Commonwealth v. Hill
Commonwealth v. Hill
Opinion of the Court
OPINION
Appellant Donnetta Hill appeals from the Order of the Court of Common Pleas of Philadelphia County, dismissing the guilt-phase claims in her petition brought under the Post
On April 6, 1992, a jury sitting before the Honorable Marvin R. Halbert of the Court of Common Pleas of Philadelphia County, convicted appellant of two counts of first-degree murder, possession of an instrument of crime, and robbery. The convictions arose from the murders of Nghia Quy Lu and Nairobi Dupont.
Represented by new counsel, Lynne Bennett-Hamlin, Esquire, appellant filed a direct appeal in this Court. On direct appeal, this Court unanimously affirmed appellant’s convictions and judgments of sentence. Commonwealth v. Hill, 666 A.2d at 642.
On April 17, 1997, appellant filed a timely, counseled PCRA petition, raising 23 claims. The Commonwealth filed a motion to dismiss. On February 19, 1999, appellant filed a supplement to her PCRA petition, raising three additional claims. The Commonwealth supplemented its motion to dismiss on August 24, 1999. The case ultimately was reassigned to the Honorable Willis Berry, Jr. Both the Commonwealth and appellant requested and were granted continuances. On November 30, 2005, appellant filed a second supplement to her PCRA petition.
On December 9, 2005, with the PCRA court, the Commonwealth, and appellant in agreement, the PCRA court granted appellant penalty-phase relief, vacated her sentences of death, and ordered a new penalty hearing.
On March 21, 2006, the Commonwealth moved to dismiss appellant’s supplemented PCRA petition. On April 17, 2006,
The PCRA court held evidentiary hearings on August 8 and 9, 2006. On August 14, 2006, the PCRA court issued an order, dismissing all of appellant’s guilt-phase claims, stating that: appellant’s collateral Batson claim was dismissed following a hearing; the balance of appellant’s claims were meritless and dismissed without a hearing; and the court’s determination to grant penalty-phase relief remained in full force and effect.
On September 6, 2006, appellant filed a notice of appeal with this Court from the PCRA court’s August 14, 2006 order. Apparently, appellant also filed a “Jurisdictional Statement for Petitioner’s Appeal of the Denial of a New Trial” (“Jurisdictional Statement”) on that same day.
Meanwhile, on February 9, 2007, the PCRA court issued an order under Pa.R.A.P. 1925(b), directing that appellant file and serve a statement of the matters she intended to raise on appeal within 14 days. The Order directed appellant to file the original with the Court of Common Pleas Appeals Unit, with a copy provided to the PCRA judge and the Common
On January 9, 2009, appellant filed her Brief in this Court, providing argument on all but one of the 15 guilt-phase claims listed in her Jurisdictional Statement.
We first consider the threshold matter of appellant’s failure to file a Rule 1925(b) statement, as ordered by the PCRA court.
In response, appellant does not counter the Commonwealth’s assertion that her failure to file a Rule 1925(b) statement as ordered results in a waiver of appellate issues under settled jurisprudence interpreting the Rule. Indeed, appellant remarkably does not discuss Lord and its progeny at all. Rather, appellant focuses on the Commonwealth’s request that, because no Rule 1925(b) statement was filed, her federal counsel should be removed from continuing to represent her in state court. In the context of that rebuttal, appellant contends that counsel’s removal is unwarranted because, even though counsel never filed a Rule 1925(b) statement as ordered, counsel’s non-record conduct complied with instructions conveyed by the PCRA court’s “chambers” in a series of ex parte contacts.
More specifically, appellant represents that the following ex parte contacts transpired between Attorney Nolas and the PCRA court’s chambers. At some unspecified point in time after appellant was granted additional time to file her Rule 1925(b) statement, the PCRA court’s chambers contacted Nolas. Nolas responded that appellant had filed a Jurisdictional Statement setting forth the issues that appellant intended to raise on appeal.
