Com. v. Alsop

• Decision Date: 14 May 2002
• Citation: 799 A.2d 129,2002 Pa. Super. 146
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Philip ALSOP, Appellant.
• Court: Pennsylvania Superior Court

799 A.2d 129

2002 Pa. Super. 146

COMMONWEALTH of Pennsylvania, Appellee, v. Philip ALSOP, Appellant.

Superior Court of Pennsylvania.

Argued November 29, 2001.

Filed May 14, 2002.

Andrew G. Gay, Pittsburgh, for appellant.

Mary M. Killinger, Asst. Dist. Atty., Norristown, for Com., appellee.

Before DEL SOLE, P.J., CAVANAUGH, JOHNSON, HUDOCK, JOYCE, STEVENS, MUSMANNO, ORIE MELVIN and LALLY-GREEN, JJ.

JOYCE, J.

¶ 1 This is an appeal filed by Philip Alsop¹ (Appellant) from the judgment of sentence entered by the Court of Common Pleas of Montgomery County. This followed Appellant's conviction and sentencing for various crimes including aggravated assault (pursuant to the Crimes Code),² and aggravated assault by vehicle while driving under the influence (pursuant to the Motor Vehicle Code).³ For the reasons set forth herein, we affirm the judgment of sentence.

¶ 2 The pertinent facts and procedural history of this case as set forth by the trial court are as follows:

On May 17, 2000, following a two day bench trial, this court found the Appellant, Philip John Alsop, guilty of aggravated assault, aggravated assault by vehicle while driving under the influence of alcohol, and related offenses. The Appellant was sentenced on July 10, 2000. [Appellant was sentenced to 4 1/2 to 20 years' imprisonment for the aggravated assault conviction, pursuant to the Crimes Code. The court did not impose further penalty for the latter conviction (aggravated assault by vehicle while driving under the influence, pursuant to the Motor vehicle Code), having determined that it merged with the former, for sentencing purposes.] Appellant's conviction stems from an incident that occurred on March 10, 1999.

On March 10, 1999, the Appellant, during his work hours, consumed [several] ounces of vodka. Subsequently, the Appellant began having difficulty fulfilling his employment responsibilities, and was witnessed breaking glasses. Later that afternoon, on his commute home, the Appellant's vehicle missed the turn [at] an intersection, nearly striking another vehicle. His vehicle jumped the curb, and struck a guardrail and a stop sign. After being approached by the other driver, the Appellant pulled his automobile from the wreckage and continued on his way. During that time, the Appellant was involved in a second collision. The second collision involved a pedestrian, Mr. Thor McRoberts who was hit from behind by the Appellant's automobile. Mr. McRoberts' head hit the windshield of the Appellant's automobile. He was thrown into the air, and was rendered quadriplegic. The Appellant began to leave the scene of this collision. He then returned within minutes when he heard the police sirens. The Appellant was arrested, and transported to North Penn [H]ospital where his blood alcohol level was determined as a .268. The Appellant was then released to the custody of his wife, and returned to his residence in North Wales.

Later that evening, a domestic dispute report was made regarding the Appellant at his residence. The police responded, and while interviewing the Appellant's wife and daughter, the Appellant came back to the scene. The police attempted to interview the Appellant, whereupon he tried to leave the residence. During that exchange with police, the Appellant lunged for an officer's firearm, while telling the officers they should shoot him or he would kill them if he gained control of their firearms. Two officers finally restrained the Appellant using pepper spray.

Subsequent to his conviction [and sentence] for the above offenses, the Appellant filed a motion to modify his sentence. However, on August 11, 2000 this court upon consideration of said motion, and after argument, denied the motion. The Appellant then filed this appeal.

Trial Court Opinion, 10/11/2000, at 1-2.

¶ 3 The record shows that following Appellant's appeal, in an order issued on August 25, 2000 (docketed on August 28, 2000), the trial court directed Appellant to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b), within ten days.⁴ Docket Entry # 53. Appellant did not file the 1925(b) statement until October 16, 2000. On October 11, 2000, the trial court issued an opinion pursuant to Pa.R.A.P.1925(a). Docket Entry # 56. In that opinion, the court addressed the issue of whether Appellant was improperly sentenced under the incorrect statute, i.e., whether Appellant should have been sentenced for aggravated assault by vehicle while driving under the influence, 75 Pa.C.S.A. § 3735.1 as opposed to aggravated assault, pursuant to 18 Pa.C.S.A. § 2702(a)(1). Ultimately, the trial court found this issue to be without merit. See Trial Court Opinion, 10/11/2000.

