Commonwealth v. Cooper

Justice TODD,

dissenting.

The majority has offered a cogent approach for untangling the procedural quagmire before us. Were I able to accept the majority’s premise that Appellee’s pro se appeal was “merely premature,” Majority Opinion at 457, 27 A.3d at 1007, I would have little quarrel with its resultant analysis. However, I cannot accept this premise. Rather, in my view, our caselaw and procedural rules support a conclusion that Appellee’s pro se appeal was a legal nullity, and I find such a determination *461most in accord with our established prohibition on hybrid representation. Accordingly, for the following reasons, I respectfully dissent.

The majority concludes that Appellee’s pro se appeal, filed while he was represented by counsel, was “merely premature,” noting that, while it was “duplicative of the later counseled appeal, and subject to withdrawal or quashal on those grounds,” it “definitely was not a ‘nullity’.” Majority Opinion at 457, 27 A.3d at 1007. The majority reasons that “[t]he proper way to view the pro se appeal, after the counseled appeal was dismissed, is as a premature appeal that was perfected upon the trial court’s proper consideration and denial of the counseled post-sentence motions.” Id. at 457-58, 27 A.3d at 1007. Respectfully, in my view, this conclusion is contradicted by our caselaw and rules.

Grounded in our prohibition against hybrid representation, this Court has approved lower courts’ refusals to review pro se pleadings and briefs filed by counseled criminal litigants. See Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137 (1993) (approving Superior Court’s refusal to consider counseled litigant’s pro se brief); Commonwealth v. Pursell, 555 Pa. 233, 724 A.2d 293 (1999) (approving post-conviction court’s refusal to consider issues raised in counseled appellant’s pro se petition). Recently, in Commonwealth v. Jette, 611 Pa. 166, 23 A.3d 1032 (2011), we reaffirmed Pursell and Ellis, and “reiterate[d] that the proper response to any pro se pleading is to refer the pleading to counsel, and to take no further action on the pro se pleading unless counsel forwards a motion.” Id. at 1044 (rejecting Superior Court’s procedure requiring post-conviction appellate counsel to seek remand to address pro se claims of counsel’s ineffectiveness).

Critically, based on that same prohibition against hybrid representation, this Court and the Superior Court have deemed pro se filings of counseled criminal litigants to be of “no legal effect” and “nullities.” See Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282, 293 (2010) (characterizing as a “legal nullity” appellant’s pro se Pa.R.A.P. 1925(b) statement and, thus, rejecting argument that the statement preserved any issues on appeal, citing Ellis); Commonwealth v. Piscanio, 530 Pa. 293, 298 n. 3, 608 A.2d 1027, 1029 n. 3 (1992) *462(characterizing as a nullity counseled appellant’s pro se appeal from order denying bail); Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa.Super.2007) (rejecting as “a nullity, having no legal effect” counseled appellant’s pro se post-sentence motion, citing Ellis and Piscanio); Commonwealth v. Hall, 327 Pa.Super. 390, 476 A.2d 7, 9-10 (1984) (rejecting pro se appeal of order denying writ of habeas corpus by counseled appellant). Indeed, of particular import for the instance case, in Piscanio, supra, this Court rejected a counseled appellee’s pro se appeal from an order denying bail. As an alternate basis for affirming the trial court’s continued jurisdiction, we reasoned that,- “[bjecause Appellee’s pro se actions have no legal effect while defense counsel remains authorized to represent him in all aspects of the proceedings, Appellee’s pro se appeal from the order denying bail was a nullity which would not prevent the trial court from instituting trial.”1 Piscanio, 530 Pa. at 298 n. 3, 608 A.2d at 1029 n. 3; see also Hall, 476 A.2d at 9-10 (“An accused’s pro se [appeal has] no legal effect while defense counsel remains authorized to represent the accused in all aspects of the proceedings.”); Standard Pennsylvania Practice § 132:109 (same). Herein, the majority’s approach — which lends conditional legal significance to Appellee’s pro se notice of appeal — fails to fully account for this precedent and, in particular, conflicts "with Piscanio.2

*463In addition, while I agree with the majority that Pa. R.Crim.P. Rule 576(A)(4) applies to the pro se notice of appeal herein, see Majority Opinion at 457 n. 17, 27 A.3d at 1006 n. 17, the commentary to that Rule suggests such pro se filings have no legal import. While Rule 576 states that the clerk “shall accept [a pro se notice] 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,” Pa.R.Crim.P. Rule 576(A)(4), the commentary emphasizes that the filing is docketed as purely an evidentiary matter: “The requirement that the clerk time stamp and make docket entries of the filings in these cases only serves to provide a record of the filing, and does not trigger any deadline nor require any response.” Id. cmt. This commentary suggests to me that pro se filings made by counseled litigants are to have little or no legal significance.3,4

