J-S48003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    STEPHEN STEPHEN SMITH                      :
                                               :
                      Appellant                :   No. 168 MDA 2017

           Appeal from the Judgment of Sentence December 19, 2016
               In the Court of Common Pleas of Schuylkill County
             Criminal Division at No(s): CP-54-CR-0000996-2011


BEFORE:      OTT, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY OTT, J.:                                 FILED AUGUST 21, 2017

        Stephen Stephen Smith appeals from the judgment of sentence

imposed on December 19, 2016, in the Court of Common Pleas of Schuylkill

County. In this appeal, Smith presents the following claim: “Did the [t]rial

[c]ourt err and commit an abuse of discretion when it imposed an excessive

fine upon [Smith] with no indication as to whether [Smith] could pay that

fine[.]”    Smith’s Brief at 4.        Based on our review, we remand for an

evidentiary hearing concerning the timeliness of this appeal.

        On October 24, 2012, a jury found Smith guilty of ten drug charges.1

Thereafter, on December 7, 2012, Smith was sentenced to an aggregate
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  The charges included four counts of possession with intent to deliver
(PWID) controlled substances under 35 P.S. § 780-113(a)(30); four counts
(Footnote Continued Next Page)
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term of 8 to 16 years’ imprisonment, and to pay $40,000.00 in fines, which

included mandatory minimum sentences and fines pursuant to 18 Pa.C.S. §

7508(a)(2)(i) and (ii). On direct appeal, this Court affirmed the judgment of

sentence, and the Pennsylvania Supreme Court denied allowance of appeal.

See Commonwealth v. Smith, 87 A.3d 394 (Pa. Super. September 27,

2013) (unpublished memorandum), appeal denied, 87 A.3d 319 (Pa. March

5, 2014).

      While Smith’s direct appeal was proceeding, the United States

Supreme Court decided Alleyne v. United States, 133 S. Ct. 2151 (2013),

holding “Any fact that, by law, increases the penalty for a crime is an

‘element’ that must be submitted to the jury and found beyond a reasonable

doubt.” Id. at 2155. The following year, this Court held that Section 7508

is “unconstitutional in its entirety” in light of Alleyne. Commonwealth v.

Vargas, 108 A.3d 858, 876 (Pa. Super. 2014) (en banc), appeal denied,

121 A.3d 496 (Pa. 2015). See also Commonwealth v. Fennell, 105 A.3d

13   (Pa.   Super.     2014),     appeal    denied,   121   A.3d   494   (Pa.   2015);

Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014), appeal

denied, 124 A.3d 309 (Pa. 2015). Additionally, this Court has held that if a

defendant’s case was pending on direct appeal when Alleyne was handed
                       _______________________
(Footnote Continued)

of possession under 35 P.S. § 780-113(a)(16); one count of possession of a
small amount of marijuana under 35 P.S. § 780-113(a)(31); and one count
of possession of drug paraphernalia under 35 P.S. § 780-113(a)(32).




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down, that defendant is entitled to the benefit of the holding in Alleyne.

See Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en

banc), appeal denied, 121 A.3d 496 (Pa. 2015); see also Commonwealth

v. Ruiz, 131 A.3d 54 (Pa. Super. 2015).

        Subsequent to his direct appeal, Smith filed a timely PCRA2 petition

and obtained a hearing before the PCRA court.        Thereafter, on May 14,

2015, the PCRA court denied Smith’s petition but, based on Alleyne,

granted relief concerning the mandatory sentences at Count 1 and Count 2

that were imposed pursuant to Section 7508, and scheduled the matter for

resentencing. See Order, 5/14/2015, citing Fennel, supra, and Valentine,

supra. See also PCRA Court Opinion, 5/20/2015, at 7-8.

        On June 5, 2015, Smith appealed the denial of PCRA relief. This Court

affirmed and the Pennsylvania Supreme Court denied allowance of appeal.

