J-S07020-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    FRANK CAPLE                                :
                                               :
                       Appellant               :       No. 348 EDA 2019

            Appeal from the PCRA Order Entered December 24, 2018
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0002451-2013


BEFORE:       NICHOLS, J., KING, J., and STRASSBURGER, J.*

MEMORANDUM BY KING, J.:                             Filed: April 15, 2020

        Appellant, Frank Caple, appeals from the order entered in the

Montgomery County Court of Common Pleas, which granted Appellant’s pro

se “motion requesting a final order for the [Post Conviction Relief Act

(“PCRA”)1] issue that was ignored.” We vacate and remand with instructions.

        In its opinion, the PCRA court set forth the relevant facts of this appeal

as follows:

           The events leading to these charges began on February 16,
           2013, at approximately 7:00 a.m.         That day, Officer
           Jonathan Gallagher, was dispatched to America’s Best Value
           Inn (hereinafter “the Inn”) located in Pottstown,
           Montgomery County for a report of a domestic assault.
           Upon arriving at the Inn, Officer Gallagher joined two other
           officers and spoke with Yolanda Smith and Anthony King,
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S.A. §§ 9541-9546.
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       who were occupying room 115. From this conversation,
       Officer Gallagher learned that an assault had just occurred.
       Neither Smith nor King was involved in the assault and they
       directed Officer Gallagher to room 210 of the Inn. However,
       the manager at the Inn indicated that room 210 was vacant.
       Since the victim was not located yet, Officer Gallagher asked
       the manager to open the door to room 210 nevertheless. It
       was apparent that room 210 was in fact vacant, but shortly
       thereafter, Officer Gallagher heard a radio transmission that
       the victim could possibly be located in room 215.

       Officer Gallagher proceeded to room 215 and although the
       curtains were drawn, they were open enough that he could
       see there was a light on. He began to knock very loudly and
       announced “police” in his attempt to locate the victim. After
       doing this several times, to no avail, Officer Gallagher asked
       the manager to open the door. He then located a female,
       Gail Benedetto, in the bathroom. Ms. Benedetto was not
       the assault victim, however while he was in room 215,
       Officer Gallagher heard through transmission that the victim
       had been located.

       Officer Gallagher noticed there were two metal crack pipes
       on top of a dresser in room 215. At that point, Ms.
       Benedetto was taken from the room in order to secure it
       while a search warrant was applied for. Found during the
       execution of the search warrant were: two cell phones
       located on the sink in room 215; a stack of business cards
       that said “Flip Entertainment,” along with a telephone
       number printed on the cards; the two metal crack pipes
       mentioned earlier; a Western Union receipt indicating
       [Appellant] sent $100 to Amber Fuller; a ceramic plate,
       razor blade, piece of a straw, blue pill bottle, small black
       glassine packaging baggies, and a bag of marijuana, all
       found in the desk drawer; a blue backpack containing men’s
       clothing and two dirty socks with large chunks of a white
       substance inside; a black and orange backpack containing a
       pack of Newport cigarettes surrounded by unused pink and
       red Ziploc baggies; a red jacket with several small baggies
       that contained a white substance found inside; and a pair of
       men’s Dickie pants with “Flip Company Home Remodeling”
       business cards sticking out of them. Testing done on several
       of the items seized and submitted to National Medical


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         Services Laboratory provided a positive result for Cocaine,
         Oxycodone, and Marijuana.

         While the search of room 215 was occurring, the victim of
         the assault, Cicely McCarty, was taken to the police station.
         Officer Gallagher met her at the station and noticed her face
         was swollen, she had a cut on her lip, and she was upset.
         It was discovered that Ms. McCarty was doing drugs in room
         115 and ended up sleeping there on the floor. The next
         morning, February 16, 2013, [Appellant] called room 115
         and told Ms. McCarty to leave. About two minutes later,
         [Appellant] came downstairs to room 115 and engaged in a
         verbal and physical fight with Ms. McCarty. As she left, Ms.
         McCarty called the cops. This call was what initially led
         Officer Gallagher to the Inn and resulted in the charges filed
         against the [Appellant].

(PCRA Court Opinion, filed June 25, 2019, at 1-3) (internal citations omitted).

      At trial, a jury convicted Appellant of three counts of possession of a

controlled substance, two counts of possession of a controlled substance with

intent to deliver, and one count each of possession of drug paraphernalia and

simple assault.   On June 4, 2014, the court sentenced Appellant to an

aggregate term of five (5) to twenty (20) years’ imprisonment. The sentence

included certain mandatory minimum terms based upon the weight of the

drugs at issue. The court also issued an “alternative sentence,” in the event

that future appellate court decisions might render the applicable mandatory

minimum statutes unconstitutional.