Appellant does not suggest that these ex parte contacts were ever made known to the Commonwealth; that counsel copied the Commonwealth with the “PCRA Appellate Issues” document; that counsel ever sought to make the “PCRA Appellate Issues” document part of the record; or that appellant ever sought to have the Rule 1925(b) order vacated. Appellant nevertheless claims that, through these ex parte contacts, the PCRA court recognized that her issues on appeal were those set forth in her Jurisdictional Statement. Appellant then claims that, to the extent the court did not address all of her issues and this Court’s review function is impeded, a remand for the limited purpose of having the PCRA court supplement its opinion to resolve unaddressed claims should be ordered.
Appellant argues, in the alternative, that even if her counsel could be found to have violated Rule 1925(b), such an error does not require removal of the Federal Defender. Appellant notes that counsel was not removed in Commonwealth v. West, 883 A.2d 654 (Pa.Super. 2005). In that case, the Superi- or Court found merit in the claim raised by direct appeal counsel, the Defender Association of Philadelphia (“Defender Association”), that it had been per se ineffective for failing to file a Rule 1925(b) statement. Appellant notes that the court remanded for the filing of the statement, but left it to the trial court to determine whether to remove the Defender Association based upon counsel’s ineffectiveness. Appellant also asserts that the Federal Defender is the counsel of her choice and its removal would be contrary to what she claims is a “right” to taxpayer-financed counsel of her choice. Appellant contends that the Federal Defender has protected her inter
We begin with the prior version of Rule 1925(b), for that is controlling here. The Rule then provided, in relevant part: Rule 1925. Opinion in Support of Order
(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 matters complained of on the appeal no later than 14 days after entry of such order. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of.
Pa.R.A.P. 1925 (1988).
In several decisions, this Court has addressed the consequences of the appellant’s failure to comply with the simple
Three years later, in Butler, a non-capital PCRA appeal involving a first-degree murder conviction, we reviewed and upheld the Superior Court’s order dismissing the defendant’s appellate issues as waived because of his failure to file a Rule 1925(b) statement, as ordered. We so held notwithstanding that the PCRA court had issued a Rule 1925(a) opinion addressing the claims the appellant had set forth in his PCRA petition. We reaffirmed that our decision in Lord “eliminated any discretion [in the lower courts] and established a bright-line rule for waiver under Rule 1925(b)[.]” 812 A.2d at 633.
Following Lord and Butler, and despite their respective holdings, it appeared that the trial and intermediate appellate courts continued to engage in merits review of issues raised in untimely or otherwise procedurally noncompliant Rule 1925(b) statements. See Gravely, 970 A.2d at 1141. Therefore, in Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005), and its companion case, Commonwealth v. Schofield, 585 Pa. 389, 888 A.2d 771 (2005), we granted allocatur to reconsider our decisions in Lord and Butler as to whether the lower courts should have the discretion to review an issue that was not raised in a timely and properly filed Rule 1925(b) statement. Commonwealth v. Castillo, 580 Pa. 3, 858 A.2d 1156 (2004); Commonwealth v. Schofield, 580 Pa. 4, 858 A.2d 1157 (2004).