Commonwealth v. Smith, 141 A.3d 592 (Pa. Super. 2016), appeal denied,

141 A.3d 480 (Pa. 2016). Thereafter, the trial court resentenced Smith on

December 19, 2016. Specifically, the trial court sentenced Smith to serve

an aggregate term of five to ten years’ imprisonment and to pay fines

totaling $40,000.00. This appeal followed.3


____________________________________________


2
    Post Conviction Relief Act, 42 Pa.C.S. §§ 9541–9546.
3
 On January 25, 2017, the trial court issued a Pa.R.A.P. 1925(b) order, and
Smith filed a pro se concise statement that was hand-dated February 14,
2017, and docketed on February 21, 2017. Smith’s counsel filed a concise
(Footnote Continued Next Page)


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      Preliminarily, we address two questions raised by the Commonwealth

concerning this Court’s jurisdiction.

      We first address the Commonwealth’s argument that this appeal must

be quashed as no notice of appeal was properly filed in this Court.             Here,

while represented by counsel, Smith filed a pro se notice of appeal.

However, the Commonwealth contends:

      “[T]here is no constitutional right to hybrid representation either
      at trial or on appeal.” Commonwealth v. Ellis, 534 Pa. 176,
      180 (1993). When a defendant is represented by counsel and he
      makes his own pro se filing with the court, that filing is a “legal
      nullity.” Commonwealth v. Ali, [10 A.3d 282, 292 (Pa. 2010)].

Commonwealth’s Brief at 4.

      The     Commonwealth           concedes     that   in   a     recent   decision,

Commonwealth v. Williams, 151 A.3d 621 (Pa. Super. 2016), a panel of

this Court held that this Court is required to docket and honor pro se notices

of appeal filed by represented criminal defendants.               See Commonwealth

Brief at 5.   Furthermore, the Commonwealth recognizes that one panel of

the Pennsylvania Superior Court cannot overturn a precedential decision of

another panel. See id. at 5, citing Commonwealth v. Beck, 78 A.3d 656,

659 (Pa. Super. 2013).4           As the Commonwealth is correct that we are

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(Footnote Continued)

statement on March 20, 2017, after the trial court granted counsel’s motion
for extension of time.
4
  The Commonwealth notes in its brief that it has raised the issue for
preservation purposes. See id. at 5 n.1.



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obliged to follow Williams, we reject the Commonwealth’s argument that

Smith’s pro se notice of appeal is not a proper notice of appeal.

        We next address the Commonwealth’s contention that the instant

appeal should be quashed as untimely. The Commonwealth points out that

Smith’s 30-day appeal period5 from the sentence imposed on December 19,

2016, expired on January 18, 2017, and that Smith’s pro se notice of appeal

was not filed until January 25, 2017, seven days after the expiration of the

appeal period.     Smith, however, takes the position that he placed his notice

of appeal in the prison mailbox system on January 17, 2017, and is entitled

to use January 17, 2017 as the date of filing pursuant to the “prisoner

mailbox rule.”

        Under the “prisoner mailbox rule,” a pro se prisoner’s document is

deemed filed on the date he delivers it to prison authorities for mailing.

Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997). See also

Commonwealth v. Cooper, 710 A.2d 76, 78 (Pa. Super. 1998) (“[F]or

prisoners proceeding pro se, a notice is deemed filed as of the date it is

deposited in the prison mail system.”). The Commonwealth maintains that

“a represented litigant is not entitled to rely on the prisoner’s mailbox rule.”

Commonwealth’s Brief at 6. We disagree. Rather, we conclude that because


____________________________________________



5
    See Pa.R.A.P. 903(a).




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this Court will accept and docket a represented defendant’s pro se notice of

appeal, Williams, supra, Smith is entitled to the benefit of the “prisoner

mailbox rule” for his notice of appeal.

