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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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 OCTOBER 21, 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 affirm.

        The following factual and procedural history can be gleaned from the

record: On February 27, 2015, appellant and three other men broke into a

tattoo parlor owned by Kasheef Murray. Appellant and his cohorts robbed

Murray and his friend, Isaiah Brown, of their gambling winnings from

SugarHouse Casino, as well as other personal belongings. Murray and Brown

were also stripped of their clothing. During the course of the robbery, Murray




1   18 Pa.C.S.A. §§ 3502(a), 3701(a), 903(a), and 2702(a), respectively.
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sustained a gunshot wound to the hip. He was transported to Temple Hospital

for treatment.

      While he was at Temple Hospital, Murray provided Philadelphia Police

Officer Patrick Heron with an account of the robbery.         He subsequently

provided an account to a Philadelphia Police detective and testified about the

robbery before a grand jury. At trial, however, Murray provided testimony

that materially contradicted his statements to the police and his grand jury

testimony.     The Commonwealth introduced Murray’s prior inconsistent

statement through Officer Heron’s testimony and subsequently confronted

Murray with his signed interview with the detective and with a transcript of his

grand jury testimony.

      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 on July 22, 2016. The following day, appellant

filed a pro se post-sentence motion, despite being represented by counsel.

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 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).



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      Before we address the issue appellant raises on appeal, 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 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

(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.3d 1027, 1029 n.3 (Pa. 1992).

      This court has recognized an exception to the rule against hybrid

representation. 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



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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 this 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 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.

      Here,    the   record      reflects    that   appellant’s   trial   counsel,

Joseph Santaguida, Esq., 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 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 remanded

this case 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 appellate rights.




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      The trial court held a hearing and determined that Attorney Santaguida

had effectively abandoned appellant, which necessitated appellant’s pro se

filing of his post-sentence motion in order to preserve his appellate rights.

Accordingly, we find that appellant’s filing of a pro se post-sentence motion

does not offend considerations of hybrid representation, and we will address

appellant’s issue on appeal on its merits. Appellant is represented by counsel

on appeal.

      Appellant raises the following issue for our review:

             Did the trial court err, requiring a new trial, in
             admitting Office[r] Patrick Heron’s version of
             Kasheef Murray’s statement from his hospital bed as
             a prior inconsistent statement as substantive evidence
             when Kasheef Murray had not yet testified?

Appellant’s brief at 2.

      Appellant contends that the trial court erred when it permitted

Officer Heron to testify as to Murray’s prior inconsistent statement when

Murray had not yet testified. (Appellant’s brief at 7-9.) Therefore, there was

no inconsistent statement at the time of Officer Heron’s testimony. (Id.) The

Commonwealth argues that appellant has waived this issue on appeal because

he consented to allowing Officer Heron’s testimony out of order, knowing the

substance of the officer’s testimony. (Commonwealth’s brief at 17.)

      In cases where a party acquiesces to a trial court’s ruling, any challenge

relating to that ruling is waived on appeal. Commonwealth v. Hewlett, 189

A.3d 1004, 1010 (Pa.Super. 2018), appeal denied, 197 A.3d 1176 (Pa.



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2018). In Hewlett, the defendant objected to the admission of a spectator’s

cell phone into evidence.    Id.   At the trial court’s request, the defendant

agreed to have the evidence admitted and provided the trial court with a

curative jury instruction, which the trial court adopted.      Id.    See also

In re Lokuta, 11 A.3d 427, 445 (Pa. 2011), citing Commonwealth v.

Frazier, 359 A.2d 390, 391-392 (Pa. 1976) (Roberts, J., concurring) (holding

that a party waives an issue on appeal when the matter is not pursued “at

least enough to obtain a ruling” from the trial court).

      Here, appellant’s sole issue concerns the order in which Officer Heron

testified as to Murray’s prior inconsistent statement, which Murray provided

to Officer Heron at Temple Hospital, and Officer Heron’s testimony was

provided before Murray testified inconsistently.      The record reflects that

appellant acquiesced to Officer Heron’s testimony being given out of order:

            [THE COMMONWEALTH]: I am going to call
            Officer Heron. He’s going to testify before Mr. Murray.

            ....

            [THE COMMONWEALTH]: Mr. Murray is going to go
            south, so I am asking to have the officer do the prior
            inconsistent statement version of what was told to him
            at the hospital. At this point, it would not be --

            THE COURT: Is there any objection to taking them
            out of order?

            MR. SANTAGUIDA: No.

            THE COURT: All right.




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           [THE COMMONWEALTH]: Thank you, Your Honor. I
           appreciate it.

Notes of testimony, 5/17/16 at 48.    Accordingly, due to his acquiescence,

appellant has waived any challenge to Officer Heron’s testimony regarding

Murray’s statement at Temple Hospital. Hewlett, 189 A.3d at 1010.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 10/21/19




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