J   -S25024-19
                                    2019 PA Super 236
    COMMONWEALTH OF PENNSYLVANIA                 :       IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA

                  v.


    MICHAEL ANTHONY PERSAUD

                        Appellant                :       No. 1615 MDA 2018

         Appeal from the Judgment of Sentence Entered August 29, 2018
      In the Court of Common Pleas of Lebanon County Criminal Division at
                        No(s): CP-38-CR-0002009-2016


BEFORE:      STABILE, J., MURRAY, J., and MUSMANNO, J.

OPINION BY MURRAY, J.:                                           FILED AUGUST 05, 2019

        Michael Anthony Persaud (Appellant) appeals from the judgment of

sentence imposed after        a   jury convicted him of multiple crimes under The
Controlled Substance, Drug, Device and Cosmetic Act, including possession of

a   controlled substance (35 P.S.     §   780-113(a)(16)); possession with the intent

to deliver   a   controlled substance (PWID) (35 P.S.        §   780-113(a)(30)); criminal

conspiracy to commit PWID (18 Pa.C.S.A.              §   903/35 P.S.   §   780-113(a)(30));

criminal use of communication facility (18 Pa.C.S.A.                       §   7512(a)); and

possession of drug paraphernalia (35 P.S.            §   780-113(a)(32)). Additionally,

Appellant's counsel, Henry W. Fenton, Esquire (Counsel), seeks to withdraw

from representation pursuant to Anders v. California, 38 U.S. 738 (1967),

and    Commonwealth v. Santiago, 978 A.2d 349                    (Pa. 2009).    Upon review,

we grant Counsel's petition to withdraw and affirm Appellant's judgment of

sentence.
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        The trial court detailed the protracted and irregular post -trial procedural

history of this case as follows:

           On September 20, 2017, Appellant waived Rule         704(A)(1) of
        the Pennsylvania Rules of Criminal Procedure (requiring a
        sentence be imposed within ninety days after conviction).
        Appellant declared that he knowingly waived said provisions after
        consultation with his then Counsel. Appellant waived said right so
        that he could be transported to Rhode Island for a guilty plea and
        sentencing on federal charges pending in that jurisdiction.
        Appellant acknowledged that he would be sentenced in the case
        sub judice upon his return to the Lebanon County Correction
        Facility.  The [trial c]ourt, after consideration of Appellant's
        waiver; that he was, at the time, in Federal Prison in Rhode Island;
        and would be sentenced on the federal charges in early January,
        granted Appellant's request to continue sentencing from
        November 15, 2017 until January 31, 2018.

            On January 31, 2018, [] Appellant was sentenced, by the
        Honorable Charles T. Jones, Jr., to pay the costs of prosecution;
        fines in the total amount of two thousand six hundred dollars
        ($2,600.00); and undergo imprisonment in a State Correctional
        Institution for an indeterminate period the minimum of which to
        be ninety-six (96) months and the maximum of which shall be
        thirty (30) years (consecutive to his Rhode Island Federal
        Sentence) with an RRR-I minimum sentence of seventy-two (72)
        months.

           On February 9, 2018, Appellant filed a Pro Se Motion for
        Modification of Sentence.     In his Motion for Modification[,]
        Appellant states that his [c]ounsel did not do the following:
        present accurate Pre -Sentence Investigation information, present
        letters from family and friends of [] Appellant, failed to inform the
        [c]ourt that the Federal Judge who sentenced Appellant prior to
        this [c]ourt's sentencing recommended that this [c]ourt run its
        sentence concurrent to Appellant's federal sentence, and explain
        to the [c]ourt that some of the Pre -Sentence Investigation
        information was incorrect.

           Further, Appellant complained that the [c]ourt was incorrectly
        under the impression that [] Appellant had served a full sentence
        of six (6) years for a prior conviction, when Appellant alleges he
        was sentenced to ninety (90) days in jail and six (6) years and

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        nine (9) months suspended time and probation. [] Appellant
        explained in his Motion that he had attended a substance abuse
        program for eight (8) weeks while in Federal custody awaiting
        sentencing and graduation from the program. Finally, a part of
        Appellant's Federal Sentence included a one (1) year outpatient
        substance abuse program that Appellant would have to attend
        once a week until completed, followed by two (2) years of
        supervised release.       The [c]ourt subsequently entered a
        Scheduling Order for disposition of Appellant's Motion on February
        13, 2018. On February 12, 2018, three days after filing his Motion
        for Modification of Sentence, Appellant wrote a Pro Se letter to the
        Honorable President Judge John C. Tylwalk regarding his
        sentencing and obstacles in his life, both past and present.

