In Re: Order Amending Rule 1925 of the Pennsylvania Rules of Appellate Procedure ( 2021 )

Rule 1925. Opinion in Support of Order.
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(c) Remand.
(1) An appellate court may remand in either a civil or criminal case for a
determination as to whether a Statement had been filed and/or served or timely
filed and/or served.
(2) Upon application of the appellant and for good cause shown, an
appellate court may remand in a civil case for the filing or service nunc pro tunc
of a Statement or for amendment or supplementation of a timely filed and served
Statement and for a concurrent supplemental opinion. If an appellant has a
statutory or rule-based right to counsel, good cause shown includes a failure by
counsel to file or serve a Statement timely or at all.
(3) If an appellant represented by counsel in a criminal case was ordered
to file and serve a Statement and either failed to do so, or untimely filed or
served a[n untimely] Statement, such that the appellate court is convinced that
counsel has been per se ineffective, and the trial court did not file an opinion, the
appellate court may remand for appointment of new counsel, the filing or service
of a Statement nunc pro tunc, and the preparation and filing of an opinion by the
judge.
(4) [In a criminal case] If counsel intends to seek to withdraw in a
criminal case pursuant to Anders/Santiago or if counsel intends to seek to
withdraw in a post-conviction relief appeal pursuant to Turner/Finley, counsel
[may] shall file of record and serve on the judge a statement of intent to [file an
Anders/Santiago brief] withdraw in lieu of filing a Statement. If[, upon review
of the Anders/Santiago brief,] the appellate court believes [that] there are
arguably meritorious issues for review, those issues will not be waived; instead,
the appellate court [may] shall remand for the filing and service of a Statement
pursuant to Pa.R.A.P. 1925(b), a supplemental opinion pursuant to Pa.R.A.P.
1925(a), or both. Upon remand, the trial court may, but is not required to, replace
an appellant’s counsel.
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Official Note:
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Subparagraph (c)(1): This subparagraph applies to both civil and criminal cases and
allows an appellate court to seek additional information—whether by supplementation of
the record or additional briefing—if it is not apparent whether an initial or supplemental
Statement was filed and/or served or timely filed and/or served.
Subparagraph (c)(2): This subparagraph allows an appellate court to remand a civil case
to allow an initial, amended, or supplemental Statement and/or a supplemental opinion.
See also 42 Pa.C.S. § 706. In 2019, the rule was amended to clarify that for those civil
appellants who have a statutory or rule[s]-based right to counsel (such as appellants in
post-conviction relief, juvenile, parental termination, or civil commitment proceedings)
good cause includes a failure of counsel to file a Statement or a timely Statement.
Subparagraph (c)(3): This subparagraph allows an appellate court to remand in criminal
cases only when an appellant, who is represented by counsel, has completely failed to
respond to an order to file and serve a Statement or has failed to do so timely. It is thus
narrower than subparagraph (c)(2). See, e.g., Commonwealth v. Burton, 973 A.2d 428,
431 (Pa. Super. 2009); Commonwealth v. Halley, 870 A.2d 795, 801 (Pa. 2005);
Commonwealth v. West, 883 A.2d 654, 657 (Pa. Super. 2005). Per se ineffectiveness
applies in all circumstances in which an appeal is completely foreclosed by counsel’s
actions, but not in circumstances in which the actions narrow or serve to foreclose the
appeal in part. Commonwealth v. Rosado, 150 A.3d 425, 433-35 (Pa. 2016). Pro se
appellants are excluded from this exception to the waiver doctrine as set forth in
Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998).
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; see also Burton (late filing of
Statement is per se ineffective assistance of counsel). The procedure set forth in West
is codified in subparagraph (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 subparagraph does not raise the concerns addressed in Johnson v.
Mississippi, 486 U.S. 578, 588-89 (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.)
Subparagraph (c)(4): [This subparagraph clarifies the special expectations and
duties of a criminal lawyer. Even lawyers seeking to withdraw pursuant to the
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procedures set forth in Anders v. California, 386 U.S. 738 (1967)
and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) are obligated to comply
with all rules. However, because a lawyer will not file an Anders/Santiago brief
without concluding that there are no non-frivolous issues to raise on appeal, this
amendment allows a lawyer to file, in lieu of a Statement, a representation that no
errors are asserted because the lawyer is (or intends to be) seeking to withdraw
under Anders/Santiago. At that point, the appellate court will reverse or remand
for a supplemental Statement and/or opinion if it finds potentially non-frivolous
issues during its constitutionally required review of the record.]
See Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009); Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). These procedures do not
relieve counsel of the obligation to comply with all other rules.
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