J-S58036-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant v. ORVAL WALTER WATSON, JR., Appellee No. 507 WDA 2014

Appeal from the Order Dated March 11, 2014 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0001074-2013

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.* DISSENTING MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 06, 2014

dissent. I believe we are compelled to conclude that the Commonwealth has waived its issue for our review and affirm on that basis.

On April 7, 2014, the trial court issued its amended Rule 1925(b) order directing the Commonwealth to file a concise statement within 21 days. The

timely filed and served pursuant to subdivision (b), shall be deemed

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

J-S58036-14

this order was served April 8, 2014. Thirty-five days later, the Commonwealth filed its concise

, the Commonwealth

an unintentional clerical error, the undersigned did not receive either order and was unaware of [the] request [for a Rule 1925(b) statement] by this Honorable

timely filed.

In a footnote, the Majority states that it is overlooking the because the trial

address the merits of a criminal appeal where the appellant failed to file a timely Rule 1925(b) statement if the trial court had adequate opportunity and chose to prepare an opinion addressing the issues being raised on Commonwealth v. Burton, 973 A.2d 428 (Pa. Super. 2008) (en banc) (addressing post-amendment Rule 1925 and ramifications regarding untimely Rule 1925(b) statement)).

en banc decision in Greater Erie Indus. Development Corp. v. Presque Isle Downs, 88 A.3d 222 (Pa. Super. 2014), we expressly rejected application of this precise exception to -2- J-S58036-14

Rule 1925(b) waiver, citing precedent of our Supreme Court. Id. at 224 (citing Commonwealth v. Castillo, 888 A.2d 775, 779-780 (Pa. 2005)).

We declared:

to review the merits of an untimely Rule 1925(b) statement those untimely raised issues. Under current precedent, even if a trial court ignores the untimeliness of a Rule 1925(b) statement and addresses the merits, those claims still must be considered concise statement of [errors] complained of on appeal pursuant to Rule 1925(b), the appellant must Hess v. Fox Rothschild, LLP, 925 A.2d 798, 803 (Pa. Super. 2007) (citing Castillo, 888 A.2d at 780) (emphasis in original); see Feingold v. Hendrzak, 15 A.3d 937, 940 (Pa. Super. 2011).

Id. at 225 (emphasis added).1 In light of Greater Erie, I believe we are bound to deem the

t to accept its Rule 1925(b) statement as timely

Majority Decision at 4 n.2; see Commonwealth v. Taylor, 671 A.2d 235, ation of Rule 1925(b) is expressly reserved to the appellate courts, and not to the trial ____________________________________________

We did recognize in Greater Erie that waiver could be excused if the trial rule. Here, as stated supra er fully complied with the mandates of Rule 1925(b).

-3- J-S58036-14

Commonwealth v. Donahue, 630 A.2d 1238, 1242-

issue waived and affirm the tri

-4-