Com. of PA v. J.M. DeMaske ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania :
:
v. :
:
John M. DeMaske, : No. 770 C.D. 2019
Appellant : Submitted: December 13, 2021
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: January 4, 2022
John M. DeMaske (Appellant) appeals from the judgment of sentence
entered in the Court of Common Pleas of Greene County (trial court) following his
jury trial convictions for six (6) counts of unlawful killing or taking of big game, in
violation of the Game and Wildlife Code,1 34 Pa.C.S. § 2321(a)(2). After careful
review, we remand this matter to the trial court for the filing, nunc pro tunc, of a
concise statement of errors complained of on appeal pursuant to Pennsylvania Rule
of Appellate Procedure 1925(b) and the issuance by the trial court of an opinion
pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).
1
34 Pa.C.S. §§ 101-2965.
The relevant facts and procedural history of this appeal are as follows.
On November 15, 2015, Appellant presented at the home of Lonnie Starcher.2 See
Notes of Testimony, May 31, 2018 (N.T. 5/31/2018) at 51, 75-76, 186. Appellant
had eight deer antler racks in his truck, which he removed and placed in a storage
shed on the property owned and used by the DeMaske family.3 See id. at 76.
On November 20, 2015, the Pennsylvania Game Commission received
an anonymous report regarding deer antlers being stored at Starcher’s residence. See
N.T. 5/31/2018 at 50-51. As a result, multiple game wardens arrived at the residence
on the evening of November 20, 2015, and discovered eight racks of antlers in the
storage shed, seven of which appeared fairly fresh with blood and brain matter still
attached.4 See id. at 51-52, 65, 72-73. The game wardens photographed and seized
the antlers. See id. at 52.
On November 21, 2015, multiple game wardens visited Appellant’s
home, where they encountered Appellant. See N.T. 5/31/2018 at 68, 89, 94-95, 99.
Appellant gave a statement to the wardens regarding the deer antlers while seated in
the passenger’s seat of the wardens’ vehicle. See id. During the interview, Appellant
admitted to the game wardens that he had delivered the antlers to the shed at
Starcher’s. See N.T. 5/31/2018 at 89-90. He further admitted that he killed three
2
Starcher rents a house on property owned by Appellant’s father, Marko DeMaske, with
whom Starcher has a good relationship. See Notes of Testimony, May 31, 2018 (N.T. 5/31/2018),
at 65, 75, 77 & 80.
3
Starcher explained that he stores some Christmas things and a lawn mower in the shed,
but that otherwise the DeMaske family owns the storage shed and accesses it to store things therein
at their convenience. See N.T. 5/31/2018 at 80.
4
The eighth antler rack appeared to the game wardens to be an old rack. See N.T.
5/31/2018 at 52, 69.
2
deer with a crossbow during the hunting season, although he was only supposed to
kill one. See N.T. 5/31/2018 at 90, 98-99, 178. At trial, Appellant testified that he
did not intentionally kill three deer in violation of the rules. See N.T. 5/31/2018 at
178. Instead, Appellant explained that he had shot the first deer and tried to track it,
without success. See N.T. 5/31/2018 at 90-91, 99, 178. Appellant explained that he
thereafter shot and killed a second deer, then found the carcass of the first deer before
shooting and killing a third deer with the aid of his father, Marko DeMaske.5 See
N.T. 5/31/2018 at 90-91, 99-100, 179. Appellant also explained that three of the
deer antlers in the shed came from roadkill and another was killed by Kevin Jenkins,
another renter.6 See N.T. 5/31/2018 at 90. Appellant also voluntarily showed the
game wardens pictures of the deer that were on his phone, which the wardens
confiscated. See N.T. 5/31/2018 at 93, 103. The game wardens also confiscated
Appellant’s two crossbows during the interview. See N.T. 5/31/2018 at 93-94, 98-
99, 110, 177.
Regarding licensing, Appellant possessed only one tag to harvest an
antlered deer in Pennsylvania during the 2015 hunting season. See 5/31/2018 at 141,
148. Appellant did not have a hunting license from West Virginia or Ohio for 2015,
and he did not report any harvest in 2015 to the Pennsylvania Game Commission.
See 5/31/2018 at 141, 153-55.
5
Game wardens also charged Marko DeMaske with multiple counts of unlawful killing or
taking of big game, but later dropped those charges. See N.T. 5/31/2018 at 71, 101.