            On February 21, 2018, after receipt of the [c]ourt's scheduling
        Order, Attorney Timothy T. Engler (who had represented
        Appellant at trial) filed a Petition to Withdraw as Counsel.
        Attorney Engler stated in his Petition that a conflict of interest
        existed in his continuing representation of Appellant because
        Appellant had alleged three instances of ineffectiveness of
        [c]ounsel at the post-trial/sentencing phase of the case. The
        [c]ourt scheduled a hearing for March 7, 2018, to decide Attorney
        Engler's Petition to Withdraw his Appearance. The Courthouse
        was closed on March 7, 2018, in anticipation of a severe, winter
        snowstorm, and the Petition to Withdraw was rescheduled for April
        4, 2018.

            Appellant timely filed a Brief in Support of his Motion for
        Modification of Sentence on March 8, 2018. The Commonwealth
        filed a Motion for Continuance/Extension on March 19, 2018,
        which was granted and the Commonwealth thereafter filed its
        Brief in Opposition on April 2, 2018.

           On March 22, 2018, prior to the re -scheduled hearing on
        Attorney Engler's Petition to Withdraw Appearance, Harry W.
        Fenton, Esquire entered his appearance on behalf of the Appellant.
        On April 4, 2018, the Court granted Attorney Engler's Petition to
        Withdraw his Appearance. On April 5, 2018, Appellant, through
        his new Counsel, filed a Motion for Leave to File a Supplemental
        Brief in Support of his Motion for Modification of Sentence.
        Appellant's Motion was granted by the Court on April 6, 2018.
        Appellant was given twenty (20) days to file a Supplemental Brief.
        Appellant filed his Supplemental Brief in Support of his Motion on
        April 24, 2018. On June 6, 2018, after careful consideration of

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        Appellant's Brief and Supplemental Brief, as well as consideration
        of the Commonwealth's Opposition Brief, the [c]ourt granted
        Appellant's Motion and scheduled the case for a Modification of
        Sentence Hearing. The [c]ourt did so to ensure that Appellant's
        sentence would be based on all available, accurate information.

           On August 29, 2018, [] Appellant was re -sentenced.          The
        [c]ourt, after consideration of the pre -sentence investigation
        report; the voluminous amount of letters that were given to the
        [c]ourt on that day and at the initial sentencing; the fact that the
        2007 sentence was not a six (6) year incarceration sentence; the
        guideline ranges; and the testimony presented at trial, and that
        day, sentenced Appellant to pay the costs of prosecution; fines in
        the total amount of two thousand six hundred dollars ($2,600.00);
        and undergo imprisonment in a State Correctional Institution for
        an indeterminate period the minimum of which to be eighty-four
        (84) months and the maximum of which shall be twenty-five (25)
        years (consecutive to his Rhode Island Federal Sentence) with an
        RRR-I minimum sentence of sixty-three (63). The August 29,
        2018 sentence in this case reflected a nine (9) month RRRI
        sentence reduction, a twelve (12) month minimum -sentence
        reduction, and a five (5) year maximum -sentence reduction when
        compared to Appellant's original sentence imposed on January 31,
        2018.

           Thereafter, on September 18, 2018, Counsel for Appellant filed
        a Transcript Request seeking the transcript of the entire
        proceeding. Appellant filed a Pro Se Motion in Limine with Respect
        to [the] I -Phone 6 and USB Seized from [Appellant]. [Appellant]
        requested that the Commonwealth be barred from using his I -
        Phone 6 and USB as evidence against him, and both be returned
        to Appellant. The [c]ourt denied Appellant's Pro Se Motion in
        Limine on September 21, 2018. Concurrently, Appellant filed a
        Pro Se Petition to Proceed In Forma Pauperis. Appellant's Petition
        was granted on October 4, 2018.

