Com. v. Simon, T. (concurring memorandum)

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J-S70028-14 NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. TYUAN SIMON, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1161 EDA 2014 Appeal from the Judgment of Sentence Entered September 20, 2013 in the Court of Common Pleas of Montgomery County, Criminal Division at No(s): CP-46-CR-0007840-2012 BEFORE: LAZARUS, MUNDY, and STRASSBURGER,* JJ. FILED DECEMBER 12, 2014 CONCURRING MEMORANDUM BY STRASSBURGER, J.: I join the Majority Memorandum. I write separately because the Majority has identified a conflict in Superior Court case law. Majority Memorandum at 9 n.6. I, like the Majority, agree with the cases which hold that, if an appellant sua sponte files a Pa.R.A.P. 1925(b) statement, then the appellant only preserves the issues raised therein for appeal. See, e.g., Commonwealth v. Nobles, 941 A.2d 50, 52 (Pa. Super. 2008). However, in conflict with these cases is Commonwealth v. Antidormi, 84 A.3d 736, 735, 745 n.7 (Pa. Super. 2014), which concludes that the requirements of Pa.R.A.P. 1925(b) are not invoked when a trial court has not ordered an appellant to file a 1925(b) statement, but the appellant nonetheless files such a statement. In my view, this Court should review this issue en banc in * Retired Senior Judge assigned to the Superior Court. J-S70028-14 order to resolve this conflict in the law. See Commonwealth v. Robinson, 931 A.2d 15, 19 (Pa. Super. 2007) (en banc) (“One function of en banc review is to harmonize or overrule prior precedent if necessary.”). Judge Lazarus joins this concurring memorandum. -2-

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