6
This version comes from the game wardens’ – Officers Steve King, Michael Lubic, and
Brandon Bodin – testimony as to what Appellant told the authorities. See N.T. 5/31/2018 at 49-
73, 88-111 & 138-172. On direct examination, Appellant provided a slightly different version of
how the seven fresh sets of antlers came to be in the shed: one was his, one was his father’s, two
were the ones he had injured and that Starcher had retrieved, two were roadkill, and the final one
was that of the second renter, Kevin Jenkins. See N.T. 5/31/2018 at 183-84.
3
Following a two-day trial, a jury convicted Appellant of seven counts
of unlawful killing or taking of big game.7 On August 1, 2018, the trial court
sentenced Appellant to an aggregate sentence of 5 days to 8 months of incarceration
followed by 60 days of probation, together with fines and restitution totaling $3,000
and $4,000, respectively. See Trial Court Sentencing Order dated August 1, 2018 at
2-5 (pagination supplied).
Appellant filed a timely Notice of Appeal on August 24, 2018.8 See
Notice of Appeal filed Aug. 24, 2018. On August 30, 2018, the trial court directed
Appellant to file a Pennsylvania Rule of Appellate Procedure 1925(b) concise
statement of errors complained of on appeal within 21 days. See Trial Court Order
dated Aug. 30, 2018 (Rule 1925(b) Order). On September 10, 2018, in response to
Appellant’s Motion for Extension to File a Concise Statement filed the same day,
the trial court extended Appellant’s deadline to file his Rule 1925(b) statement to
October 10, 2018.9 See Trial Court Order dated Sept. 10, 2018 (Rule 1925(b)
7
Despite the jury’s conviction on seven counts of unlawful killing or taking of big game,
the verdict was recorded as six counts because Appellant had one antlered deer tag for 2015,
although Appellant failed to report any deer harvest to the Pennsylvania Game Commission in
2015.
8
Appellant originally filed this appeal in the Superior Court of Pennsylvania. See Notice
of Appeal; Superior Court Docket No. 1221 WDA 2018 at 4. The Superior Court transferred the
matter to this Court on April 29, 2019, pursuant to Section 762(a)(2)(ii) of the Judicial Code, 42
Pa.C.S. § 762(a)(2)(ii), which confers upon this Court appellate jurisdiction over criminal
proceedings for violations of regulatory statutes administered by Commonwealth agencies. See
Dickerson v. Commonwealth, 87 A.2d 379, 381 (Pa. Cmwlth. 1991).
9
In his proposed order for the trial court’s signature, Appellant requested that the trial court
extend the Rule 1925(b) statement filing deadline to “within twenty-one (21) days after the
transcript is filed[.]” See Rule 1925(b) Extension Order. The trial court, however, struck this
suggested temporal language from the order and replaced it with a handwritten notation indicating
the Rule 1925(b) statement was due “30 days from this date[,]” which made the deadline for filing
a Rule 1925(b) Statement October 10, 2018. Id.4
Extension Order); see also Motion for Extension to File a Concise Statement filed
Sept. 10, 2018 (First Extension Request).
On November 1, 2018, after Appellant failed to file a Rule 1925(b)
statement by the October 10, 2018 deadline, the trial court issued an order directing
that the record of the matter be transferred to the appellate court for review without
a Rule 1925(b) statement. See Trial Court Order dated Nov. 1, 2018 (Transmittal
Order). Thereafter, on November 13, 2018, Appellant filed a Rule 1925(b) statement
and his “Motion to Permit Late Filing of Defendant’s Concise Statement of Errors
Complained of On Appeal” with the trial court. See Motion to Permit Late Filing of
Defendant’s Concise Statement of Errors Complained of On Appeal filed Nov. 13,
2018 (Second Extension Request); see also Concise Statement of Errors Complained
of On Appeal filed Nov. 13, 2018. In an order dated November 16, 2018, the trial
court acknowledged these filings only to the extent that it directed the Greene County
Clerk of Courts to forward copies of the filed Rule 1925(b) statement and the
November 16, 2018 order to the appellate court for its consideration. See Trial Court
Order filed Nov. 16, 2018 (Second Transmittal Order).
Appellant raises the following issues for our review:
1. Did the [trial c]ourt permit Deputy Game Warden Bonin
and Deputy Game Warden King to give expert testimony
without these witnesses being qualified as an expert or
being required to provide expert reports to the defense?
2. Did the [trial c]ourt err in treating each set of deer
antlers which [Appellant] transported to [] Starcher’s
residence as a separate criminal offense?
3. Was [Appellant] unduly prejudiced by the prosecution
e-mailing discovery to defense counsel months after it was
due and days before the trial?