Instead of hewing to this authority, the majority devises a new type of appeal not expressly contemplated by our rules, one which is not interlocutory, but yet one which does not trigger Pa.R.A.P. 1701’s jurisdictional mandates.5 See Pa. R.A.P. 1701(a) (“Except as otherwise prescribed by these rules, after an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may *464no longer proceed further in the matter.”). Here, the pro se notice of appeal was not interlocutory, as it was undoubtedly an appeal from a final order — the judgment of sentence. Thus, under Pa.R.A.P. 1701, that appeal, if given any legal effect, would have stripped the trial court of jurisdiction, and thereby preventing the trial court from entertaining the post-sentence motion later filed by the Appellee’s counsel. Indeed, had counsel filed the first notice of appeal, there would presumably be no question about this. While a counseled appeal, filed prior to a post-sentence motion, certainly would have handicapped any sentencing-based issues on appeal, see Commonwealth v. Reeves, 778 A.2d 691, 692 (Pa.Super.2001) (failure to file post-sentence motion waived appellate challenge to discretionary aspect of a sentence), it would not have been interlocutory.

However, while this pro se appeal was not interlocutory, the majority does not allow for the operation of Pa.R.A.P. 1701, which strips the trial court of jurisdiction where an appeal is filed, instead finding the appeal to be “merely premature.” The majority, by this new construct, thus approves the trial court’s jurisdiction in addressing the post-sentence motions filed by counsel. In this regard, I do not find the majority’s analogy to our treatment of other premature appeals to be persuasive. See Majority Opinion at 458-59, 27 A.3d at 1007-OS (citing, inter alia, K.H. v. J.R., 573 Pa. 481, 826 A.2d 863 (2003)). In K.H., this Court allowed the fiction that an otherwise interlocutory appeal, one filed before the entry of a final order (the civil judgment) would be viewed as having been filed after the entry of final judgment, thus maturing the appeal once judgment was entered. See also Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the day thereof.” (emphasis added)). In cases of interlocutory appeals, Pa.R.A.P. 1701(b)(6) specifically authorizes the trial court’s continuing jurisdiction. Thus, the court is jurisdiction-ally authorized to enter judgment, and there is no impediment to deeming its act of entering judgment as the trigger for maturing the interlocutory appeal — that is, throughout the *465process, the trial court’s jurisdiction is secure. The same is not true under the majority’s approach: our appellate rules presently do not contemplate treating the instant pro se appeal, taken from a final order, as “premature,” or somehow ineffective.

Further, unlike in K.H., the majority’s approach herein is not a regular, predictable one, but rather is based on multiple contingencies: in K.H., jurisdiction was settled upon the entry of judgment; here, it seems the pro se appeal has jurisdictional effect only if a counseled appeal is also later filed and that appeal is subsequently dismissed. See Majority Opinion at 457-58, 27 A.3d at 1007 (The pro se appeal “definitely was not a ‘nullity’, especially once the counseled appeal was dismissed. The proper way to view the pro se appeal, after the counseled appeal was dismissed, is as a premature appeal that was perfected upon the trial court’s proper consideration and denial of the counseled post-sentence motions.”). In my view, this is an awkward approach to matters affecting jurisdiction.

Finally, despite our prohibition on hybrid representation, by lending conditional legal significance to a pro se notice of appeal, the majority, in my view, encourages such filings. Indeed, despite representation by counsel, why would a criminal defendant not file a pro se appeal in the hope that a court would later deem it worthwhile? The majority burdens lower courts and parties to scrutinize such filings for after-the-fact significance. This is the type of confusion our rules prohibiting hybrid representation are intended to prevent. See Jette, 23 A.3d at 1038 (“The only thing [the counseled criminal litigant] may not do is confuse and overburden the court by his own pro se filings at the same time his counsel is filing briefs on his behalf.” (quoting Ellis, supra )).6

I recognize the myriad irregularities present in this case— chief among them, in my view, the prothonotary’s failure to *466forward the pro se notice of appeal to counsel of record in contravention of Pa.R.Crim.P. 576. See Majority Opinion at 450-51, 27 A.3d at 1002. And I respect the majority’s attempt to give Appellee the benefit of his pro se filing under the odd circumstances of this case. Nevertheless, I conclude its approach does not comport with our precedent or rules, undermines our prohibition on hybrid representation, and as a guideline to the bench and bar does more mischief than good. Rather, I would enforce our prohibition against hybrid representation by treating Appellee’s pro se appeal as a legal nullity, with no effect on the proceedings below. I conclude that approach, better than the one fashioned by the majority, best avoids “the confusing result of pro se filings by represented criminal defendants.” Majority Opinion at 457, 27 A.3d at 1007.7

Accordingly, in the instant case, I would conclude Appellee’s pro se appeal at 1055 EDA 2008 was a nullity;8 thus, the only extant appeal was the one subsequently filed by counsel at 1230 EDA 2008, which was administratively dismissed by the Superior Court as “duplicative.”9 Therefore, in the Superior *467Court’s review of the pro se appeal at 1055 EDA 2008, there was no jurisdictional foundation for the court to implement its remand procedure under Commonwealth v. Mincavage, 945 A.2d 233 (Pa.Super.2008). On that basis, I would vacate the order of the Superior Court.