           On September 26, 2018, Appellant filed a Pro Se Notice of
        Appeal. The Court entered an Order on October 4, 2018, directing
        Appellant, by and through his Counsel, to file a Concise Statement
        of Errors Complained of on Appeal no later than twenty-one (21)
        days from the entry of said Order (October 26, 2018). The Order
        further provided that any issues not properly preserved and/or
        included in the Concise Statement of Errors Complained of on
        Appeal would be deemed waived. Appellant untimely filed his Pro

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            Se Concise Statement of Matters Complained of on Appeal on
            October 29, 2018. However, the Court notes that Appellant's
            mailing envelope was post -marked October 24, 2018, and                      .   .   .


            thus address[ed] Appellant's claims.

Trial Court Opinion, 11/21/18, at 4-7.                     On November 8, 2018, Counsel also

filed   a    Rule 1925(b) statement on behalf of Appellant.

                                        Hybrid Representation
            At the outset, we are compelled to address the hybrid representation

that occurred             in the   trial court once Appellant, on September 26, 2018, filed

the timely pro se notice of appeal, despite being represented by Counsel.

            It   is   well -settled that an appellant does not have       a   right to proceed both

pro se and with the benefit of counsel.                      Such representation is considered

"hybrid" representation and                  is   prohibited within the Commonwealth.                See

Commonwealth v. Staton, 184 A.3d 949, 958                           (Pa. 2018) (no defendant has

a   constitutional            right    to    self -representation     together    with   counseled

representation "either at trial or on appeal"); see also Commonwealth v.

.7ette, 23 A.3d 1032, 1036 (Pa. 2011) (citing Pennsylvania's long-standing

policy that precludes hybrid representation).                        The Pennsylvania Supreme

Court has expressly stated that "[c]onsistent with Rule [of Criminal Procedure]

576, decisional law from this Court has clarified Commonwealth policy

regarding hybrid representation.                         No defendant has a        right to hybrid

representation, either at trial or on appeal." Commonwealth v. Padilla, 80

A.3d 1238, 1259 (Pa. 2013) (italics in original, citations omitted), cert. denied,

Padilla v. Pennsylvania,                    ---   U.S.    ---,   134 S. Ct. 2725 (2014).             "Our

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Supreme Court has stated that Rule 576(A)(4), requiring the prothonotaries

to forward all pro se filings to counsel upon receipt, reflects this policy."

Commonwealth v. Leatherby, 116 A.3d 73, 86                                      (Pa.   2015) (citation

omitted).

       The above notwithstanding, we recognize that when an appellant is

represented by counsel at the time he files                         a   pro se notice of appeal, the

appeal has effect and is not            a   nullity. 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).

However, "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." Jette, 23 A.3d at 1044 (emphasis added). Moreover,

pro se documents that require merits review, i.e., motions, Pa.R.A.P. 1925(b)

statements, petitions, briefs, etc., are legal nullities when they are filed by                         a


defendant represented by counsel. Commonwealth v. Nischan, 928 A.2d

349, 355 (Pa. Super. 2007); Commonwealth v. Ali, 10 A.3d 282, 293 (Pa.

2010) (pro se 1925(b) statement                 a   nullity).

       The policy against hybrid representation is "driven primarily by the

problems        of competing          filings       from       an   appellant    and    his   counsel."

Commonwealth v. Glacken, 32 A.3d 750, 753                                   (Pa. Super. 2011).         In

Glacken,        a    represented appellant sought relief from the denial of his first

PCRA   petition; he filed         a   pro se notice of appeal, pro se Rule 1925(b)


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statement and pro se appellate brief with this Court, while his "counsel of

record [did] not file[] anything."     Id. at 752. Under those circumstances, this
Court distinguished .7ette, noting that "we do not have competing filings from

[appellant] and his counsel. Instead, we have only          a   pro se brief in   a   case

where counsel was never permitted to withdraw and [the appellant] never

waived his right to counsel."         Id. at 753.   Ultimately, the Glacken court

concluded that it was "constrained to quash [appellant]'s appeal for lack of            a


counseled brief."'        Id.
         Unlike the attorney in Glacken, Counsel in this case has filed an Anders

brief.         However,    we would   be   remiss   if we overlooked       the hybrid

representation         that preceded Counsel's appellate brief.         For   example,

Appellant filed his notice of appeal pro se.         After the trial court ordered

compliance with Pennsylvania Rule of Appellate Procedure 1925(b), both

Appellant, acting pro se, and Counsel, thereafter, filed 1925(b) statements.

