who presided over this matter, the Honorable Anthony Semararo, is deceased. As a result, it will be necessary for the President Judge to reassign this case to another Common Pleas Court judge.
Concurrence Opinion
concurring.
Although I concur in the result reached by the Majority, I write separately to clarify the interplay between Rule 1410(B)(1)(c) and Rule 1925(b). The Majority notеs that, “the potential for construing Rule 1410 as the exclusive provision for preserving an appellate issue is understandable.” Majority at 420,