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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
____________________________________________


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:

____________________________________________


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




____________________________________________


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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