See Ali, 10 A.3d at 293 (defendant's pro se Pa.R.A.P. 1925(b) statement was

a   legal nullity because defendant was represented by counsel); see also Trial

Court Opinion, 11/21/18, at 7.

         Specifically, the record reveals the following filings:




"  This Court further instructed, "Should [appellant] choose to file another PCRA
petition   .   and the PCRA court appoints counsel, appointed counsel must"
               .   .


file a brief, where "from the record it appears that current counsel did neither,
to the detriment of his client." Glacken, 32 A.3d at 753 (italics in original).

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                                Trial Court
        August 29, 2018      Trial court imposes judgment of sentence

        September 26, 2018   Appellant files pro se notice of appeal

        October 5, 2018      Trial court orders Appellant to file Rule 1925(b)
                             statement within 21 days, with the order sent to
                             both Appellant and Counsel

        October 29, 2018     Appellant files pro se Rule 1925(b) statement
                             with the prison envelope from SCI Houtzdale
                             postage -stamped October 24, 2018

        November 8, 2018     Counsel      "files"
                                               Appellant's Rule 1925(b)
                             statement, consisting of an exact copy of
                             Appellant's pro se 1925(b) statement, with
                             Counsel's typed annotation, "Attached is the
                             Statement of Matters On Appeal, filed by
                             Defendant, erroneously filed in the Superior
                             Court, and returned from that Court as
                             improvidently submitted."

                                 Superior Court
        November 15, 2018    Counsel files application to withdraw as counsel
                             with this Court, stating he "has advised
                             Appellant that he believes the appeal has no
                             merit and is frivolous. If any brief were to be
                             filed by [Counsel], it would be filed pursuant to
                             Anders v. California, 386 U.S. 738 (1967).
                             [Appellant] believes that the appeal has merit.
                             [Appellant] wishes to file his own brief and does
                             not want an "Anders Brief" to be filed. Attached
                             as Exhibit A,       and in      accordance with
                             Commonwealth v. Turner, 544 A.2d 927 (Pa.
                             1988),   is a    "no -merit" memorandum."

        November 27, 2018    Order of Superior Court denying Counsel's
                             application to withdraw from representation
                             because Counsel "filed an application to
                             withdraw as counsel and an accompanied

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                                   memorandum               in           accordance          with
                                   Commonwealth v. Turner, 544 A.2d 927 (Pa.
                                   1988) and Commonwealth v. Finley, 550
                                   A.2d 213 (Pa. Super. 1988). However, the
                                   instant matter is an appeal from a judgment of
                                   sentence.   . [such that] counsel is directed to
                                                   .


                                   file with the Prothonotary of this Court an
                                   amended application to withdraw as counsel
                                   within thirty (30) days of this order and an
                                   Anders brief once a briefing schedule has been
                                   established."

        December 12, 2018          Counsel files       Anders brief          in this Court along
                                   with another application to withdraw from
                                   representation this time citing Anders

        April 11, 2019             Appellant files pro se response to Anders brief

        April 16, 2019             Appellee files          brief        on     behalf   of    the
                                   Commonwealth

        After scrutinizing the record, we conclude that our appellate review                   is

not impeded by hybrid representation. In the interest of judicial economy, we

proceed with appellate review.

                                   Anders Analysis
        On   December      12,    2018,   Counsel        filed     an    Anders brief and
accompanying petition to withdraw as counsel in which he argues that

Appellant's appeal   is   frivolous. When faced with an Anders brief, this Court

may not review the merits of any issues without first examining counsel's

request to withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.