In Castillo, the appellant did not file his Rule 1925(b) statement within 14 days of the trial court’s order, as Rule 1925(b) required, but filed it approximately 50 days thereafter. Nonetheless, the Superior Court did not deem the appellant’s
Subsequently, in Wholaver, a capital direct appeal, the appellant failed to file a Rule 1925(b) statement as directed by the trial court. Observing that we had recently reaffirmed Lord’s strict waiver rule in Castillo and Schofield, this Court rejected the appellant’s argument that waiver should not apply, since all of his claims were addressed by the trial court in its Rule 1925(a) opinion or in other dispositive rulings. We
Finally, in Gravely, this Court considered whether the Superior Court correctly determined that a Rule 1925(b) statement, not filed on the day the trial court had ordered, but some six weeks later, was untimely, even though the appellant asked for and received an oral extension of time from the trial court within which to file his statement and confirmed the request by letters that were entered on the docket and made part of the certified record. We concluded that the Superior Court erred, in light of the appellant’s efforts to preserve his appellate rights, the lack of clarity in the Rule itself as to the proper method of securing an extension of time for filing, and the record, which showed that the trial court and the appellant took steps to satisfy Rule 1925(b)’s mandatory requirements. We stated:
Appellant moved swiftly to preserve his right to raise issues on appeal. His actions demonstrated the kind of “proactive” conduct this Court noted with approval in Castillo. Although Appellant’s request for an extension was made orally (as was the trial court’s grant of the extension), both the request and the grant were accomplished within [Rule*426 1925(b)’s] 14-day time limit. Further, Appellant confirmed those facts in a letter, which he promptly filed with the court, also within the 14-day time limit. At the time of these events, the law was clear that appellants were required to file timely Statements, but there was no specific method set out in the Rule directing the manner in which an extension could be sought or should be granted. In fact, this Court had not yet handed down its decision in Castillo. Nonetheless, the record reflects that both Appellant and the trial court took steps to comply with Lord and its clear mandate that the terms of Rule 1925(b) were mandatory. Because the record establishes that Appellant acted promptly and proactively to preserve his rights on the record, and because the trial court approved counsel’s actions and granted counsel’s request for an extension of time, we cannot sustain the Superior Court’s finding of waiver.
970 A.2d at 1144 (emphasis in original) (footnotes omitted).
With these decisions and principles in mind, there can be no question that all of appellant’s issues are waived due to her failure to file and serve a Rule 1925(b) statement, as ordered.
Our jurisprudence is clear and well-settled, and firmly establishes that: Rule 1925(b) sets out a simple bright-line rule, which obligates an appellant to file and serve a Rule 1925(b) statement, when so ordered; any issues not raised in a Rule 1925(b) statement will be deemed waived; the courts lack the authority to countenance deviations from the Rule’s terms; the Rule’s provisions are not subject to ad hoc exceptions or selective enforcement; appellants and their counsel are responsible for complying with the Rule’s requirements; Rule 1925 violations may be raised by the appellate court sua sponte, and the Rule applies notwithstanding an appellee’s request not to enforce it; and, if Rule 1925 is not clear as to what is required of an appellant, on-the-record actions taken by the appellant aimed at compliance may satisfy the Rule.
The contrary disposition the Commonwealth seeks in these circumstances — the removal of appellant’s counsel and the remand of this case for the appointment of new counsel and the filing of a Rule 1925(b) statement and a supplemental Rule 1925(a) opinion — simply cannot be granted under our settled jurisprudence. Notably, we rejected a similar request by the appellee to overlook a Rule 1925(b) failure in Wholaver;
Nor are we persuaded by the specific argument forwarded by the Commonwealth here. The Commonwealth’s request is premised on the remand procedure added to Rule 1925 in 2007, specifically the procedure now set forth in subsection (c)(3) of the Rule, as amended. But, as noted, amended Rule 1925 does not apply in this appeal; it is the 1988 version of Rule 1925(b) that controls. The 1988 version of Rule 1925 does not include the remand procedure the Commonwealth cites. And, equally problematic is the fact that a retroactive application of amended Rule 1925 — as the amendment is interpreted by the Commonwealth
Of course, the West case, which appellant cites in support of her claim that counsel should not be replaced, itself existed before Rule 1925 was amended, and indeed was the occasion for the 2007 amendment. But, West does not support remanding this PCRA appeal to allow for the filing of a proper Rule 1925(b) statement, whether by present counsel or new counsel.
Turning to the ineffectiveness claim first, the Superior Court concluded that all of the appellant’s appellate issues were waived under Lord due to counsel’s failure to file a Rule 1925(b) statement; counsel’s lapse was an actual or constructive denial of counsel, meaning, for purposes of ineffectiveness analysis, prejudice was to be presumed under Halley; and the ineffectiveness claim could and should be more efficiently addressed on direct appeal rather than be deferred to the collateral review stage under Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726, 738 & n. 14 (2002), merely to have the direct appeal reinstated nunc pro tunc. By way of relief, the Superior Court remanded the case to the trial court for the filing of a Rule 1925(b) statement and a supplemental Rule 1925(a) opinion, and left the decision of appointing new counsel to the trial court. West, 883 A.2d at 658.