      Our inquiry regarding the timeliness of this appeal, however, does not

end here. The Commonwealth further asserts that

      [t]he date on which [Smith] signed the certificate of service is
      not proof positive of the date in which he put the document into
      the prison mail. Should this Honorable Court be inclined to apply
      the prisoner’s mailbox rule to [Smith], despite his being
      represented by counsel, remand for an evidentiary hearing
      would be appropriate for [Smith] to offer documentary proof of
      the date which he mailed the document.

Commonwealth’s Brief at 7 n.2, citing Cooper, supra, at 79.

      Here, because Smith’s pro se notice of appeal from his December 19,

2016, judgment of sentence was filed in the trial court on January 25, 2017,

outside the 30-day appeal period, this Court directed Smith to show cause

why the appeal should not be dismissed as untimely filed. See Per Curiam

Order, 5/19/2017.      Smith’s counsel answered the show cause order,

claiming that the appeal was timely under the “prisoner mailbox rule”

because Smith’s pro se notice of appeal and accompanying pro se “affidavit

of certificate of service,” stating that Smith placed his notice of appeal in the

hands of prison authorities, were both dated January 17, 2017. This Court

discharged the show cause order on June 5, 2017, and the issue was

referred to the merits panel. See Order, 6/5/2017.




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         Pennsylvania Rule of Appellate Procedure 121 provides, in relevant

part:

        A pro se filing submitted by a prisoner incarcerated in a
        correctional facility is deemed filed as of the date it is delivered
        to the prison authorities for purposes of mailing or placed in the
        institutional mailbox, as evidenced by a properly executed
        prisoner cash slip or other reasonably verifiable evidence of the
        date that the prisoner deposited the pro se filing with the prison
        authorities.

Pa.R.A.P. 121(a).     A prisoner bears the burden of proving delivery of the

notice to prison authorities within the prescribed time period for its filing.

See Jones, supra, 700 A.2d at 426.           Reasonable verifiable evidence for

proving timely delivery includes, but is not limited to, a Postal Form 3817

certificate of mailing or a prison “cash slip” noting a prisoner account

deduction and the date of mailing.        Id.   The court may also consider a

prisoner’s affidavit attesting to the date of deposit, as well as evidence

regarding the operating procedures of the mail delivery service in question.

Id.

        “Where … the facts concerning the timeliness [of the filing] are in

dispute, a remand for an evidentiary hearing may be warranted.” Id. at 426

n.3. “Where, however, the opposing party does not challenge the timeliness

of the appeal and the prisoner’s assertion of timeliness is plausible, we may

find the appeal timely without remand.”         Cooper, supra, 710 A.2d at 79

(citation omitted). See also Commonwealth v. Patterson, 931 A.2d 710,

714 (Pa. Super. 2007) (deeming appeal timely based on the date on the



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notice of appeal and date of receipt three days after the thirty-day period

expired).

      In the present case, the certified record does not contain the envelope

in which the notice of appeal was mailed, nor a prisoner cash slip. The date

of filing, January 25, 2017, is one week beyond the last day of the appeal

period – January 18, 2017. Nonetheless, based on the hand-written date of

“1/17/2017” on Smith’s notice of appeal and “affidavit of certificate of

service,” it is possible that Smith placed the pro se documents in the hands

of prison officials on or before January 18, 2017.

      Here, the Commonwealth has challenged the timeliness of Smith’s

notice of appeal and on the record before us there exists a factual question

as to whether the notice of appeal was timely filed pursuant to the “prisoner

mailbox rule.” Accordingly, we remand this case to the trial court to hold an

evidentiary hearing to determine whether Smith delivered his pro se notice

of appeal to prison authorities within 30 days of the date of his sentence,

i.e., whether, applying the “prisoner mailbox rule,” Smith’s appeal was

timely filed on or before January 18, 2017, and to file a supplemental

opinion within 30 days of the date of the filing of this memorandum.

      Case remanded for proceedings consistent with this memorandum.

Panel jurisdiction retained.

      Stabile, J., joins the memorandum.

      Platt, J., concurs in the result.




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