Super. 2007) (en banc).          Prior to withdrawing as counsel on direct appeal

under Anders, counsel must file            a   brief that meets the requirements

established by the Pennsylvania Supreme Court in Santiago, namely:

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        (1) provide a summary of the procedural history and facts, with
        citations to the record;

        (2) refer to anything in the record that counsel believes arguably
        supports the appeal;

        (3) set forth counsel's conclusion that the appeal   is   frivolous; and

        (4) state counsel's reasons for concluding that the appeal is
        frivolous. Counsel should articulate the relevant facts of record,
        controlling case law, and/or statutes on point that have led to the
        conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361. Additionally:
        Counsel also must provide   copy of the Anders brief to his client.
                                    a
        Attending the brief must be a letter that advises the client of his
        right to: "(1) retain new counsel to pursue the appeal; (2)
        proceed pro se on appeal; or (3) raise any points that the
        appellant deems worthy of the court[']s attention in addition to
        the points raised by counsel in the Anders brief."
        Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
        2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-80           (Pa. Super. 2014). After

determining that counsel has satisfied these technical requirements of Anders

and   Santiago, only then may this Court "conduct an independent review of
the record to discern if there are any additional, non -frivolous issues

overlooked by counsel." Commonwealth v. Flowers, 113 A.3d 1246, 1250

(Pa. Super. 2015) (citations and footnote omitted).

        Here, Counsel's Anders brief complies with the above requirements. He

includes   a   summary of the relevant factual and procedural history; refers to

the portions of the record and relevant authority that could arguably support

Appellant's claim; and sets forth the conclusion that the appeal           is   frivolous


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and that no other issues could be raised.                    See Anders Brief at 4-11.

Additionally, Counsel has supplied Appellant with             a   copy of the Anders brief

and   a   letter explaining the rights enumerated in Nischan, supra. See id. at

13; Petition to Withdraw as Counsel, 12/12/18, Exhibit A.                  Thus, because

Counsel has complied with the technical requirements for withdrawal, we

proceed to independently review the record to determine if the issue Counsel

presents in the Anders brief is frivolous, and ascertain whether there are non -

frivolous issues Appellant may pursue on appeal.

          Counsel's Anders brief raises      a   single issue for our review:      whether

the trial court abused its discretion in sentencing Appellant to consecutive, as

opposed to concurrent, sentences on his convictions. See                Anders Brief at 8.
This claim challenges the discretionary aspects of Appellant's sentence.

          "The right to appellate review of the discretionary aspects of       a   sentence

is   not absolute, and must be considered         a   petition for permission to appeal."

Commonwealth v. Buterbaugh,                91 A.3d 1247, 1265 (Pa. Super. 2014).

"An appellant must satisfy       a   four-part test to invoke this Court's jurisdiction

when challenging the discretionary aspects of            a   sentence." Id. We conduct

this four-part test to determine whether:

          (1) the appellant preserved the issue either by raising it at the
          time of sentencing or in a post[ -]sentence motion; (2) the
          appellant filed a timely notice of appeal; (3) the appellant set forth
          a concise statement of reasons relied upon for the allowance of
          his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant
          raises a substantial question for our review.
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Commonwealth v. Baker, 72 A.3d 652, 662                   (Pa. Super. 2013) (citation

omitted). "A defendant presents        a   substantial question when he sets forth      a


plausible argument that the sentence violates         a   provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process."

Commonwealth v. Dodge, 77 A.3d 1263, 1268                        (Pa.   Super.     2013)

(quotations and citations omitted).

        Appellant has failed to preserve this issue for our review.              The re -

sentencing hearing transcript contains no objection from Appellant that the

sentence he received was unreasonable.              Furthermore, following his re -

sentencing, Appellant failed to file   a   post -sentence motion for reconsideration

of his sentence.     Accordingly, Appellant's challenge to the discretionary

aspects of his sentence is waived. See Commonwealth v.               Austin, 66 A.3d
798, 808 (Pa. Super. 2013) (noting that an appellant must preserve                      a


challenge to the discretionary aspects of his sentence in               a   timely post -

sentence motion).

        Finally, our independent review of the record reveals no other non -

frivolous issues that Appellant could raise on appeal. See Flowers, 113 A.3d

at 1250. We thus grant Counsel's petition to withdraw and affirm Appellant's

judgment of sentence.




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        Petition to withdraw granted. Judgment of sentence affirmed.

        Judge Musmanno joins the opinion.

        Judge Stabile files   a   concurring/dissenting opinion.



Judgment Entered.




J seph D. Seletyn,
Prothonotary


Date: 8/5/2019




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