When you appeal your criminal conviction, four documents are very important for the Superior Court of Pennsylvania when making their decision:
- Your Brief (Appellant’s Brief)
- The District Attorney’s Brief (Appellee’s Brief)
- The Trial Judge’s Opinion
- Notes of Testimony & Exhibits from Trial
The trial judge’s opinion tells the Superior Court, how the case turned-out in the eyes of the trial judge. Often the Superior Court gives great weight to the trial court opinion, thereby making the opinion a crucial piece of the appeal.
How does the trial court know what you are appealing? Sometimes the court may be able to know the issues for appeal because they presided over the trial. However, that involves guess work. If you write in your brief something other than what the trial court anticipated and the trial court did not write about that topic in its opinion, how would the Superior Court determine the issue without going back through the notes of testimony and reconstructing the case for themselves? They couldn’t and the Superior Court has way too many cases to handle that kind of load.
To ensure a problem like the above scenario doesn’t happen, Pa.R.A.P. 1925(b) allows the trial judge to order the appellant to tell her what issues the appellant will bring up in their brief. When a judge makes this order, the appellant must write a concise list of the issues for appeal and submit them to the trial court. The rule is as follows:
Rule 1925. Opinion in Support of Order.
(b) Direction to file statement of errors complained of on appeal; instructions to the appellant and the trial court.—If the judge entering the order giving rise to the notice of appeal (‘‘judge’’) 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 (‘‘Statement’’).
(1) Filing and service.—Appellant shall file of record the Statement and concurrently shall serve the judge. Filing of record and service on the judge shall be in person or by mail as provided in Pa.R.A.P. 121(a) and shall be complete on mailing if appellant obtains a United States Postal Service Form 3817, Certificate of Mailing, or other similar United States Postal Service form from which the date of deposit can be verified, in compliance with the requirements set forth in Pa.R.A.P. 1112(c). Service on parties shall be concurrent with filing and shall be by any means of service specified under Pa.R.A.P. 121(c).
(2) Time for filing and service.—The 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. Good cause includes, but is not limited to, delay in the production of a transcript necessary to develop the Statement so long as the delay is not attributable to a lack of diligence in ordering or paying for such transcript by the party or counsel on appeal. In extraordinary circumstances, the judge may allow for the filing of a Statement or amended or supplemental Statement nunc pro tunc.
Often an issue comes up regarding how long does the appellant have to write and submit the 1925b statement to the trial court. In my opinion, you should have 21 days from the day the court reporter completes all of the notes from the case, including motions, trial and sentencing. However, some judges do not extend the courtesy once the notes from the trial have been transcribed. In other words, if your motions and sentencing notes aren’t complete, the judge may not give you an extension. This occurs often because the motions and sentencing were not very relevant to the case.
You can write a heading on your 1925b statement saying “Preliminary 1925b Statement” or “First 1925b Statement.” If you later obtain the notes and find a new issue, you can file a second 1925b statement, but run the risk of the trial court and or the Superior Court rejecting the filing as late.