5
4. Did the [trial c]ourt err in failing to enter a Motion to
Dismiss all but three [c]ounts of unlawfully possessing or
killing deer at the conclusion of the Commonwealth’s case
in chief? Did the Commonwealth fail to establish a prima
facie case?
5. Did the [trial c]ourt err in not entering a directed verdict
for [Appellant] at the conclusion of all the evidence as the
Commonwealth proved only that [Appellant] killed three
deer and he had a lawful tag for one deer?
6. Did the Commonwealth’s evidence fail to prove that
[Appellant] knew that all seven sets of deer antlers in his
possession were illegally obtained or killed by other
people?
7. Did the Commonwealth fail to provide notes taken by
Deputy Game Warden Lubic which were transcribed at the
time [Appellant] was being questioned by police?
Appellant’s Br. at 3-4.
Before reviewing Appellant’s claims, we must address the
Commonwealth’s suggestion that Appellant has waived his claims by failing to
comply with the trial court’s Rule 1925(b) Order and Rule 1925(b) Extension Order.
See Commonwealth’s Br. at 7.
Generally,
in order to preserve their claims for appellate review,
appellants must comply whenever the trial court orders
them to file a Statement of [Errors] Complained of on
Appeal pursuant to Pa.R.A.P.1925. Any issues not raised
in a Pa.R.A.P.1925(b) statement will be deemed waived.
Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (internal quotation marks,
brackets, and citations omitted). “If the judge entering the order giving rise to the
6
notice of appeal [] desires clarification of the errors complained of on appeal, the
judge may enter an order directing the appellant to file of record in the trial court
and serve on the judge a concise statement of the errors complained of on appeal[.]”
Pa.R.A.P. 1925(b). Further,
[t]he judge shall allow the appellant at least 21 days from
the date of the order’s entry on the docket for the filing and
service of the Statement. Upon application of the
appellant and for good cause shown, the judge may
enlarge the time period initially specified or permit an
amended or supplemental Statement to be filed. . . . In
extraordinary circumstances, the judge may allow for the
filing of a Statement or amended or supplemental
Statement nunc pro tunc.
Pa.R.A.P. 1925(b)(2)(i). Failure by counsel to file a timely Rule 1925(b) statement
constitutes per se ineffectiveness. See Commonwealth v. Burton, 973 A.2d 428, 433
(Pa. Super. 2009).
Additionally, our Supreme Court has expressly determined that
an appellant who seeks an extension of time to file a
Statement must do so by filing a written application with
the trial court, setting out good cause for such extension,
and requesting an order granting the extension. The
failure to file such an application within the 21-day time
limit set forth in Rule 1925(b)(2) will result in waiver of
all issues not raised by that date.
Commonwealth v. Gravely, 970 A.2d 1137, 1145 (Pa. 2009) (emphasis in original).
In the instant matter, it is undisputed that on August 30, 2018, the trial
court ordered Appellant to file a Rule 1925(b) statement within 21 days, warning
that “[a]ny issue not properly included in the statement timely filed and served
7
pursuant to Pa. R.A.P. 1925(b) shall be deemed waived.” Rule 1925(b) Order. The
record also reveals that Appellant requested an extension to file his Rule 1925(b)
statement within the 21 days allotted by the trial court for such filing, which request
the trial court granted, extending the deadline for Appellant to file a Rule 1925(b)
statement to October 10, 2018. See First Extension Request; Rule 1925(b) Extension
Order. No other order appears on the trial court docket or in the original record
indicating either that Appellant requested or the trial court granted a further
extension to file a Rule 1925(b) statement prior to the expiration of the already-
extended October 10, 2018 deadline.
In the Second Extension Request filed November 13, 2018, counsel for
Appellant averred that his secretary failed to put the extended date for filing a Rule
1925(b) statement on his calendar and, as a result, he was unaware of the deadline.
See Second Extension Request at 1-2 (pagination supplied). Counsel explained that
he had prepared a request for an extension of time to file a Rule 1925(b) statement
until after the filing of the trial transcript and thought the motion had been presented
and granted.10 See id. Counsel further explained that he only discovered and
understood his error upon his receipt of the Transmittal Order on November 10,
2018, and that he filed the Second Extension Request shortly thereafter. See id.Upon reviewing the Second Extension Request, the trial court noted that Appellant
had previously failed to file a timely Rule 1925(b) statement, that the matter had
been appealed and the record transmitted, and that, as a result, the trial court lacked
10
In addition to stating that he thought the trial court had granted the First Extension
Request, presumably with the suggested language supplied in the proposed order filed therewith,
see supra note 9, Appellant’s counsel also suggested that the trial court sua sponte extended
Appellant’s deadline to file a Rule 1925(b) statement, which is incorrect. See Second Extension
Request at 1-2.
