*1 2009); see also id. at 6 has no to (“[Appellant] standing decision.”). In so holding, opinion Court’s that, was read as evidently suggesting only Appellant not was without to the relief standing pursue sought by excep- her i.e., the reversal of the partial orphan’s court’s order tions— regarding the creation of the irrevocable trust for assets of estate, her daughter’s only was matter dispute she also lacked standing any contest —but aspect of that ruling, including court’s decision to appoint Miller, a limited for her guardian daughter’s estate. In re Cf. (2010) curiam) (“Does A.2d (per parent a minor child under the age of fourteen have standing challenge appointment of a guardian of that child’s estate made to a pursuant petition Pennsyl- filed under 12.5?”). vania Orphans’ Court Rule Therefore, Appellant’s standing contest the appointment of a limited guardian daughter’s her estate interjected all, into this if at Court’s somewhat imprecise thus holding, necessitating the present remand. See Majority at 27 A.3d at Opinion 993. joins
Chief Justice
Concurring
CASTILLE
Opinion.
v. COOPER, Kenny Brown, Appellee. Michael Alias
Supreme Pennsylvania. Court of
Argued May 2010. Sept.
Decided 2011. *2 Gerbron, Jr., Burns, Jr., J. Charles Hugh J. Ronald Eisen- berg, Office, Philadelphia, Philadelphia District Attorney’s Commonwealth of Pennsylvania. *3 Baker,
Karl Defender Association of Philadelphia, Philadel- Heilman, phia, Jill for Michael Cooper. CASTILLE, C.J., SAYLOR, EAKIN, BAER,
BEFORE: TODD, McCAFFERY, JJ. THE
OPINION OF COURT Chief Justice CASTILLE.
We consider the effect of a pro se notice of forward- defendant, to ed criminal counseled counsel, notice, where who was not made aware of the pro se subsequently files a timely post-sentence motion which is court, second, denied the trial and then a notice of timely case, In this Superior Court administratively quashed counseled as and then duplicative, quashed void, appellee’s pro and also premature yet remanded the case to the trial court for additional review of appellee’s For post-sentence motion. the reasons follow, that we vacate and remand to Superior Court for consideration of the merits of from the appellee’s appeal judgment of sentence. trial, the Honorable 2004, a bench following May
On assault aggravated of appellee guilty Means found A. Rayford and assault, drug paraphernalia, of simple possession and 21, 2004, Judge July crime. On instrument of of an possession of imprisonment to a term of appellee sentenced Means 11/6 on the months, years probation five to be followed for the no further penalty with assault conviction aggravated additional offenses. Judge before Means 2008, appellee appeared March
On of probation counsel1 for a violation court-appointed with failure to (“VOP”) violations included hearing. alleged his failure probation, regulations with the rules comply sanctions, with mental noncompliance with economic comply to his as- report failure requirements, health treatment officer, 2007 arrest for possessing and a signed probation crime, assault. At simple terroristic threats and instrument of officer, probation from hearing, the court heard Judge Means attorney. and an assistant district his counsel of his probation to be in technical violation appellee found to a term of appellee Means then sentenced Judge revoked it. him he and informed eight years of four to imprisonment 30 days modification of his sentence and days had ten to seek to appeal. se notice filed a Monday, appellee March
On Court, as 1055 docketed that court to the 2, 2008, Means issued an order Judge EDA April 2008.2 On 1925(b), to file a requiring appellee to Pa.R.A.P. pursuant the court appeal; of matters of on complained statement order, April but not his counsel.3 On appellee served with *4 2000, proceedings appellee represented in trial court April was 1. Since Philadelphia. the Defender Association appeal, though with the notice of Appellee did not serve his counsel 2. Attorney’s There is no indication that the District Office. he did serve copy appeal to defense counsel sent a of the notice of the clerk of courts 576(A)(4) (in any in which a case in accordance with Pa.R.Crim.P. attorney, submits for represented if the defendant defendant attorney, signed by the clerk filing not been a document that has counsel). filing copy accept forward a to shall it for 2008, 31, appeal pro notice of filed on March 3. In addition to the 11, 2008, including a pro filings April on appellant made other 7, 2008, counsel, appellee’s unaware of apparently pro it, notice and the response court’s to filed a timely post- sentence motion challenging appellee’s VOP sentence. The motion, merits, trial 10, court denied the on the April on 2008. 18, 2008, On April appellee’s counsel filed a timely notice of sentence, from the judgment of which was in docketed the Superior Court at 1230 EDA 2008.4 12, 2008, 1925(a)
On June Judge Means issued a Rule in opinion, which he concluded that the VOP sentence he on imposed appellee However, was legal proper.5 on July 16, 2008, Judge Means purported grant sentencing recon- sideration, sentence, vacate appellee’s VOP and impose a 11)6 reduced new sentence of to 23 months in prison, to be followed 6by years of probation. Insofar as the record reflects, Judge Means acted sponte, sua since there is no request filing docket, or other reflected in the July and the оrder does not address the occasion for purported reduc- tion, or the court’s authority act in the face of the pending appeal.
