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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
KEVIN EUGENE SMITH
Appellant No. 2265 MDA 2015
Appeal from the PCRA Order November 25, 2015
In the Court of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0001353-2012
CP-54-CR-0001354-2012
BEFORE: GANTMAN, P.J., BOWES, AND PLATT,* JJ.
CONCURRING MEMORANDUM BY BOWES, J.: FILED OCTOBER 20, 2016
My learned colleagues have granted counsel’s petition to withdraw and
affirmed the order denying PCRA relief. I fully agree with their analysis, and
write separately to elaborate on the Commonwealth’s position that this
appeal should be quashed since the notice of appeal was filed pro se.
On November 25, 2015, the PCRA court denied Appellant’s second
PCRA petition as untimely. On December 24, 2015, Appellant lodged a pro
se notice of appeal. Counsel did not file a notice of appeal. Since counsel
was still of record, we ordered him to enter his appearance and file a brief.
The Commonwealth states that this appeal should be quashed, on the
grounds Appellant was represented when he filed the notice of appeal,
rendering the filing a legal nullity. This issue presents a pure question of law
* Retired Senior Judge assigned to the Superior Court.
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and our standard of review is de novo. Commonwealth v. Cooper, 27
A.3d 994, 998 (Pa. 2011).
The applicable Rule of Criminal Procedure states that the notice of
appeal should have been forwarded to counsel:
(A) Filing
(1) All written motions and any written answers, and any notices
or documents for which filing is required, shall be filed with the
clerk of courts.
...
(4) In any case in which a defendant is represented by an
attorney, if the defendant submits for filing a written motion,
notice, or document that has not been signed by the defendant's
attorney, the clerk of courts shall accept it for filing, time stamp
it with the date of receipt and make a docket entry reflecting the
date of receipt, and place the document in the criminal case file.
A copy of the time stamped document shall be forwarded to the
defendant's attorney and the attorney for the Commonwealth
within 10 days of receipt.
Pa.R.Crim.P. 576. The Comment to the Rule states that this requirement
“only serves to provide a record of the filing, and does not trigger any
deadline nor require any response.” Comment, Pa.R.Crim.P. 576.
However, the Commonwealth incorrectly states that this Rule requires
that we deem a pro se notice of appeal filed by a represented defendant a
legal nullity. That interpretation is foreclosed by precedent. In Cooper,
supra, our Supreme Court analyzed a situation wherein a counseled litigant
filed, unbeknownst to his attorney, a pro se notice of appeal (hereinafter
“first appeal”). The document was not forwarded to counsel, and was
instead accepted for filing. As a result, the first appeal proceeded.
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Meanwhile, the attorney filed a timely post-sentence motion, which the trial
court denied, and then a notice of appeal (hereinafter “second appeal”).
Thus, there were parallel appeals at separate dockets.
On June 9, 2008, the second appeal was administratively quashed by
this Court as duplicative of the first appeal. Cooper did not appeal or
otherwise challenge that determination. Then, on May 27, 2009, a panel of
this Court determined that the first appeal was premature and void as a
nullity. Thus, that appeal was also quashed, but we remanded for the trial
court to address the counseled post-sentence motion. Id. at 997.
The Commonwealth appealed, arguing that a party must choose
between filing a notice of appeal or a post-sentence motion, and, once that
choice is made, the party cannot follow both paths. The Commonwealth
insisted that the pro se notice of appeal had initiated appellate proceedings,
and, as a result, the trial court lacked jurisdiction to consider any post-
sentence motion. The Commonwealth acknowledged that its argument
implicated hybrid representation concerns, but argued that a notice of
appeal is not a petition, motion, brief, or any other type of pleading, and
thus Rule 576 did not apply. Cooper, on the other hand, asked the Supreme
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Court to view the pro se notice as a complete nullity, and hold that the
counseled notice of appeal was valid.1
The Cooper Court declined to adopt either interpretation, stating:
“Although both parties make persuasive discrete points, we are not
convinced that the ultimate analysis of either party is correct.” Id. at 1002.
Instead, our High Court held that the pro se document was premature, but
perfected by counsel’s later notice of appeal.
Appellee's pro se notice of appeal was indeed premature, in the
sense that he filed it on his own, while still ostensibly
represented by counsel, and before his appointed counsel had an
opportunity to file a post-sentence motion on his behalf. The
notice of appeal also was ill-advised: the unschooled appellee did
not realize that he had to preserve sentencing claims by filing a
post-sentence motion. Moreover, it was a complicating pro se
filing by a defendant with appointed counsel of record, and
instigated various procedural problems that are endemic to
hybrid representation, and because of which such representation
is not permitted. But the prescribed procedure, designed to
avoid the confusing result of pro se filings by represented
criminal defendants, was not followed.
