J   -S25024-19
                                   2019 PA Super 236


    COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT
                                                               OF PENNSYLVANIA
                               Appellee

                         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: CP-38-CR-0002009-2016

BEFORE:     STABILE, J., MURRAY, J., and MUSMANNO, J.

CONCURRING AND DISSENTING OPINION BY STABILE, J.:

                                                             FILED AUGUST 05, 2019

        While I agree that the judgment of sentence should be affirmed for the

reasons stated by the Majority, I dissent from the Majority's analysis

pertaining to the hybrid representation issue.                     The    Majority correctly

acknowledges that "pro se documents that require merit 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." Majority Opinion, at 6

(citing Commonwealth v. Ali, 10 A.3d 282 (Pa. 2010); Commonwealth v.

Nischan, 928 A.2d 349 (Pa. Super. 2007)). Both Appellant and his counsel
filed Pa. R.A.P. 1925(b) statements.           Despite acknowledging that Appellant's

statement     should      be   deemed      a    legal   nullity,    the    Majority,   citing

Commonwealth v. Glacken, 32 A.3d 750                (Pa. Super. 2011), concludes        that
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"under the unique circumstances of this case" our appellate review                        is   not

impeded by hybrid representation where the filings were complementary

rather than competing. Majority Opinion, at 9. I find no support whatsoever

to examine and therefore excuse hybrid representation if the filings are

complementary rather than competing. I therefore disagree with any

suggestion      that this        is   an   appropriate test when          looking     at hybrid

representation issues.

        In Glacken, the appellant filed          a   pro se brief and his attorney filed none.

Although we recognized that the pro se brief did not present the problem of

competing filings usually associated with hybrid representation where                            a

represented party and his counsel both make filings, we nonetheless, quashed

Glacken's appeal. We held that given the clear language of Pa.R.A.P. 33041,

and our Supreme Court's holding in              Commonwealth v. Ellis, 626 A.2d 1137,
1141 (Pa. 1993), i.e., that an appellant must either allow his attorney to

represent him or request permission to proceed pro se, we were constrained

to quash the appeal for lack of             a   counseled brief.      It made   no difference

whether the pro se filing was competing or complementary with any filing by

counsel. In short, Glacken makes no exception for admitting                     a   pro se filing

where    a   party   is   represented by counsel.




1 Pa.R.A.P. provides "[w]here a litigant is represented by an attorney before
the Court and the litigant submits for filing a petition, motion, brief or any
other type of pleading in the matter, it shall not be docketed but forwarded to
counsel of record."

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      Instantly, the Majority needlessly engages      in a comparison of the   filings

made by Appellant and his counsel to conclude that these multiple filings do

not impede our appellate review, since they were complementary rather than

competing. Engaging in any such comparative analysis is error. As our case

law and Rule 3304 instruct, Appellant's pro se filing should have been

considered   a   legal nullity, not accepted for docketing, and returned to counsel.

There is no need to determine whether the filing complements or competes

with that of counsel.      I therefore respectfully dissent from that part of the

Majority's opinion addressing the hybrid representation question and, in

particular, to the extent it suggests any exception to existing authority that

hybrid representation is not permitted.




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