# Commonwealth v. Butler > Supreme Court of Pennsylvania · December 19, 2002 · 571 Pa. 441 URL: https://www.frixlaw.com/law-library/cases/9737239 ## Case - **Full name:** COMMONWEALTH of Pennsylvania, Appellee v. Albert BUTLER, Appellant - **Court:** Supreme Court of Pennsylvania - **Decided:** December 19, 2002 - **Citations:** 571 Pa. 441; 812 A.2d 631; 2002 Pa. LEXIS 2809 - **Precedential status:** Published - **Opinion:** Concurrence by Saylor - **Judges:** Zappala, Cappy, Castille, Nigro, Newman, Saylor, Eakin - **Cited by:** 199 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9737239 ## How later opinions describe it (automated extraction) - stating, “The absence of a trial court opinion poses a substantial impediment to meaningful and effective appellate review. Rule 1925 is intended to aid trial judges in identifying and focusing upon those issues that the parties plan to raise on appeal. Rule 1925 is thus a cru… - finding waiver where appellant attaches Rule 1925(b) statement to his brief and states that he mailed a copy to the presiding judge, but Rule 1925(b) statement does not appear in the certified record, is not evidenced by any docket entry and does not bear the customary “time s… - holding that “Rule 1925 is not satisfied when an appellant merely mails his Rule 1925(b) statement to the presiding judge[; r]ather, Rule 1925(b) requires appellants to ‘file of record in the lower court and serve on the trial judge a concise statement of the matters complaine… - stating “Rule 1925 is not satisfied when an appellant merely mails his Rule 1925(b) statement to the presiding judge[,]” and holding that failure to properly file a concise statement waives any issues that may have been raised - holding appellant’s failure to comply with PCRA court’s order to file Rule 1925(b) statement resulted in automatic waiver of any issues he may have raised on appeal; as issues not preserved for appellate review generally may not be considered by appellate court, Superior Court… ## Opinion text Justice SAYLOR, concurring. I am cognizant of the interests that motivated the Lord Court’s decision — given the constraints arising from the volume of cases managed by the Pennsylvania appellate courts, as well as the concern for uniformity in the administration of claims, the system simply cannot function properly if appellants or their counsel are derelict in their obligation to adequately frame appeals for review. See Commonwealth v. Lord, 558 Pa. 415 , 418-20, 719 A.2d 306, 308-09 (1998). Nevertheless, at least on direct appeal in criminal cases, a majori *452 ty of the Court appears to be willing to ameliorate the effect of Lord’s waiver rule by allowing for assessment of claims of ineffective assistance of counsel for failing to file a Rule 1925 statement. See Commonwealth v. Johnson, 565 Pa. 51, 60 , 771 A.2d 751, 756 (2001) (plurality). 1 The effect of Johnson , however, is to fully resurrect the “double waiver” situation that led to the elimination of the requirement to file post-verdict motions in criminal cases to preserve claims for appeal. 2 As the Lord Court explained, the requirement to identify issues in post-sentence motions had resulted in issues being waived on appeal where they were not so identified, but nevertheless generated subsequent claims of ineffective assistance of counsel. See Lord,- 553 Pa. at 419 , 719 A.2d at 308 -09 (quoting Commonwealth v. Cortes, 442 Pa.Super. 258, 261 , 659 A.2d 573, 574 (1995)). Such multi-faceted process was considered cumbersome and unnecessary. See id. Lord, as applied by the lead in Johnson , nonetheless left intact the same process for challenging counsel’s stewardship subsequent to the waiver, merely displacing the second facet of the double waiver from the post-verdict motion stage to the stage governed by Rule 1925. Whereas Johnson concerned a case on direct appeal, the present case arises at the post-conviction stage. Significantly, however, this Court has held that post-conviction petitioners have a rule-based interest in effective post-conviction counsel analogous to the Sixth Amendment right prevailing at trial and on direct appeal, and that a remedy may be fashioned to vindicate such entitlement. See Commonwealth v. Priovolos, 552 Pa. 364, 368 , 715 A.2d 420, 423 (1998). Indeed, the Court has directed that, in cases in which counsel’s deficient performance in effect denies the post-conviction petitioner the right of appeal guaranteed by Article V, Section 9 of the Pennsylva *453 nia Constitution, the accepted remedy is a remand for appointment of new counsel. See Commonwealth v. Albrecht, 554 Pa. 31, 45-46 , 720 A.2d 693, 700-01 (1998). In accordance with Johnson, Priovolous and Albrecht , it appears to me that there is an avenue in place to vindicate the rights of a post-conviction petitioner whose counsel has failed to file a Rule 1925 statement as directed without justification. In light of Appellant’s failure to implicate or discuss in his one-and-one-quarter page argument this potential avenue for relief or some broader perspective gleaned from experience with Lord, I am simply unable to conclude that the Court should fashion an equitable exception to Lord, or a general exception to the rule pertaining to the post-conviction process, in this case. Respectfully, however, given the limited argument presented, I do not join in the majority’s broader pronouncements. Rather, it appears to me that it may be advisable for the Court to reconsider Lord’s strict waiver rule in an appropriate case in light of the developing experience, including that which is reflected in Johnson and its progeny, particularly as there was some advantage in reposing a degree of discretion in the intermediate appellate courts in instances in which a claim can be reviewed on the record (as, for example, a sufficiency claim). If the Court were to re-implement Rule 1925(b) as written (“failure to comply with such direction [to file a statement of matters complained of on appeal] may be considered ... as a waiver”), Lord could effectively be read as a strong admonition that the failure to raise issues in a Rule 1925 statement may well result in a deemed waiver by an appellate court. . In civil cases, it appears that the client's present recourse, if any, lies with counsel. . By comparison, in the civil context the waiver concern is more pronounced, as, to adequately preserve an issue for review, it must be raised in pre-trial proceedings or by appropriate method at trial, see Pa.R.Civ.P. No. 227.1(b)(1), included in post-trial motions, see id. at (b)(2), and specified in a Rule 1925(b) statement. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9737239. Public record. Not legal advice.