¶1DISSENTING OPINION BY
¶2¶ 1 I believe that the majority opinion subverts the intent of revised Pa. Rule of Appellate Procedure 1925(b) by allowing the Commonwealth to correct its mistake under a provision designed when defendants are the appellant. In doing so, the majority also disregards the dictate of the Pennsylvania Supreme Court by imposing a “bright line” finding of waiver for failing to meet the time deadlines of Rule 1925(b). See Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005); Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998).
¶3¶ 2 A look at the context of Rule 1925(c)(3), as well as the Note following the rule, shows that it is designed for appellants who are defendants, not the Commonwealth. While by hindsight it is true that the drafters should have been clearer in the language and this section should be revisited, there are often unintended consequences in drafting complex rules and we should not elevate textualism over the clear purpose of a statute or rule.
¶4¶ 3 The section provides:
(c) Remand.—
(3) If an appellant in a criminal case was ordered to file a Statement and failed to do so, such that the appellate court is convinced that counsel has been per se ineffective, the appellate court shall remand for the filing of a Statement nunc pro tunc and for the preparation and filing of an opinion by the judge. [Emphasis supplied.]
¶5¶ 4 The key part of the comment to paragraph (c)(3) of the rule reads as follows:
This paragraph allows an appellate court to remand in criminal cases only when the appellant has completely failed to respond to an order to file a Statement. It is thus narrower than (c)(2), above. Prior to these amendments of this rule, the appeal was quashed if no timely Statement was filed or served; however, because the failure to file and serve a timely Statement is a failure to perfect the appeal, it is presumptively prejudicial and “clear” ineffectiveness. See, e.g., Commonwealth v. Halley, 582 Pa. 164, 172, 870 A.2d 795, 801 (2005); Commonwealth v. West, 883 A.2d 654, 657 (Pa.Super.2005). Direct appeal rights have typically been restored through a post-conviction relief process, but when the ineffectiveness is apparent and per se, the court in Westrecognized that the more effective way to *117resolve such per se ineffectiveness is to remand for the filing of a Statement and opinion. See West, 883 A.2d at 657. The procedure set forth in Westis codified in paragraph (c)(3). As the Westcourt recognized, this rationale does not apply when waiver occurs due to the improper filing of a Statement. In such circumstances, relief may occur only through the post-conviction relief process and only upon demonstration by the appellant that, but for the deficiency of counsel, it was reasonably probable that the appeal would have been successful. An appellant must be able to identify per se ineffectiveness to secure a remand under this section, and any appellant who is able to demonstrate per se ineffectiveness is entitled to a remand. Accordingly, this paragraph does not raise the concerns addressed in Johnson v. Mississippi, 486 U.S. 578, 588-89, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988) (observing that where a rule has not been consistently or regularly applied, it is not — under federal law — an adequate and independent state ground for affirming petitioner’s conviction). [Emphasis added.]
¶6¶ 5 Thus, the only time the appellate court is permitted to remand for a filing of a 1925(b) statement is if “the appellate court is convinced that counsel has been per se ineffective.... ” The only lawyers that can be “per se” ineffective are criminal defense lawyers. “Ineffectiveness of counsel” is a term of art that relates to when a criminal defense lawyer has failed to act properly so that the defendant is deprived of “effective” counsel. It has never been applied to prosecutors.
¶7¶ 6 The reason for the rule is that when a criminal defense lawyer fails to file a Rule 1925(b) statement it is akin to abandonment because, at a Post Conviction Relief Act proceeding the defendant will almost always successfully argue that he was deprived of effective counsel and therefore is entitled to a new appeal after counsel has filed a Rule 1925(b) statement so that all of his issues are not waived.
¶8¶ 7 While it would have been better to specify that the “appellant” is only a “criminal defendant appellant,” since there is no way that a prosecutor can be “per se ineffective” there is no way this section can apply to the Commonwealth.
¶9¶ 8 There is no question that the intent of the drafters was to only apply this rule to criminal defendants, and that is the meaning of the rule adopted by the Pennsylvania Supreme Court.
¶10¶ 9 For this reason, I dissent.