Com. v. Branford, J. (memorandum)

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J -S48025-17 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. JOHNNY T. BRANFORD Appellant No. 2018 MDA 2016 Appeal from the Judgment of Sentence Entered November 2, 2016 In the Court of Common Pleas of Berks County Criminal Division at No: CP-06-CR-0002592-2015 BEFORE: OTT, STABILE, and PLATT,* JJ. FILED AUGUST 01, 2017 MEMORANDUM BY STABILE, J.: Appellant Johnny T. Branford appeals from the November 2, 2016 judgment of sentence entered in the Court of Common Pleas of Berks County ("trial court"), following his jury convictions of two counts of first degree murder, two counts of third degree murder, theft by unlawful taking, access device fraud, possessing instruments of crime, and unauthorized use of an automobile.' Because of Appellant's failure to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal, we remand this matter for the nunc pro tunc and for the preparation and filing of a Rule 1925(b) statement filing of a Rule 1925(a) opinion by the trial court. * ' Retired Senior Judge assigned to the Superior Court. 18 Pa.C.S.A. ยงยง 2502(a), 2502(c), 3921(a), 4106(a)(1)(ii), 907(a), and 3928(a), respectively. J -S48025-17 Following Appellant's counseled filing of a notice of appeal, on December 6, 2016, the trial court ordered him to file statement within 21 days. Appellant failed to comply. a Rule 1925(b) On May 19, 2017, Appellant's counsel filed in this Court an Anders2 brief, claiming that Appellant's convictions were supported by sufficient evidence. 2017, Appellant's counsel filed a petition to withdraw as counsel. On appeal, the Commonwealth Appellant's counsel file a On May 24, correctly points out that at no point did Rule 1925(b) statement in accordance with the trial court's December 6, 2016 order. It is criminal well -settled that failure to file cases is per se ineffective a Rule 1925(b) statement in assistance Commonwealth v. McBride, 957 A.2d 752, 755-56 a result, we remand for filing of a of counsel. (Pa. Super. 2008). As Rule 1925(b) statement nunc pro tunc under Pa.R.A.P. 1925(c)(3).3 Id. at 756. Rule 1925(c)(3) provides: If an appellant in a criminal case was ordered to file a Statement and failed to do so such that the appellate court is convinced 2 3 Anders v. California, 386 See U.S. 738 (1967). We note that Rule 1925(c)(4) also provides: In a criminal case, counsel may file of record and serve on the judge a statement of intent to file an Anders/McClendon brief in lieu of filing a Statement. If, upon review of the Anders/McClendon brief, the appellate court believes that there are arguably meritorious issues for review, those issues will not be waived; instead, the appellate court may remand for the filing of a Statement, a supplemental opinion pursuant to Rule 1925(a), or both. Upon remand, the trial court may, but is not required to, replace appellant's counsel. Pa.R.A.P. 1925(c)(4). -2 J -S48025-17 that counsel has been per se ineffective, the appellate court shall remand for the filing of a Statement nunc pro tunc and for the preparation and filing of an opinion by the judge. Pa.R.A.P. 1925(c)(3). We remand this matter to the trial court and, within 21 days of the trial court's receipt of the record from the Superior Court Prothonotary, the trial court shall order Appellant to file tunc. a Rule 1925(b) statement nunc pro The trial court shall then prepare and file a detailed Rule 1925(a) opinion within 60 days of the filing of the Rule 1925(b) statement. Upon the filing of the Rule 1925(a) opinion, the record is to be returned to this Court within 30 days. At that time, this Court may require the filing of supplemental briefs. Matter remanded with directions to file pro tunc and a Rule 1925(a) opinion. a Rule 1925(b) statement nunc Panel jurisdiction retained. -3

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