Appellee would not be without an avenue for appellate relief, however. Were Appellee hereafter to seek leave to file an appeal nunc pro tunc in the trial court (from the order rejecting the post-sentence motions filed by counsel), in my view, under the extraordinary circumstances of this case, where there were procedural errors on the part of the clerk of courts, the trial court, and the Superior Court which thwarted counsel’s ability to respond to Appellee’s pro se filing, it would be a proper exercise of discretion to grant such leave.10 See Commonwealth v. Stock, 545 Pa. 13, 18-19, 679 A.2d 760, 763-64 (1996) (discussing that “an appeal nunc pro tunc is intended as a remedy to vindicate the right to an appeal where that right has been lost due to certain extraordinary circumstances” such as a breakdown in the court’s operations).

For these reasons, I respectfully dissent.

Justice BAER joins this dissenting opinion.

. In observing that this reasoning was somehow not part of our holding in Piscanio, see Majority Opinion at 458 n. 19, 27 A.3d at 1007 n. 19, the majority overlooks our explicit statement to the contrary: “This claim [by the Commonwealth that Appellant was still represented by counsel] presents an alternative basis on which to find that the trial court properly proceeded with Appellee's trials.’’ Piscanio, 530 Pa. at 298 n. 3, 608 A.2d at 1029 n. 3 (emphasis added). Further, as I discuss below, I am unpersuaded by the majority’s attempt to diminish the import of this case because of the ease with which the fact of hybrid representation was discernible. See infra note 6.

. I recognize that Piscanio and Hall were decided when Pa.R.Crim.P. Rule 576 required pro se filings not be docketed, but merely forwarded to record counsel, and now the Rule provides that such filings should be docketed. Compare Pa.R.Crim.P. 576(C) (2003) with Pa.R.Crim.P. 576(A)(4). As discussed infra, however, commentary to the amended Rule emphasizes the purely evidentiary nature of the docketing requirement.

. Although Rule 576 does not specify, I presume the pro se filing is recorded so that it may, for example, be considered in determining a litigant's entitlement to nunc pro tunc relief, as such a filing would be relevant in assessing a claim that the defendant intended for counsel to file an appeal.

. The majority contends that the prothonotary’s failure in the instant case to follow this rule by forwarding the notice of appeal on to counsel undermines this conclusion. See Majority Opinion at 456 n. 15, 27 A.3d at 1006 n. 15. I disagree. While the rule was not followed herein, and while this failure would factor into a grant of nunc pro tunc relief as I discuss below, a failure to adhere to a rule in any given case cannot drive this Court’s overall interpretation of our procedural rules.

. The majority rightly notes that, if one party — be it the Commonwealth or the defendant — files a notice of appeal and then a timely post-sentence motion is filed by the other party, Rule 720 and 721 of our criminal rules render the notice of appeal premature. See Majority Opinion at 451-53, 27 A.3d at 1003-04; Pa.R.Crim.P. 720 & 721. As the majority further emphasizes, however, this feature of Rule 720 and 721 has no application herein.

. As a distinguishing point, the majority emphasizes that in this case, see Majority Opinion at 456 n. 16, 27 A.3d at 1006 n. 16, and in Piscanio and Ali, see Majority Opinion at 458 n. 19, 27 A.3d at 1007 n. 19, the hybrid nature of the defendants’ representation was easily determinable, implying that such is not normally the case. In this regard, however, it is unclear to me what more is required of a court’s prothonotary, in reviewing a pro se filing, than to review the relevant court dockets — specifically, for counsel’s entry of appearance or appointment, and to see whether any motion to withdraw has been *466granted. While, as the majority notes, a criminal defendant has the right to self-representation, such a right is not self-executing, requires court approval, and would be readily discernible on the relevant docket. Indeed, in the case of appointed counsel, our criminal rules require counsel, unless leave to withdraw is granted, to retain his appointment up to and through any appeal to this Court. See Pa.R.Crim.P. 122(B)(2) & cmt. Admittedly, for retained counsel, our rules are arguably ambiguous (and worth clarifying) in this regard. Compare Pa.R.Crim.P. 120(A)(4) (counsel must "continue such representation through .direct appeal or until granted leave to withdraw”) with Pa.R.Crim.P. 120(B)(1) (counsel "may not withdraw his or her appearance except by leave of court”). Regardless, I am unpersuaded by the majority's implication that determining whether a defendant is represented at any given time is an involved matter. Indeed, of particular relevance for this case, a notice of appeal is filed in the trial court, not the appellate court, Pa.R.A.P. 905(a)(1); thus, in this case, the review I am suggesting implicates only one court docket.

. I would further refer this matter to the appropriate rules committees for implementation of this approach.

. As I would conclude this appeal was a nullity, the trial court properly addressed the post-sentence motions subsequently filed by counsel.

. As the majority notes, Appellee could have, but did not, appeal this dismissal.

. The majority misapprehends my position in this regard. See Majority Opinion at 457 n. 18, 27 A.3d at 1007 n. 18. I proffer nunc pro tunc relief as a prospective possibility for resurrection of Appellee's appellate rights, which he would have available were this Court to simply vacate the Superior Court's order as I propose.