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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                  :       IN THE SUPERIOR COURT OF
                                               :             PENNSYLVANIA
                   Appellee                    :
                                               :
                     v.                        :
                                               :
RAKEISH RAHSAAN COTTON,                        :
                                               :
                   Appellant                   :       No. 1361 WDA 2017

                  Appeal from the PCRA Order July 31, 2017
             in the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0002484-2001,
            CP-02-CR-0002965-2001, CP-02-CR-0012802-2001

BEFORE:     OLSON, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                FILED APRIL 11, 2018

      Rakeish Rahsaan Cotton (Appellant) appeals pro se from the July 31,

2017 order dismissing his petition filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We vacate the order and remand for

further proceedings consistent with this memorandum.

      After a jury found Appellant guilty of second-degree murder, robbery,

robbery of a motor vehicle, and conspiracy, Appellant was sentenced on June

12, 2002, to life imprisonment and a consecutive 10-to-20 year sentence. The

convictions were affirmed on direct appeal to this Court. Commonwealth v.

Cotton, 876 A.2d 460 (Pa. Super. 2005) (unpublished memorandum). Our

Supreme    Court   denied     allowance   of       appeal   on   August   25,   2005.

Commonwealth v. Cotton, 881 A.2d 818 (Pa. 2005).



*Retired Senior Judge assigned to the Superior Court.
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        Appellant timely filed a PCRA petition on May 10, 2006. The PCRA court

dismissed the petition without a hearing on October 6, 2006.         He filed an

appeal to this Court, and we affirmed the PCRA court on April 16, 2008.

Commonwealth v. Cotton, 953 A.2d 825 (Pa. Super. 2008) (unpublished

memorandum). Again, allowance of appeal was denied. Commonwealth v.

Cotton, 956 A.2d 432 (Pa. 2008).

        Appellant filed his second PCRA petition on August 7, 2012. The PCRA

court dismissed the petition without a hearing on October 1, 2012. He filed

an appeal to this Court, and we affirmed the PCRA court on November 15,

2013.     Commonwealth v. Cotton, 91 A.3d 1287 (Pa. Super. 2013)

(unpublished memorandum).           Again, allowance of appeal was denied.

Commonwealth v. Cotton, 89 A.3d 659 (Pa. 2014) (per curiam order).

        On December 3, 2016, Appellant filed pro se his third PCRA petition. On

January 24, 2017, privately-retained counsel, Craig M. Cooley, Esquire, filed

an entry of appearance on Appellant’s behalf. On March 10, 2017, the PCRA

court issued an order, which, inter alia, returned Appellant’s petition to

defendant’s counsel “for amendment/adoption or other pleading by April 10,

2017.” The Court served the order on Appellant and Attorney Cooley. The

record does not indicate that Attorney Cooley took any further action.

        On March 29, 2017, Appellant pro se filed a motion for waiver of counsel.

In the motion, Appellant sought to “waive the right to be represented by

counsel” and proceed pro se. Motion for Waiver of Counsel, 3/29/2017, at 2.


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The following day, Appellant filed pro se an amended PCRA petition. The PCRA

court subsequently issued a notice of intent to dismiss Appellant’s petition

without a hearing pursuant to Pa.R.A.P. 907.1 The Rule 907 notice neither

addressed Appellant’s request to proceed pro se nor was served on Attorney

Cooley. Notice of Intent to Dismiss, 7/11/2017, at 1.

      On May 23 and 25, 2017, Appellant filed pro se two documents

requesting an evidentiary hearing and objecting to the court’s notice of intent

to dismiss. On July 11, 2017, Appellant filed pro se a motion to ascertain the

status of his PCRA petition.2   On July 31, 2017, the PCRA court dismissed

Appellant’s petition. Appellant timely filed pro se a notice of appeal on August

11, 2017.   On August 15, 2017, the clerk of courts forwarded Appellant’s

notice of appeal to Attorney Cooley; the record does not indicate that Attorney

Cooley took any further action. On October 2, 2017, the PCRA court ordered




1
  The Rule 907 notice is dated May 17, 2017, but it was not entered on the
docket until July 11, 2017. Appellant presumably received the notice in a
timely fashion because Appellant objected to the dismissal prior to the
deadline imposed by the court.

