Com. v. Cole, J. ( 2017 )

J-S08017-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES CHARLES COLE
Appellant No. 615 WDA 2016
Appeal from the Judgment of Sentence March 24, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0015767-2012
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J.
CONCURRING STATEMENT BY GANTMAN, P.J.: FILED MAY 26, 2017
While I agree Appellant’s discretionary aspects of sentencing issue is
waived for purposes of our review, I do so based on other grounds; I
respectfully disagree with the majority’s conclusion that Appellant waived or
abandoned his request for reinstatement of his post-sentence motion rights
nunc pro tunc in his response to the court’s Rule 907 notice. In my view,
Appellant consistently requested reinstatement of his post-sentence motion
rights nunc pro tunc throughout the PCRA proceedings.
Nevertheless, “the failure to raise an issue in an ordered Rule 1925(b)
statement results in waiver of that issue on appeal.” Commonwealth v.
Poncala, 915 A.2d 97, 100 (Pa.Super. 2006), appeal denied, 594 Pa. 678,
932 A.2d 1287 (2007). Additionally, “[t]he failure to develop an adequate
argument in an appellate brief may result in waiver of the claim.”
J-S08017-17
Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa.Super. 2007),
appeal denied, 603 Pa. 679, 982 A.2d 509 (2007). Here, Appellant did not
challenge the PCRA court’s failure to reinstate his post-sentence motion
rights nunc pro tunc in either his court-ordered Rule 1925(b) statement or
his appellate brief. Thus, I agree Appellant waived any challenge to the
PCRA court’s failure to reinstate Appellant’s post-sentence motion rights
nunc pro tunc, but I do so based on the limited grounds of Rule 1925(b) and
Beshore, supra. Accordingly, I concur in the result.
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