J-S60022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                      v.

DANIEL CANDELARIO

                            Appellant                   No. 527 MDA 2014


       Appeal from the Judgment of Sentence entered March 4, 2014
           In the Court of Common Pleas of Lackawanna County
             Criminal Division at No: CP-35-CR-0000504-2012


BEFORE: OTT, STABILE, and JENKINS, JJ.

MEMORANDUM BY STABILE, J.:                         FILED NOVEMBER 17, 2014

     Appellant Daniel Candelario appeals from the March 4, 2014, judgment

of sentence entered in the Court of Common Pleas of Lackawanna County

(trial court), after he pled guilty to escape under Section 5121(a) of the

Crimes Code (Code), 18 Pa.C.S.A. § 5121(a). Upon review, we quash the

appeal.

     The      facts   and   procedural   history   underlying   this   appeal   are

undisputed.     On February 15, 2012, Detective Brian Kosch, Lackawanna

County District Attorney’s Office, charged Appellant with aggravated assault

and escape. In his affidavit of probable cause accompanying the complaint,

Detective Kosch alleged:
     On 02/13/2012 I received information from [Correctional Officer
     (CO)] Dave McDonald, a guard at the Lackawanna County Work
     Release Program, that at approximately 1850hrs inmate
     [Appellant] had been instructed that he was being returned back
     to the Lackawanna County Prison because of a violation of his
     court order. According to the report after inmate [Appellant]
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      was informed of his being removed back to the Lackawanna
      County Prison for housing [Appellant] became combative
      refusing to be taken into custody. It was at this time [Appellant]
      pushed CO Dave McDonald out of his way and struck CO Jack
      Warner with his body driving him to the floor with [Appellant]
      falling on top of him[, a]s seen in the recorded surveillance video
      which is mounted in the ceiling of the facility. In the video it
      shows that [Appellant] continued to fight with both CO’s [sic]
      until he was able to free himself and run run [sic] out the door.

Affidavit of Probable Cause, 2/15/12. At the October 23, 2013, guilty plea

hearing, Appellant requested the trial court appoint him another attorney.

Appellant alleged that his attorney, identified in the hearing transcript only

as Mr. Petorak, failed to communicate with him. N.T. Guilty Plea, 10/23/13,

at 2-3.   The trial court, thereafter, replaced Attorney Petorak with William

Peters, Esquire, who represented Appellant at that guilty plea hearing. Id.

Ultimately, Appellant pled guilty to escape and the Commonwealth nolle

prossed the aggravated assault count.

      On January 21, 2014, the trial court appointed Christopher Osbourne,

Esquire, to represent Appellant at sentencing. On March 4, 2014, the trial

court imposed upon Appellant a sentence of nine to twenty-four months’

incarceration.    On   March   18,   2014,   Attorney   Osbourne   moved    for

reconsideration of sentence, arguing that Appellant was entitled to “ten

months and twenty-eight days of credit towards his instant sentence.”

Motion for Reconsideration of Sentence, 3/18/13, at ¶ 9.

      The next day, on March 19, 2014, Appellant filed a pro se notice of

appeal.   On March 20, 2014, the trial court ordered the pro se notice be

forwarded to Attorney Osbourne. The trial court also ordered that, because

it is unable to recognize hybrid representation, “[Appellant] has no right to

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file a pro se motion because he is represented by counsel.”            Trial Court

Order, 3/20/14. In the order, the court noted that, as of March 20, 2014,

Appellant had not requested to proceed pro se.

       On April 2, 2014, the trial court issued an order, granting Appellant’s

counseled reconsideration motion and imposing a new sentence awarding

ten months and twenty-eight days of credit.          In a footnote in the April 2,

2014 order, the trial court noted that Appellant’s filing of a pro se notice of

appeal was premature because his attorney had moved for reconsideration

of the sentence imposed.         Explaining its rationale for refusing to entertain

Appellant’s pro se notice, the trial court noted:
       [I]n an effort to avoid procedural difficulty, on March 20, 2014,
       [the trial court] ordered that no further action on [Appellant’s]
       pro se [n]otice of [a]ppeal occur unless counsel of record
       forwards the requisite motion.         [The trial court] further
       disapproved [Appellant’s] pro se [n]otice of [a]ppeal citing the
       inability to recognize hybrid representation.[1]

Trial Court Order, 4/2/14, at n.1 (internal citation omitted). 2 Nonetheless,

the trial court informed Appellant that he had thirty days to file an appeal
____________________________________________


1
  “A criminal defendant has no right to hybrid representation in either [the]
trial or appellate courts.” Commonwealth v. Cooper, 27 A.3d 994, 1000
n.9 (Pa. 2011).
2
  To the extent the trial court disapproves of the Lackawanna County Clerk
of Court’s docketing of the pro se notice of appeal, we disagree. If a
counseled defendant attempts to file a pro se document with the court, “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, . . . place the
document in the criminal case file,” and forward “[a] copy of the time
stamped document . . . to the defendant’s attorney and . . . the
Commonwealth within [ten] days of receipt.”              Pa.R.Crim.P. 576(A)(4)
(emphasis added).



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from the new judgment of sentence entered on April 2, 2014.        Differently

put, “the time for filing the notice of appeal [was to] begin anew.”   Id. at

n.2.   On April 15, 2014, Attorney Osbourne moved in the trial court to

withdraw his appearance, which the trial court granted on April 16, 2014.