8
jurisdiction to do anything other than transmit the filings to the appellate court,
which it accordingly did. See Second Transmittal Order at 1-2 (pagination supplied).
Based on these facts, the issues purportedly raised in Appellant’s Rule
1925(b) statement are waived. Appellant failed to timely file his Rule 1925(b)
statement, despite being granted a requested extension. The unambiguous language
of the Rule 1925(b) Extension Order makes unmistakably clear that the trial court
had extended Appellant’s deadline for filing his Rule 1925(b) statement to October
10, 2018, and no further. Neither counsel’s failure to carefully review the
requirements of the Rule 1925(b) Extension Order, nor his secretary’s failure to
properly calendar the extended date represent good cause to enlarge the time period
for Appellant to file his Rule 1925(b) statement or the trial court’s extension thereof.
Appellant needed to make an additional written application to the trial court to
further extend the deadline past October 10, 2018, and he failed to do so. As a result,
Appellant’s issues are waived on appeal. See Gravely; Castillo; Pa. R.A.P. 1925(b).
Ordinarily, waiver of issues on appeal requires an appellant to seek
restoration of his direct appeal rights through the prosecution of an action under the
Post-Conviction Relief Act.11 However, because failure to timely file a Rule 1925(b)
statement pursuant to a trial court’s order represents per se ineffectiveness,12
appellate courts may remand such cases for the filing of a Rule 1925(b) statement
nunc pro tunc and the filing of a Rule 1925(a) opinion by the trial court. See Pa.
R.A.P. 1925(c)(3);13 Commonwealth v. West, 883 A.2d 654, 657 (Pa. Super. 2005)
11
42 Pa.C.S. §§ 9541-9546.
12
See Burton, 973 A.2d at 433.
13
Pennsylvania Rule of Appellate Procedure 1925(c)(3) provides:
9
(“Where counsel has failed to file a substantive Concise Statement, the most
effective means of restoring the defendant’s appellate rights is to remand for counsel
to file a Concise Statement.”); see also Pa. R.A.P. 1925 Comment. Therefore,
because the failure to timely file a Rule 1925(b) statement constitutes per se
ineffectiveness on the part of Appellant’s counsel, we remand the matter to the trial
court to allow the nunc pro tunc filing of a Rule 1925(b) statement by Appellant and
the preparation and filing of an opinion by the trial court thereon. Pa. R.A.P.
1925(c)(3).14
For these reasons, we remand this matter to the trial court to allow
Appellant to file a Rule 1925(b) statement nunc pro tunc, and for the trial court to
issue a Rule 1925(a) opinion thereon.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
If an appellant represented by counsel in a criminal case was ordered
to file a [Rule 1925(b) s]tatement and failed to do so or filed an
untimely [s]tatement, 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 of a [Rule 1925(b) s]tatement nunc pro tunc, and
the preparation and filing of an opinion by the judge.
Pa.R.A.P. 1925(c)(3).
14
We appreciate that Appellant filed a comprehensive Concise Statement of Errors
Complained of On Appeal on November 13, 2018. However, because Rule 1925(c)(3) does not
require that a previously untimely-filed Rule 1925(b) statement need be the statement submitted
to the trial court for nunc pro tunc consideration on remand, we decline simply to direct that the
trial court accept Appellant’s previously filed statement for consideration on appeal. See Pa.
R.A.P. 1925(c)(3).
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania :
:
v. :
:
John M. DeMaske, : No. 770 C.D. 2019
Appellant :
ORDER
AND NOW, this 4th day of January, 2022, the above-referenced
matter is REMANDED to the Court of Common Pleas of Greene County (trial court)
to allow John M. DeMaske (Appellant) to file, nunc pro tunc, a concise statement of
errors complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b), and for the trial court to issue an opinion pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a), as directed.
On remand, Appellant shall file a nunc pro tunc concise statement of
errors complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b) within 10 days of the date of this order, and the trial court shall
issue an opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a), as
directed. Within 60 days of the date of this order, the trial court shall transmit the
record, including Appellant’s Pennsylvania Rule of Appellate Procedure 1925(b)
concise statement of errors complained of on appeal and the trial court’s
Pennsylvania Rule of Appellate Procedure 1925(a) opinion, to this Court.
Jurisdiction retained.
__________________________________
CHRISTINE FIZZANO CANNON, Judge