J-S25024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37




 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.

MEMORANDUM BY MURRAY, J.:                     FILED SEPTEMBER 06, 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,
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we grant Counsel’s petition to withdraw and affirm Appellant’s judgment of

sentence.

      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.


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        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
     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.

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     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
     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)

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      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
      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.

      At the outset, we note the hybrid representation that occurred in the

trial court when Appellant, on September 26, 2018, filed a timely pro se notice

of appeal and a Pa.R.A.P. 1925(b) statement, 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.

Jette, 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,

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Padilla v. Pennsylvania, ––– U.S. –––, 134 S. Ct. 2725 (2014).                “Our

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).

      We further 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).

      Here, Appellant’s pro se notice of appeal was valid.          See Cooper,

supra. However, when Appellant filed his timely pro se 1925(b) statement,

it was a legal nullity, and the trial court should have forwarded the pro se filing

to Counsel, and ordered a counseled statement nunc pro tunc, as provided


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in Pennsylvania Rule of Appellate Procedure 1925(c)(3). See e.g., 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).           Instead, Counsel

untimely filed the Appellant’s pro se 1925(b) statement as his own.

Notwithstanding this irregularity, the trial court issued an opinion.           Since

counsel did not timely file a 1925(b) statement, rendering counsel ineffective

per se, Pa.R.A.P. 1925(c)(3) would require that we remand this matter to the

trial court to direct the filing of a statement and preparation of a 1925(a)

opinion by the trial court. After careful consideration, we conclude that we

need not order a remand as our appellate review has not been impeded. The

trial court considered counsel’s untimely 1925(b) statement and prepared a

1925(a) opinion. A remand would only accomplish what already has been

done. Accordingly, in the interest of judicial economy, we proceed to address

the matters before us.

      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 a copy of the Anders brief to his client.
     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.

      Petition to withdraw granted. Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/6/2019




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