The remand procedure that the West case established for Superior Court direct criminal appeals was aimed at devising
Neither West, nor the 2007 Wesi-inspired amendment to Rule 1925 for that matter, supplanted this Court’s Rule 1925(b) waiver jurisprudence. West adopted efficiencies in the direct appeal context, involving an issue frequently arising in Superior Court, and bottomed in existing, remedial caselaw. By contrast, this case is an appeal from an order denying collateral relief. The decisional law makes clear that Rule 1925 defaults by counsel on direct appeal may be litigated and remedied under the guise of ineffectiveness of counsel at the PCRA stage; West merely accelerates the remedy. But, there is, as yet, no decisional law holding that Rule 1925 defaults by counsel at the PCRA appeal stage are available, and remediable, via a serial PCRA petition. Thus, a West-type procedure here would not amount to an efficiency adopted in furtherance of judicial economy, premised upon decisional law making clear that the same remedy would eventually result on collateral attack. There is no obviously available future and collateral remedy that may properly and efficiently be advanced. Rather, adopting a Wesi-type procedure on collateral appeals would amount to assuming that this Court would hold, in a case or cases presenting the issues, that (1) this sort of default is cognizable under the PCRA’s serial petition and time-bar restrictions; and (2) that holding, should it materialize, warrants adopting an efficiency on a first PCRA appeal that would eliminate the necessity to proceed via a
For the foregoing reasons, we affirm the order of the PCRA court, dismissing the guilt-phase claims in appellant’s PCRA petition, but on different grounds. We affirm the order of the PCRA court based on waiver under Rule 1925(b).
. In December of 2005, the PCRA court granted appellant penalty-phase relief. Under Commonwealth v. Bryant, 566 Pa. 307, 780 A.2d 646 (2001), a new penalty phase has been deferred pending the disposition of the instant appeal. Id. at 648 ("[T]he orderly administration of justice requires that review of the PCRA court’s decision denying guilt phase relief should precede the imposition of a new sentence by the trial court.”). This Court retains jurisdiction under 42 Pa.C.S. § 9546(d). Id. ("[T]he legislature did not require that the sentence of death be actually pending in order for this Court to have jurisdiction [under § 9546(d) ].”).
. The facts underlying appellant’s convictions are set forth in detail in Commonwealth v. Hill, 542 Pa. 291, 666 A.2d 642 (1995).
. Lawyers with the PPDO, including Attorney Nolas, were subsequently absorbed by the Defender Association of Philadelphia, Federal Court Division, Capital Habeas Unit ("Federal Defender”).
. Under Pa.R.A.P. 909, upon filing a notice of appeal, the appellant must file a jurisdictional statement in the trial court. Under Pa.R.A.P. 910, the jurisdictional statement is to contain a reference to the reports of the opinions of the courts below; a statement of the basis for this Court's jurisdiction; the text of the order in question; a concise statement of the procedural history of the case; and the questions presented for review.
. Appellant has not pursued her collateral Batson claim regarding jury selection.
. Presently, it is undisputed that appellant did not file and serve upon the PCRA court a Rule 1925(b) statement, as ordered, and thus violated the PCRA court’s directive.
. Rule 1925 was extensively amended on May 10, 2007, effective July 27, 2007. The Rule was again amended on January 13, 2009, effective
Rule 1925. Opinion in Support of Order
(c) Remand.
