Superior Court 6/30/08 - COMMONWEALTH OF PENNSYLVANIA v. THOMAS BROWN

COMMONWEALTH OF PENNSYLVANIA v. THOMAS BROWN
No. 967 EDA 2007 2008 PA Super 138 Atlantic: n/a Filed: 6/30/2008
Appeal from the Order entered March 14, 2007 In the Court of Common Pleas of Philadelphia County, Criminal, No. 0607-0973 1/1
Before: STEVENS, KLEIN and POPOVICH, JJ.
Opinion by: KLEIN, J.
The Commonwealth appeals from the order of the respected trial judge, the Honorable Harold M. Kane, granting a motion to suppress evidence. We affirm.

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It is not disputed that issues not in the 1925(b) statement are waived,
see Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998); however, the
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Commonwealth states that this general rule does not apply where they filed a
statement on their own without a request by the Court. This is incorrect. We
held, in Commonwealth v. Nobles, 941 A.2d 50 (Pa. Super. 2008), that once
a party files a Rule 1925(b) statement the need for the court to request one is
moot.
To sustain the Commonwealth's objection would encourage “sand
bagging” by counsel if they are allowed to quickly file a Rule
1925(b) statement and then claim that nothing is waived because
the Rule 1925(b) statement was not in response to a formal
request. In Commonwealth v. Snyder, 870 A.2d 336 (Pa. Super.
2005) this Court explained:
It is of no moment that appellant was not ordered to
file a 1925(b) statement. Appellant filed his statement
contemporaneously with his notice of appeal.
Accordingly, there was no need for the trial court to
order him to file a 1925(b) statement. If we were to
find that because he was not ordered to file a 1925(b)
statement, he has not waived the issues he neglected
to raise in it, we would, in effect, be allowing appellant
to circumvent the requirements of the Rule. In so
holding, we are also mindful of the purpose of Rule
1925.
Id. at 52.
¶ 7 The Commonwealth also claims that the recently amended Rule 1925(b)
applies, which contains the language that subsidiary issues are contained,
allows them to present this issue on appeal.2 The appeal in this case was filed
on April 11, 2007, and the Commonwealth’s filed a Rule 1925(b) statement on
the same date, without an order to do so. The new 1925(b) rule did not go
2 See Pa.R.A.P. Rule 1925(b)(4)(v).
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into effect until July 25, 2007. In this case, as both the appeal and the
1925(b) statement were filed while the old rule was in effect, the old rule
applies.3 “[A] statute is not regarded as operating retroactively because of the
mere fact that it relates to antecedent events, or draws upon antecedent facts
for its operation.” Bethea v. Philadelphia AFL-CIO Hosp. Ass'n, 871 A.2d
223, 226 (Pa. Super. 2005).

The issue then becomes whether someone who has not been proven to
be reliable says that someone is going to drive a car to a certain intersection
within a two-hour window of time is, with nothing else, enough to create
reasonable suspicion. The trial judge found it was not, and we agree.....