The appeal currently before this Court derives from appel- lee’s se notice of docketed at 1055 EDA on because June 2008 the Superior Court administratively dismissed as “duplicative” the filed by counsel at 1230 EDA 2008. Appellee did not challenge determination. "Request document entitled Leave to File Pro Se Concise Statement of Complained Matter Appeal,” requests of on and a set of for admission Means, Judge apparently response addressed to Judge Means’s 1925(b) order. These were not served on defense counsel 29, 2008, Baker, Eventually, April
either. Esquire, Karl Association, formally Defender appearance did enter his in the se- aled There is no indication that the Defender moved to withdraw the se notice of appeals. or to consolidate the two Despite 4. of two notices to the Court and Judge April denying Means’s post- 2008 order motion, sentence “hearing trial court docket that a reflects notice” was issued on June 2008. It is not clear from the docket whether held, any hearing pertained or already- whether the notice to the denied motion. Judge 1925(b) only 5. Means addressed the claims raised in the Rule Judge statement counsel. Means did not address the 1925(b) filings by appellee response to the Rule order.
442 a issued
Then, panel a May at 1055 EDA 2008 the opinion quashing memorandum Notwithstanding quashal, the “nullity.” a premature as trial court for the case to the also remanded the memorandum counseled post-sentence merits of a on the hearing motion. quashal mandate of both this combined
In implementing remand, Mincavage, v. the relied on Commonwealth panel se notice appellee’s pro to hold that (Pa.Super.2008), A.2d timely, subsequent the premature was rendered motion, therefore the post-sentence counseled the jurisdiction retained over a and the trial court nullity, Moreover, rejected the the Com- panel motion. post-sentence any sentencing claim that had waived appellee monwealth’s motion before to file a by failing post-sentence complaint later that the trial court had noting taking his that The noted timely panel a motion from counsel. received where defense counsel has no especially” the “rationale applies trial clerk fails to and the court knowledge filing to counsel as time-stamped copy forward 576(A)(4). required by Pa.R.Crim.P. of this is to purpose procedure
The that panel explained instance, court, any to correct error the trial in the first allow a new trial or modifica- judgment, that warrant arrest of may that the as- panel procedure of sentence. The added tion here, where, defendant importance sumes particular claim, which cannot be raised discretionary sentencing raises a Thus, both panel time for the first on direct court with a and remanded to the trial quashed to address the merits of hearing directive to hold a recognized The that panel motion. post-sentence motion, post-sentence already Means had denied Judge 1925(a) the sentence opinion supporting and written a Rule Nevertheless, nothing that there was panel felt imposed. Judge that Means had considered opinion in the indicate since hearing, motion on its merits or held The panel three after it was filed.” “just days he denied it in his erroneously Means had stated Judge also noted that had been convicted of assault opinion appellee aggravated 27, 2008, on March actually which was the date the VOP sentence was imposed. panel concluded that this error *6 was further basis for its mandate.