2 On July 28, 2017, Appellant filed pro se a notice of appeal from Rule 907
notice of intent to dismiss. The clerk of courts notified Appellant that his
appeal was premature due to a final order not being issued and did not forward
the notice of appeal to this Court. This was improper. See Pa.R.A.P. 905(b)
(requiring the clerk of courts to “immediately transmit to the prothonotary of
the appellate court named in the notice of appeal a copy of the notice of
appeal….”); Commonwealth v. Williams, 106 A.3d 583, 588-89 (Pa. 2014)
(holding the clerk of courts is “obligated to accept and process notices of
appeal upon receipt in accordance with the Rules of Appellate Procedure,
notwithstanding any perceived defects therein”).

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Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925. Appellant filed pro se a concise statement, and

the PCRA Court subsequently issued an opinion pursuant to Pa.R.A.P. 1925(a).

      In this Court, Appellant filed a brief pro se claiming that his PCRA petition

satisfied a timeliness exception, and that the PCRA court erred in dismissing

his petition without a hearing. Appellant’s Brief at ix. Before we consider the

merits of the appeal, we must determine whether the issues are properly

before us.

      Because this was Appellant’s third PCRA petition and no evidentiary

hearing was held, Appellant did not have a rule-based right to counsel. See

Pa.R.Crim.P. 904(C), (D). Nevertheless, Appellant was free to retain his own

counsel.     As noted above, Attorney Cooley entered his appearance on

Appellant’s behalf pursuant to Pa.R.Crim.P. 904(A) (“Counsel for defendant

shall file a written entry of appearance with the clerk of courts promptly after

being retained, and serve a copy on the attorney for the Commonwealth.”).

Because this Commonwealth prohibits hybrid representation, once Attorney

Cooley entered his appearance, Appellant’s ability to proceed pro se ceased.

Commonwealth v. Willis, 29 A.3d 393, 400 (Pa. Super. 2011). Further,

once he entered his appearance, Attorney Cooley was obligated to represent

Appellant or seek leave of court to withdraw. See Pa.R.Crim.P. 120(A)(4)

(“An attorney who has been retained … shall continue such representation




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through direct appeal or until granted leave to withdraw by the court pursuant

to paragraph (B).”). He did neither.

      For its part, despite Attorney Cooley’s representation of Appellant, the

PCRA court accepted and ruled upon Appellant’s pro se amended PCRA

petition. This was error. See Willis, 29 A.3d at 400 (holding the trial court

erred by accepting an amended PCRA petition filed pro se by a petitioner who

was represented by counsel). Generally, pro se filings by represented parties

have no legal effect and are legal nullities. Commonwealth v. Williams,

151 A.3d 621, 623 (Pa. Super. 2016). “When a counseled defendant files a

pro se document, it is noted on the docket and forwarded to counsel pursuant

to Pa.R.Crim.P. 576(A)(4), but no further action is to be taken.” Id.

      Furthermore, the PCRA court did not serve any of its orders upon

Attorney Cooley after its initial March 10, 2017 order requiring Attorney Cooley

to file an amended petition or other filing by April 10, 2017. See Pa.R.Crim.P.

114(B)(1) (“A copy of any order or court notice promptly shall be served on

each party’s attorney, or the party if unrepresented.”). Finally, the clerk of

courts failed to forward Appellant’s pro se filings to Attorney Cooley, except

for the August 11, 2017 notice of appeal.        See Pa.R.Crim.P. 576(A)(4)

(providing that the clerk of courts shall accept for filing documents submitted

pro se by a represented defendant and forward copies to the defendant’s

attorney).




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     Due to the procedural quagmire below, we vacate the PCRA court’s order

dismissing Appellant’s petition and remand to the PCRA court to rule on

Appellant’s request to proceed pro se.3

     Order     vacated.   Remand    for   proceedings   consistent   with   this

memorandum. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary




Date: 4/11/2018




3 We decline to quash or dismiss Appellant’s appeal. Although Appellant was
still represented by counsel at the time he filed the notice of appeal, we are
permitted to consider his pro se notice of appeal. See Commonwealth v.
Cooper, 27 A.3d 994, 1007 (Pa. 2011) (holding that a pro se notice of appeal
from a final judgment filed by a represented appellant is not automatically
void). Further, unlike in Commonwealth v. Glacken, 32 A.3d 750 (Pa.
Super. 2011), where this Court quashed an appeal filed pro se by a
represented party due to the lack of a counseled brief, Appellant requested
permission to proceed pro se. See Glacken, 32 A.3d at 753 (holding that
Pa.R.A.P. 3304 and Commonwealth v. Ellis, 626 A.2d 1137 (Pa. 1993)
required the Court to quash the appeal because an appellant must either allow
his attorney to represent him or request permission to proceed pro se).

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