¶ 4 The certified record also reflects that Appellant filed a 1925(b) statement, which was docketed on October 16, 2000, five days after the trial court issued its 1925(a) opinion. Docket Entry # 57. However, in his application for panel reconsideration, Appellant alleged that he sent his Rule 1925(b) statement to the trial court's clerk of courts on September 7, 2000.⁵ In support of this contention, Appellant attached a transmittal letter, dated September 7, 2000, which supposedly accompanied the 1925(b) statement filed with the clerk of courts. Appellant maintains that the trial court received his 1925(b) statement before it drafted the October 11, 2000 Rule 1925(a) opinion, despite the fact that the 1925(b) statement was inexplicably entered on the docket on October 16, 2000.

¶ 5 The issues involved in this appeal are as follows:

[1.] WAS THE EVIDENCE INSUFFICIENT TO SUPPORT THE APPELLANT'S CONVICTION FOR AGGRAVATED ASSAULT INSOFAR AS THE EVIDENCE FAILED TO ESTABLISH THAT THE APPELLANT ACTED WITH THE NECESSARY MENS REA TO SUSTAIN THAT CRIME?

[2.] DID THE LOWER COURT ERR IN CONVICTING AND SENTENCING THE APPELLANT WITH RESPECT TO THE CRIME OF AGGRAVATED ASSAULT AS FELONY OF THE FIRST DEGREE INSOFAR AS THE LEGISLATURE ENACTED A SPECIFIC CRIME THAT GOVERNS THE FACTS UNDERLYING THAT CRIME?

Brief for Appellant, at 4.

¶ 6 Initially, we must consider whether the issues raised in this appeal must be deemed waived because of Appellant's failure to timely file a 1925(b) statement, and/or failure to raise them in the belated 1925(b) statement.⁶ In Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306, 309 (1998), the Pennsylvania Supreme Court declared that "from this date [October 28, 1998] forward, in order to preserve their claims for appellate review, Appellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Rule 1925. Any issues not raised in a 1925(b) statement will be deemed waived."

¶ 7 The record in this case shows that Appellant's first issue, dealing with the sufficiency of the evidence, was not raised in Appellant's belated 1925(b) statement and was not addressed by the trial court, in its 1925(a) opinion. Therefore, this issue must be deemed waived pursuant to Lord and its progeny. Similarly, the first part of the second issue, alleging that the trial court erred in convicting Appellant of aggravated assault pursuant to the Crimes Code, was not raised in the belated 1925(b) statement. Thus, this issue is waived. Although the trial court's 1925(a) opinion addressed the sentencing issue as well as the conviction issue, this does not save the issue of conviction for purposes of appellate review. The trial court's gratuitous discussion of the issue of conviction cannot serve to preserve this issue which was never raised in Appellant's belated 1925(b) statement. To deem an issue preserved because of a trial court's unsolicited discussion of the issue not raised in the 1925(b) statement would run counter to the clear and unambiguous language of Lord: that "any issues not raised in a 1925(b) statement will be deemed waived." Lord, 719 A.2d at 309. Also, in the case at hand, the trial court's discussion of an issue that was not raised in the 1925(b) statement was necessarily the result of anticipation, prediction, or guesswork. Even a correct anticipation or prediction in the trial court's 1925(a) opinion of the issue which would have been raised by an appellant, does not serve to preserve that issue for appellate review. See Commonwealth v. Steadley, 748 A.2d 707, 709 (Pa.Super.2000) (finding that the appellant waived her claim because she neglected to file a Rule 1925(b) statement even though the trial court, in anticipation of what issue the appellant might raise, addressed a suppression issue). Along the same lines, other decisions of this Court have emphasized that "when a [trial] court has to guess what issues an appellant is appealing, that is not enough for meaningful review." Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa.Super.2001); Commonwealth v. Butler, 756 A.2d 55, 57 (Pa.Super.2000). The Butler Court explained the rationale behind the above principle and also pointed out the following inherent dangers in permitting appellate review of issues not raised in a 1925(b) statement but where the trial court guesses and addresses the issues in a 1925(a) opinion:

[T]he [lower] court would be determining what issues the appellant could appeal, and we cannot conduct meaningful review where the [lower] court defines the appellant's issues. We can only conduct meaningful review where the appellant writes a Rule 1925(b) statement and the court below, be that a trial court or a PCRA court, responds to those issues in its opinion. Moreover, it is contrary to our system of justice to allow the court rather than the appellant to frame the issues. Indeed, this would severely limit the types and nuances of arguments that an appellant could raise on appeal. While it may appear to punish appellant in this particular case, it will also allow future appellants to frame their own issues. Further, it again serves as notice to appellants: when a trial court or a PCRA court orders a Rule 1925(b) statement, the appellant

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