      On appeal, this Court vacated the judgment of sentence and remanded

for resentencing. See Commonwealth v. Caple, 121 A.3d 511 (Pa.Super.

2015). Specifically, this Court granted relief on Appellant’s sentencing claims,

but it denied relief on Appellant’s suppression of evidence issue.        Upon

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remand, the court resentenced Appellant to an aggregate term of four (4) to

twenty (20) years’ imprisonment. Appellant timely filed a notice of appeal,

but he subsequently filed a praecipe for discontinuance on July 28, 2016.

       On September 7, 2016, Appellant timely filed a pro se PCRA petition.

The court appointed PCRA counsel, who filed an amended petition on

December 15, 2016. In the amended petition, Appellant claimed counsel for

his first appeal was ineffective for: 1) failing to raise a proper argument

regarding the illegal seizure of Appellant’s personal items from the hotel room,

and; 2) failing to file a petition for reargument after the Superior Court denied

relief on the suppression issue.        The PCRA court conducted an evidentiary

hearing on April 25, 2017. On April 26, 2017, the court reinstated Appellant’s

right to seek reargument nunc pro tunc in the Superior Court and/or file a

petition for allowance of appeal nunc pro tunc.2

       Appellant filed a petition for reconsideration and reargument nunc pro

tunc, which this Court denied on August 1, 2017. Thereafter, Appellant filed

a petition for allowance of appeal nunc pro tunc, which our Supreme Court

denied on January 17, 2018.

       Despite still having PCRA counsel as his attorney of record, Appellant

attempted to file a pro se motion in the PCRA court on November 29, 2018.

In the pro se motion, Appellant argued that the PCRA court “issued an order,


____________________________________________


2 The order also confirmed that PCRA counsel remained Appellant’s attorney
of record.

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granting and addressing only the second issue” in the amended PCRA petition.

(Pro Se Motion, filed 11/29/18, at 1). Appellant insisted that the PCRA court

“never issued any final orders [or] addressed” the claim of ineffectiveness

regarding direct appeal counsel’s failure to raise a proper argument about the

purportedly illegal seizure. (Id.). Thus, Appellant requested that the PCRA

court “issue a final order with the disposition of” the remaining ineffectiveness

issue. (Id. at 2).

       The Clerk of Court’s office accepted Appellant’s pro se motion, placed a

time stamp on it, made a docket entry reflecting the date of receipt, and

forwarded the motion to PCRA counsel. Before PCRA counsel took any further

action, the PCRA court entered an order on December 24, 2018. The PCRA

court’s order expressly denied the remaining claim in Appellant’s amended

PCRA petition, stating that Appellant did not receive ineffective assistance of

counsel.3

       PCRA counsel timely filed a notice of appeal on January 22, 2019. That

same day, the PCRA court ordered Appellant to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. Appellant timely filed a

Rule 1925(b) statement on February 8, 2019.

       Appellant now raises three issues for our review:

          DID THE [PCRA] COURT ERR IN ITS ORDER OF DECEMBER
          24, 2018, DECIDING [APPELLANT’S] PRO SE MOTION
____________________________________________


3The order also reiterated that PCRA counsel remained attorney of record for
any further proceedings.

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         REQUESTING A FINAL ORDER FOR THE PCRA ISSUE THAT
         WAS IGNORED, INASMUCH AS AT THE TIME OF THE FILING
         AND DECISION [APPELLANT] WAS REPRESENTED BY
         COUNSEL AND THE [PCRA] COURT’S CONSIDERING THE
         MOTION WAS A VIOLATION OF THE PROHIBITION AGAINST
         HYBRID REPRESENTATION?

         DID THE [PCRA] COURT ERR IN ITS ORDER OF DECEMBER
         24, 2018, DECIDING [APPELLANT’S] PRO SE MOTION
         REQUESTING A FINAL ORDER FOR THE PCRA ISSUE THAT
         WAS IGNORED, AND DISMISSING THE BALANCE OF
         [APPELLANT’S] PCRA CLAIMS IN THE AMENDED PETITION
         FILED DECEMBER 15, 2016, INASMUCH AS THE [PCRA]
         COURT DID NOT HAVE JURISDICTION TO DECIDE THE 2016
         CLAIMS AS THE [PCRA] COURT’S ORDER OF APRIL 26,
         2017, REINSTATED [APPELLANT’S] DIRECT APPEAL
         RIGHTS, THE SUPERIOR COURT AFFIRMED THE JUDGMENT
         OF SENTENCE ON AUGUST 1, 2017, THE PEITTION FOR
         ALLOWANCE OF APPEAL … WAS DENIED BY THE SUPREME
         COURT ON JANUARY 17, 2018, AND ACCORDINGLY
         [APPELLANT] HAD ONE YEAR FROM THAT DATE (JANUARY
         17, 2018) TO FILE A PETITION UNDER THE PCRA RAISING
         HIS COLLATERAL CLAIMS?