       On April 3, 2014, the Commonwealth filed in this Court an application

to quash as premature Appellant’s pro se appeal from the March 4, 2014

judgment of sentence.      Appellant opposed the application.    On April 15,

2014, Appellant filed in this court an application for relief, requesting

assistance of counsel by Attorney Osbourne.      In his application, Appellant

noted that this Court treated him as pro se because the trial court docket

erroneously characterized Attorney Osbourne as standby counsel rather than

counsel of record. On May 20, 2014, a motions panel of this Court issued an

order denying the Commonwealth’s application to quash the appeal without

prejudice. The panel granted Appellant’s application for relief. In so doing,

the panel vacated the trial court’s April 16, 2014 order granting Attorney

Osbourne leave to withdraw and directed Attorney Osbourne to immediately

enter his appearance in this Court to continue his representation of Appellant

on appeal. On June 2, 2014, in compliance with our May 20, 2014 order,

Attorney Osbourne entered his appearance.

       On Appeal, Appellant raises four issues for our review:
       [1.] Whether the court order issued by the [trial court] dated
       December 20, 2010, is an illegal court order as it cited 61 P.S.
       § 2141, which section of the law had been repealed prior to the
       issuing of the order?
       [2.] Whether the lower court erred in not granting [Appellant’s]
       petition to dismiss pursuant to Rule 600 as [Appellant] was

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J-S60022-14


       incarcerated after withdrawal of his guilty plea more than one
       hundred twenty (120) days before being brought to court?
       [3.] Whether the lower court erred in accepting [Appellant’s]
       guilty plea [under] 18 Pa.C.S.A. [§] 5121 to the charge of
       escape where [Appellant] was on parole at the time of his
       leaving the work release center?
       [4.] Whether the lower court erred in not granting [Appellant’s]
       motion pursuant to Rule 704 where the lower court erred in not
       bringing [Appellant] to sentencing after his guilty pleas for one
       hundred thirty-three (133) days in error of the Rule 704 which
       states [a] defendant must be sentenced within ninety (90) days?

Appellant’s Brief at 4.      Before we address the merits, we must determine

whether we have jurisdiction over this appeal. Our courts will not entertain

pro se filings while an appellant remains represented, and such filings have

been described as legal nullities.             See Commonwealth v. Glacken, 32

A.3d 750, 752-53 (Pa. Super. 2011) (“Pursuant to our Rules of Appellate

procedure and decisional law, this Court will not review the pro se filings of a

counseled appellant.”); accord Commonwealth v. Ali, 10 A.3d 282, 293

(Pa. 2010). Here, while represented by counsel, Appellant appealed pro se

from the March 4, 2014, judgment of sentence.             Thus, because Appellant

was represented by counsel, his pro se notice of appeal was rendered a legal

nullity.   Moreover, as noted earlier, the trial court in fact vacated and

replaced the March 4, 2014 judgment of sentence from which Appellant filed

his pro se appeal by the April 2, 2014 judgment of sentence.3 In so doing,

____________________________________________


3
  We note with deep concern that the trial court exercised jurisdiction over
Appellant’s counseled post-sentence motion, which was filed on March 18,
2014. As the docket in this case reveals, Appellant had only ten days from
the March 4, 2014 judgment of sentence to file such motion.             See
Pa.R.Crim.P. 720(A)(1) (“[A] written post sentence motion shall be filed no
(Footnote Continued Next Page)


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J-S60022-14



the trial court rendered moot the appeal from March 4, 2014 judgment of

sentence.    We, therefore, lack jurisdiction over the pro se appeal for two

compelling reasons. The pro se notice is a legal nullity and the appeal from

the March 4, 2014, judgment of sentence is moot.

      Appellant, however, can overcome quashal in the case sub judice by

establishing that he appealed within thirty days of the April 2, 2014

judgment of sentence. See Pa.R.Crim.P. 720(A)(3) (“If the defendant does

not file a timely post-sentence motion, the defendant’s notice of appeal shall

be filed within 30 days of imposition of sentence.”); see also Pa.R.A.P.

903(a) (“[T]he notice of appeal . . . shall be filed within 30 days after entry

of the order from which the appeal is taken.”). As we previously stated, the

trial court in its April 2, 2014 order notified Appellant of his right to file an

appeal within thirty days of new judgment of sentence. Appellant, however,

failed to take any action. The record here is devoid of any indication that

Appellant filed any notice of appeal within thirty days of the April 2, 2014



                       _______________________
(Footnote Continued)

later than [ten] days after imposition of sentence.”). As a result, the March
18, 2014 post-sentence motion was untimely.             Notwithstanding the
untimeliness of the post-sentence motion, we do not conclude that the trial
court lacked jurisdiction to modify its judgment of sentence.         See 42
Pa.C.S.A. § 5505 (“[A] court upon notice to the parties may modify or
rescind any order within 30 days after its entry, notwithstanding the prior
termination of any term of court, if no appeal from such order has been
taken or allowed.”).     Accordingly, the imposition of the April 2, 2014
judgment of sentence was proper.



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J-S60022-14



judgment of sentence.4 Accordingly, because Appellant failed to appeal from

the April 2, 2014 judgment of sentence, we lack jurisdiction over this appeal.

       Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/17/2014




____________________________________________


4
  In his counseled brief, Appellant attempts to cure the jurisdictional defect
by purporting to appeal from the April 2, 2014, judgment of sentence. As
stated, however, the record does not contain any evidence that Appellant
appealed from the new judgment of sentence.



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