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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                     v.                  :
                                         :
AARON BRUNSON,                           :          No. 52 EDA 2017
                                         :
                          Appellant      :


             Appeal from the Judgment of Sentence, July 22, 2016,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0004492-2015


BEFORE: BENDER, P.J.E., OTT, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED APRIL 15, 2019

        Aaron Brunson appeals from the July 22, 2016 judgment of sentence

entered by the Court of Common Pleas of Philadelphia County following his

conviction of burglary, robbery, conspiracy       to   commit robbery, and

aggravated assault.1 After careful review, we remand with instructions.

        On May 20, 2016, a jury convicted appellant of the aforementioned

crimes.    The trial court sentenced appellant to an aggregate sentence of

25-50 years’ imprisonment. During the sentencing hearing, appellant’s trial

counsel, Joseph Santaguida, Esq., provided appellant with his post-sentence

rights as follows:

              You’ve now been sentenced by the [trial court] to
              25-50 years. You have 10 days from today to ask
              the judge to reconsider. You have 30 days from

1   18 Pa.C.S.A. §§ 3502(a), 3701(a), 903(a), and 2702(a), respectively.
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              today to take an appeal to the Superior Court, which
              we will do.

              If you can’t afford going to the appellate court,
              they’re going to appoint counsel for you.

Notes of testimony, 7/22/16 at 17-18.

        The following day, appellant filed a pro se post-sentence motion. The

trial court denied appellant’s post-sentence motion by operation of law

pursuant to Pa.R.Crim.P. 720 on November 21, 2016.            Appellant filed a

pro se notice of appeal on December 14, 2016. On January 13, 2017, the

trial court appointed Donald Bermudez, Esq., to represent appellant.

        On January 23, 2017, the trial court ordered appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant timely complied on February 13, 2017. On June 12, 2018, the trial

court filed an opinion pursuant to Pa.R.A.P. 1925(a).

        We must first determine whether appellant’s appeal is properly before

us. The Commonwealth contends that appellant’s appeal should be quashed

as untimely filed because appellant filed a pro se post-sentence motion

while he was still represented by counsel, thus rendering the post-sentence

motion to be a legal nullity. (Commonwealth’s brief at 13.) Therefore, the

Commonwealth argues that appellant’s notice of appeal was not timely filed.

(Id.)

        It is well settled that hybrid representation is not permitted in this

Commonwealth.         Commonwealth v. Williams, 151 A.3d 621, 623



                                      -2-
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(Pa.Super. 2016).         A pro se filing of post-sentence motions by a litigant

represented by counsel is considered a legal nullity.             Commonwealth v.

Nischan, 928 A.2d 349, 355 (Pa.Super. 2007), citing Commonwealth v.

Piscanio, 608 A.2d 1027, 1029 n.3 (Pa. 1992).

      Our cases have recognized an exception to the rule against hybrid

representation.      Indeed, this court recognized that in cases where a

defendant is effectively abandoned by his counsel and the trial court fails to

appoint new counsel in a timely manner, a defendant’s pro se filing while

still represented by counsel “does not offend considerations of hybrid

representation.”          Commonwealth v. Leatherby, 116                  A.3d 73, 79

(Pa.Super. 2015). In Leatherby, the defendant could no longer afford his

counsel’s services, and his counsel requested that the trial court appoint new

counsel.    Id.    During the sentencing hearing, however, counsel asked the

defendant     if    the     defendant   would     like   either        counsel   or     his

yet-to-be-appointed counsel to file a post-sentence motion on his behalf,

and the defendant answered in the affirmative.            Id.     The defendant also

indicated that he requested counsel and his yet-to-be-appointed counsel to

perfect the appeal and file a notice of appeal with the Superior Court. Id.

Finally, counsel made the following statement: “Just so [we] are clear.

Judge, with that on the record again, what I will do is perfect his

post-sentencing      appeal    before   Your    Honor    and    file    that   motion    in

Mr. Leatherby’s name. But again, I would ask the court-appointed attorney



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to handle that matter.” Id. (citations to the record and emphasis omitted).

Seven days later, the defendant filed a pro se post-sentence motion in order

to protect his rights. Id.

      The record reflects that Attorney Santaguida never filed a motion to

withdraw, nor did he make an oral motion to withdraw in open court in the

presence of appellant pursuant to Rule 120 of the Pennsylvania Rules of

Criminal Procedure.     See Pa.R.Crim.P. 120(A)(4); (B)(1)-(2).       Unlike in

Leatherby, Attorney Santaguida did not make a request on the record to

have newly court-appointed counsel file appellant’s post-sentence motion

and/or notice of appeal. We, therefore, remand for the trial court to hold an

evidentiary   hearing   to   determine   whether   Attorney   Santaguida    had

effectively abandoned appellant, thereby necessitating appellant’s filing of a

pro se post-sentence motion in order to preserve his appellant rights. The

trial court shall make a determination of record within 90 days of the filing of

this memorandum.

      Case remanded with instructions. Jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 4/15/19




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