         DID THE [PCRA] COURT ERR IN ITS ORDER OF DECEMBER
         24, 2018, DECIDING [APPELLANT’S] PRO SE MOTION
         REQUESTING A FINAL ORDER FOR THE PCRA ISSUE THAT
         WAS IGNORED, AND DISMISSING THE BALANCE OF
         [APPELLANT’S] PCRA CLAIMS IN THE AMENDED PETITION
         FILED DECEMBER 15, 2016, INASMUCH AS TRIAL COUNSEL
         …, APPELLATE COUNSEL …, AND FIRST PCRA COUNSEL …
         WERE INEFFECTIVE IN NOT LITIGATING THE ISSUE
         CONCERNING THE WARRANTLESS SEIZURE OF A RECEIPT
         BEARING [APPELLANT’S] NAME FROM THE HOTEL ROOM IN
         QUESTION, AS THERE WAS NO PROBABLE CAUSE TO LINK
         THE RECEIPT TO ANY CRIMINAL ACTIVITY AND THE
         INCRIMINATING CHARACTER OF THE RECEIPT WAS NOT
         READILY APPARENT?

(Appellant’s Brief at vi).

      On appeal, Appellant argues the PCRA court should not have ruled upon

his November 29, 2018 pro se motion. Appellant contends PCRA counsel was

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his attorney of record at the time he submitted the pro se motion; therefore,

the pro se motion was a legal nullity.      Appellant also insists “there was

technically nothing open and pending before the [PCRA] court,” because it had

already reinstated Appellant’s direct appeal rights nunc pro tunc. (Id. at 18).

Under these procedural circumstances, Appellant maintains he should still

possess the right to pursue any and all claims available under the PCRA.

Appellant concludes this Court must vacate the December 24, 2018 order

disposing of the pro se motion and remand the matter to the PCRA court for

the filing of any new PCRA claims Appellant wishes to pursue. We agree.

      When counsel is appointed to represent a PCRA petitioner, “the

appointment … shall be effective throughout the post-conviction collateral

proceedings, including any appeal from disposition of the petition….”

Pa.R.Crim.P. 904(F)(2).    It is well settled that hybrid representation is

prohibited. Commonwealth v. Jette, 611 Pa. 166, 23 A.3d 1032 (2011).

      Further, Pennsylvania Rule of Criminal Procedure 576(A)(4) governs the

submission of pro se filings by represented defendants as follows:

         Rule 576. Filing and Service by Parties

            (A)   Filing

                                  *    *    *

            (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

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          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(A)(4). Pro se filings that require merits review, including

motions, are legal nullities when they are filed by a defendant who is

represented by counsel. See Commonwealth v. Ali, 608 Pa. 71, 89, 10 A.3d

282, 293 (2010); Commonwealth v. Nischan, 928 A.2d 349, 355

(Pa.Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).

       Instantly, the PCRA court’s opinion recognized that PCRA counsel was

still the attorney of record when Appellant attempted to file the November 29,

2018 pro se motion. (See PCRA Court Opinion at 7). Therefore, the pro se

filing was a legal nullity, and the PCRA court should not have addressed it.

See Jette, supra; Ali, supra; Nischan, supra. Accordingly, we vacate the

December 24, 2018 order addressing the pro se motion and remand for

further proceedings. Upon remand, Appellant may present new claims under

the PCRA.4

       Order vacated; case remanded for further proceedings. Jurisdiction is

relinquished.



____________________________________________


4 Because the PCRA court granted relief based upon Appellant’s 2016 petition,
the court must treat any new PCRA petition as Appellant’s first. See
Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa.Super. 2013), appeal
denied, 625 Pa. 649, 91 A.3d 162 (2014) (explaining that when petitioner’s
direct appeal rights are reinstated nunc pro tunc in first PCRA petition,
subsequent petition will be considered first petition for timeliness purposes).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/15/20




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