(3) 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 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 recognize that appellant alleges that the contacts detailed infra were initiated by the "chambers” of the PCRA judge, rather than
. In appeals to this Court, the jurisdictional statement is filed with the prothonotary of the trial court. Pa.R.A.P. 909. Although the statement must contain the questions presented for review, as stated in Rule 910, unlike Rule 1925(b), there is no requirement to serve the trial judge, thus ensuring that the trial court has been apprised of the issues to be raised on appeal. Id. Rules 909, 910. Nor is there any suggestion, in the rules governing jurisdictional statements or Rule 1925, that one statement may serve the function of another. In short, the jurisdictional statement is not a substitute for a Rule 1925(b) statement. See Commonwealth v. Ligons, 601 Pa. 103, 971 A.2d 1125, 1161 (2009) (Castille, C.J., joined by Eakin and McCaffery, JJ., concurring) (jurisdictional statement did not preserve claims for appeal; claims must be raised in trial court and, when appeal is filed, preserved claims may be winnowed and renewed in Statement of Matters Complained of on Appeal, if trial judge requests such statement).
. Appellant also posits that a limited remand to the lower court for fact-finding could be ordered, if there is any question as to the ex parte events counsel recounts. Given our disposition infra, which assumes the accuracy of counsel's extra-record assertions for purposes of decision, we need not remand.
. As noted, Rule 1925(b) was amended in May 2007, effective on July 27, 2007, and again, on January 13, 2009, effective 60 days thereafter. This appeal was filed on September 6, 2006, and the court’s Rule 1925(b) orders were entered prior to the 2007 and 2009 amendments. Thus, the 1988 version of the Rule, in effect on September 6, 2006,
In this Opinion, references to "Rule 1925” or the "Rule” are to the Rule's 1988 controlling version; references to "Rule 1925, as amended” or "amended Rule 1925" are to later versions of the Rule.
. Unlike on a direct capital appeal, such as Wholaver, there are no statutory issues that must be reached on capital PCRA appeals, regardless of waiver.
. This Court's most recent Rule 1925(b) case, Berg v. Nationwide Mut. Ins. Co., 6 A.3d 1002 (Pa. 2010) (Opinion Announcing Judgment of the Court), does not alter this paradigm. Berg concerned whether the appellants fulfilled the service requirements of Rule 1925(b), in a context involving the effect, if any, of the fact that the trial court’s order to file and serve a Rule 1925(b) statement itself did not comply with Rule 1925. The Court’s majority mandate was that, under the circumstances presented, the Rule's waiver provision should not apply.
. We need not determine whether the circumstances presented would satisfy the terms of amended Rule 1925(c)(3), if the amendment applied. We note, however, that the amendment speaks of remand only in "criminal cases.” Technically, the PCRA is civil in nature. See Commonwealth v. Haag, 570 Pa. 289, 809 A.2d 271, 284 (2002) ("The PCRA system is not part of the criminal proceeding itself, but civil in nature.”) (citing Pennsylvania v. Finley, 481 U.S. 551, 557, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987)). Moreover, according to the Note to the amended Rule, amended subsection (c)(3) is intended to codify the procedure the Superior Court devised in Commonwealth v. West, supra, which was neither a Rule 1925(b) case nor a PCRA appeal. See discussion in text, infra.
. The Note to amended Rule 1925(c) makes clear that subsection (c)(3) codifies the procedure in West. The Note provides:
Paragraph (c)(3) This paragraph allows an appellate court to remand in criminal cases only when the appellant has completely failed to respond to an order to file a Statement. It is thus narrower than (c)(2),- above. Prior to these amendments of this rule, the appeal was quashed if no timely Statement was filed or served; however, because the failure to file and serve a timely Statement is a failure to perfect the appeal, it is presumptively prejudicial and “clear” ineffectiveness. See, e.g., Commonwealth v. Halley, 582 Pa. 164, 172, 870 A.2d 795, 801 (2005); Commonwealth v. West, 883 A.2d 654, 657 (Pa.Super. 2005). Direct appeal rights have typically been restored through a post-conviction relief process, but when the ineffectiveness is apparent and per se, the court in West recognized that the more effective way to resolve such per se ineffectiveness is to remand for the filing of a Statement and opinion. See West, 883 A.2d at 657. The procedure set forth in West is codified in paragraph (c)(3). As the West court recognized, this rationale does not apply when waiver occurs due to the improper filing of a Statement. In such circumstances, relief may occur only through the post-conviction relief process and only upon demonstration by the appellant that, but for the deficiency of counsel, it was reasonably probable that the appeal would have been successful. An appellant must be able to identify per se ineffectiveness to secure a remand under this section, and any appellant who is able to demonstrate per se ineffectiveness is entitled to a remand. Accordingly, this paragraph does not raise the concerns addressed in Johnson v. Mississippi, 486 U.S. 578, 588-89, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988) (observing that where a rule has not been consistently or regularly applied, it is not — under federal law — an adequate and independent state ground for affirming petitioner's conviction.)
