Com. v. Smith, K.
2265 MDA 2015
| Pa. Super. Ct. | Oct 20, 2016Background
- Appellant Kevin Eugene Smith filed a pro se notice of appeal after the PCRA court denied his second PCRA petition as untimely on November 25, 2015; the pro se notice was lodged December 24, 2015 while counsel remained of record.
- Counsel had not filed a notice of appeal; the Superior Court ordered counsel to enter an appearance and file a brief.
- The Commonwealth argued the appeal should be quashed because a represented defendant’s pro se notice of appeal is a legal nullity and must be ignored.
- Pennsylvania Rule of Criminal Procedure 576 requires that when a represented defendant files a document pro se, the clerk accept and forward a copy to counsel within 10 days; the Comment says forwarding provides a record but does not trigger deadlines or responses.
- The panel considered Pennsylvania Supreme Court precedent in Commonwealth v. Cooper, which rejected a bright-line rule that a pro se notice by a represented defendant is automatically a nullity and held a premature pro se notice could be perfected by later counseled action.
- The concurring memorandum (Bowes, J.) concluded the pro se notice should be treated as valid here to avoid unfairness, delay, and potential ineffective-assistance claims for failure to file a requested appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a pro se notice of appeal filed by a represented defendant is a legal nullity | Commonwealth: pro se notice filed while counsel of record renders the filing null and appeal must be quashed | Smith: pro se filing demonstrates intent to appeal and should be treated as initiating appellate review | Court declined bright-line nullity rule; treated pro se notice as valid/perfectible under Cooper principles |
| Whether Pa.R.Crim.P. 576 requires treating pro se notice as ineffective if not forwarded to counsel | Commonwealth: Rule and hybrid-representation concerns support deeming pro se filing ineffective | Smith: Rule’s forwarding requirement is procedural; the notice itself shows intent and forwarding failure shouldn’t defeat appeal | Court: Rule should be followed, but failure to forward does not automatically render the notice a nullity; fairness and practicality support treating notice as valid |
| Whether hybrid-representation concerns bar accepting a pro se notice of appeal | Commonwealth: hybrid representation risks (conflict, multiple briefs) justify strict treatment | Smith: a notice of appeal is ministerial, raises minimal hybrid-representation risks | Court: hybrid concerns are minimal for a non-substantive notice; Cooper framework addresses timing/perfection issues |
| Remedy when pro se notice is filed but counsel remains of record and takes no action | Commonwealth: quash appeal and require counsel-filed notice or dismissal | Smith: accept pro se notice as initiating appeal to avoid ineffective-assistance claims and delay | Court (concurring view): accept pro se notice as valid to secure fairness and avoid further litigation; Rule compliance still required going forward |
Key Cases Cited
- Commonwealth v. Cooper, 27 A.3d 994 (Pa. 2011) (rejects bright-line rule that a represented defendant's pro se notice is a nullity; premature pro se notice can be perfected by counsel)
- Roe v. Flores-Ortega, 528 U.S. 470 (2000) (failure to file a requested appeal can constitute ineffective assistance per se)
- Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011) (discusses policy rationales underlying prohibition on hybrid representation)