The Commonwealth filed a petition for allowance of Court, to this which we granted, the issue phrasing before us as follows:
Are the Superior holdings Court’s Commonwealth v. 945 Mincavage, (Pa.Super.2008), A.2d 233 and in the pres- case, ent in direct conflict with the Rules of Criminal Prоcedure, Procedure and Appellate Rules of specifically P. Pa.R.Crim. 720 and 721 and Pa.R.A.P. 1701 and 3304? This issue presents a of law pure question regarding the interplay between the Superior Court’s decisions and the rules; criminal therefore, and appellate procedural our scope of review is plenary and standard is de novo. Diehl v. (I.A. Const.), 254, (2010) 230, W.C.A.B. 607 Pa. 5 A.3d 243 Assocs., (citing Lynnebrook & Woodbrook L.P. v. Bor. of Millersville, 108, 1261, (2008)); 600 Pa. 963 A.2d 1263 Com- Pharmaceutica, Inc., monwealth v. Janssen (2010). A.3d
The Commonwealth argues that the Superior Court’s deci- sions in Mincavage and this case conflict with the appellate and criminal rules. procedural According to the Common- wealth, here, both in Mincavage and the Superior Court held that a post-sentence motion filed after a defendant files a pro se notice of appeal renders notice of appeal premature. The Commonwealth invokes Pa.R.Crim.P. which provides, in relevant “If part: the defendant does not motion, timely file a post-sentence the defendant’s notice of shall be filed within days imposition of of sentence 720(A)(3). ...” Pa.R.Crim.P. The that argues Commonwealth this Rule does not contemplate provide or for the consider- ation of a post-sentence defendant’s motion after his own notice *7 sentence,7 includes to a challenges
governing Commonwealth Comment, identical, Explanatory corresponding an be notice of is to appeal the notes that Commonwealth’s timely post-sen- a if the defendant files premature deemed that, when read claims tence motion.8 Commonwealth make the rationale governing Rules 720 and 721 together, modify days has 10 to file a motion to Given that the Commonwealth 721(B)(1), might possible it is that the defendant sentence under 720(A)(3) by appeal the under Rule elect to file a notice of followed filing timely modify When a motion to sentence. Commonwealth's occurs, premature, appeal the defendant’s notice of is rendered this disposing entry order of the Commonwealth’s because the of the triggering modify then becomes the device for motion to sentence situation, appeal. In counsel for the defendant’s notice of 905(a) prob- addresses this should be aware that Pa.R.A.P. defendant history appeals of that were response In to an extensive lem. filing appeal, the quashed premature of the notice of because of the 905(a) legal a fiction was drafted to create last sentence of Pa.R.A.P. entry premature appeal as filed after the a notice of that treats appealable order. 720, cmt., (emphasis original). Pa.R.Crim.P. Miscellaneous challenge may provides that the "Commonwealth 7. Criminal Rulе 721 sentence, by filing appeal by filing modify an a motion to a sentence issue, by by filing modify followed preserved or a motion to sentence a 721(A)(1). appeal.” Pa.R.Crim.P. Explanatory 721 states: 8. The Comment to Rule clear: contemplate Rules that a whether the defen- party, Commonwealth, dant or the must decide between a filing motion, notice appeal post-sentence of or a and once that made, choice is the filing party cannot then elect to follow the path unchosen in addition to party the chosen one. Once a motion, files a post-sentence the Commonwealth it argues, cannot file a notice of until appeal the motion is resolved a law; final order or denied by operation conversely, a party filing a notice of cannot then file post-sentence a motion because the notice of appeal divests the trial court of over a post-sentence motion. See Pa.R.A.P. jurisdiction 1701(a) as otherwise (except prescribed, after an taken, may trial court no longer proceed further matter); 42 § 5505 (“Except Pa.C.S. as otherwise or provided law, prescribed by a court upon notice to the parties may or modify any rescind order within 30 days entry after its ... allowed.”). if no from such order has been taken or Further, the Commonwealth argues, Rules 720 and 721 pro- vide that a cannot be party option denied the a litigating post-sentence party motion file a opponent’s decision to days post-sentence Given that a defendant has 10 file motion 720(A)(1), possible might under Rule it is that the Commonwealth