. We note that, in the distinct context of a serial PCRA petition, this Court has recognized the potential cognizability of a claim of ineffective assistance of counsel premised upon counsel abandonment. See Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264 (2007) (involving failure to file brief on PCRA appeal which, under practice since eliminated by Superior Court, resulted in dismissal of appeal; claim deemed sufficient to warrant remand for consideration under exception to PCRA time-bar set forth in 42 Pa.C.S. § 9545(b)(1)(ii) (governing previously unknown facts)).
. We reiterate that this appeal is also unlike West because it is the Commonwealth, not appellant, who asserts that appellant’s counsel was ineffective for failing to file a Rule 1925(b) statement, as ordered. Indeed, appellant refutes the Commonwealth’s allegations, asserting that counsel’s non-record conduct amounted to alternative compliance with the purpose of the Rule, an assertion that fails to acknowledge or discuss Lord and this Court’s ensuing Rule 1925(b) jurisprudence.
Furthermore, we note that even if appellant had raised present counsel’s ineffectiveness for failing to file a Rule 1925(b) statement, as West did, such a claim would not be cognizable in this collateral direct appeal under recent decisions of this Court. See Commonwealth v. Colavita, 993 A.2d 874, 893 n. 12 (Pa. 2010); ("Claims of PCRA counsel ineffectiveness may not be raised for the first time at the direct appeal level....”); Commonwealth v. Pitts, 603 Pa. 1, 981 A.2d 875, 880 n. 4 (2009).
. We have determined that this appeal is not the proper vehicle for consideration of the Commonwealth’s request that this Court exercise its power to supervise the conduct of attorneys with regard to the Federal Defender’s proper use of federal tax dollars in state court litigation. We perceive no relationship between that issue, as articulated by the Commonwealth, and the appellate issues before us.
Dissenting Opinion
dissenting.
I supported the rule of substantial compliance advanced in the lead opinion in Berg v. Nationwide Mutual Insurance Co.,
I find the decision in Commonwealth v. Wholaver, 588 Pa. 218, 903 A.2d 1178 (2006), to be distinguishable, since, as the Court highlighted there, reinstatement of direct-appeal rights was available to remedy derelictions of counsel. See id. at 228-29, 903 A.2d at 1184-85.
I fully appreciate the majority’s concerns with ex parte contacts and tactical behavior on the part of litigants, as well as with consistency in the administration of justice. Nevertheless, particularly given that the Court now strongly discourages the presentation of constitutional claims of deficient stewardship at the direct-appeal stage, see Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), it is my position that the availability of one round of post-conviction review should not be impaired by rules of literal compliance. Thus, at least in light of the ongoing developments in this area — including the apparent curtailment of an enforcement mechanism to assure the evenhanded enforcement of a capital post-conviction petitioner’s rule-based right to assistance of counsel and the concomitant requirement of effective stewardship — I am
. Indeed, such relief was subsequently afforded to Wholaver. See Commonwealth v. Wholaver, 605 Pa. 325, 336-40, 989 A.2d 883, 890-91 (2010).
Reference
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- COMMONWEALTH of Pennsylvania, Appellee v. Donnetta HILL, Appellant
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