Under the circumstances of this case, where the trial court ruled
on the appellee's post-sentence motion and thus entered a final
appealable order, we view the pro se appeal as merely
premature, duplicative of the later counseled appeal, and subject
to withdrawal or quashal on those grounds. But, contrary to the
Superior Court panel's determination, it definitely was not a
“nullity,” especially once the counseled appeal was dismissed.
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1
As the Court observed, Cooper’s argument that the second appeal
remained valid was undermined by his argument that our decision to
remand should be affirmed. Moreover, since Cooper failed to appeal the
administrative quashal of the second appeal, its dismissal was considered
final. Id. at 1002, n.11.
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Id. at 1006-07 (citation and footnote omitted). Thus, our Supreme Court
reversed and remanded for this Court to treat the merits of the pro se notice
of appeal, as perfected by counsel’s later post-sentence motions and
corresponding notice of appeal.
Strictly read, Cooper does not resolve the question herein since we
are considering only one notice of appeal, rather than a pro se notice of
appeal followed by a counseled notice of appeal. We cannot similarly label
this instant pro se notice premature since there were no further actions
taken that could be viewed as perfecting the appeal. The question, then, is
whether the pro se notice of appeal can be treated as the actual notice of
appeal, hybrid representation concerns notwithstanding.2
In my view, Cooper indicates that we may view the pro se notice as
procedurally initiating review in that the case explicitly rejected a bright-line
rule that, with respect to a notice of appeal, such documents are nullities.
The Cooper Court also opined:
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2
Published decisions both before and after Cooper have accepted, without
comment, that a pro se notice of appeal is valid. See Commonwealth v.
Robinson, 970 A.2d 455, 457 (Pa.Super. 2009) (en banc) (“On February
21, 2007, following a hearing, the PCRA court denied the [counseled] PCRA
petition. Appellant then filed this timely pro se appeal.”). Commonwealth
v. Wilson, 67 A.3d 736, 738 (Pa. 2013) (“Appellant filed a pro se notice of
appeal; it is not clear why his court-appointed counsel did not file the
notice.”).
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the Rules are not shackles. See, e.g., Pa.R.Crim.P. 101 (criminal
rules are intended to provide for just determination of every
proceeding, and should be construed to secure simplicity,
fairness and elimination of delay); Pa.R.A.P. 104 (“In all cases
not provided for by rule, the appellate courts may regulate their
practice in any manner not inconsistent with these rules.”);
Pa.R.A.P. 105 (rules shall be liberally construed to secure the
just, speedy and inexpensive determination of every matter to
which they are applicable).
Id. at 1003. Applying those principles to these facts, I would hold that
“simplicity, fairness and elimination of delay” militates in favor of treating
this pro se notice of appeal as valid. As to fairness, Appellant’s pro se filing
is definitive proof of his desire to appeal to this Court. Treating the appeal
as valid also removes the prospect of unnecessary delay and expense, since
quashal will likely result in more litigation in the form of a complaint that
counsel did not file a requested appeal, which is ineffectiveness per se. Roe
v. Flores-Ortega, 528 U.S. 470, 477 (2000); Commonwealth v. Lantzy,
736 A.2d 564 (Pa. 1999)
I also note that a notice of appeal does not pose a true hybrid counsel
problem. The policy reasons for the bar against hybrid representation are
that permitting the pro se brief may involve a conflict between
lawyer and client, and this conflict could undermine appellant's
chance of success; that counsel is obligated to submit to the
appellate court only those issues which he believes to possess
merit; that under no other circumstances are counsel and client
permitted to present opposing arguments to Superior Court, as
may well happen if both are permitted to submit briefs; and
finally, that reviewing pro se briefs of counseled appellants
would lead to procedural confusion and delay in the appellate
process because of the need for the court and the
Commonwealth to review and evaluate additional pro se briefs.
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Commonwealth v. Jette, 23 A.3d 1032, 1040 (Pa. 2011) (quoting
Commonwealth v. Ellis, 626 A.2d 1137, 1138–39 (Pa. 1993)). Few, if
any, of these concerns are present when a litigant files a pro se notice of
appeal. A notice of appeal requires no substantive review, and counsel
herein did not file any type of reconsideration or other filing prior to the
expiration of the thirty-day appeal period. As the High Court stated in
Flores-Ortega, supra, filing the notice is a ministerial task and the failure
to file a requested appeal cannot be considered a strategic decision. To the
extent a notice of appeal interferes with counsel’s plans to file any later
motion while the trial court retains jurisdiction, Cooper’s “perfecting the
appeal” framework addresses those concerns.
For the foregoing reasons I would deem the pro se notice of appeal
valid on those grounds.3
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3
None of this should be read to approve the failure to forward the document
to counsel, or as a suggestion that a clerk of courts should not forward the
notice of appeal to counsel. The Rules should, of course, be followed.
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