file (B)(2)(a)(ii) followed, paragraph notice of under occurs, timely post-sentence defendant’s motion. When this premature, Commonwealth's notice of is rendered because entry disposing it is the of the order of the defendant’s triggering motion that becomes device for the Commonwealth’s situation, notice of In this for the counsel Commonwealth 905(a) problem. should be aware that Pa.R.A.P. addresses this response history appeals quashed to an extensive which were *8 premature filing because of the of the notice of the last 905(a) sentence legal of Pa.R.A.P. was drafted to create a that fiction premature treats a entry notice of as filed after the of the appealable order. 721, cmt., Modify Pa.R.Crim.P. No Commonwealth Motion to Sentence (emphasis original). infra,
Filed we As discuss comments to that, Criminal Rules 720 and 721 indicate in certain situations ad- Rules, by premature appeal quashed. dressed those should not be See, 905(a) (notice e.g., Pa.R.A.P. of filed after the announcement entry appеalable of a determination but before the anof order shall be J.R., thereof); entry day treated as filed after such and on the K.H. v. (2003) (appeal denying post- 573 Pa. 826 A.2d from order interlocutory, judgment subsequently trial motions is but where is entered, order). premature appeal is treated as filed after final Commonwealth, Rules to the According notice of of appeal his own notice a to render party do not allow plainly motion. subsequent post-sentence a by filing invalid judice, to the case sub construct this Rules-based Applying a notice of appeal filed appellee notes that the Commonwealth while the a motion then, post-sentence filed subsequently, and Rules, with the In accordance nothing. filed Commonwealth post-sentence argues, appellee’s the Commonwealth already because had nullity appellee when filed motion was jurisdiction court of the trial appeal, divesting a notice of filed motion. The Commonwealth entertain a by highlighted acknowledges complication, se and appeal pro filed his notice of appellee that panel, Court that the circum- knowledge, argues but without his counsel’s jurisdic- what it views as a of question is immaterial to stance avers, the draw no Further, Rules tion. the Commonwealth filings. and counseled filings distinction between that Pa.R.A.P. 3304 acknowledges The Commonwealth by hybrid representation requiring designed prohibit is motions, plead or other of types briefs any pro petitions, not be docketed defendant shall ings represented to the defendant’s counsel but instead shall be forwarded that this Rule does not argues record.9 Commonwealth motion, petition, it is not a to a notice of because apply claims The Commonwealth type pleading. brief or other Among is obvious. the most that the basis for this distinction that, Chapter placement Appellate Rules under 9. We note its in the Court”), ("Business governs in the Supreme Rule 3304 However, hybrid disapproval representa- Supreme only. Ellis, v. all See Commonwealth tion is effective at levels. (1993) (criminal right hybrid defendant has no 626 A.2d courts). appellate trial or Criminal representation in either 576(A)(4) hybrid representation before the courts of common addresses docketed, filing but mandating that the be received pleas, any defendant "In case in which a then forwarded to counsel: filing attorney, a written represented if the defendant submits motion, notice, signed by the defen- that has not been or document filing” accept attorney, clerk of courts shall it for send dant's Superior Court’s attorneys in the case. The copy to the of record Procedures, be Operating direct that the Intеrnal likewise § Pa.Super. 65.24. to counsel. I.O.P. docketed and then forwarded *9 frequently Act, raised claims under the Post Conviction Relief § 42 Pa.C.S. 9541 et are claims that seq., counsel failed to file a requested notice of To a clerk require of court to determine in which a instances se notice of results from the abandonment of the defendant by counsel and which are or the duplicative hybrid result of representation would severely overburden trial court. The con- Commonwealth cludes that there nothing the Rules of or Criminal Appellate Procedure between distinguishing pro se and coun- thus, appeal; seled notices of appellee’s appeal should not have been quashed and remanded for further consideration of Instead, the later-filed post-sentence motion. Commonwealth argues, have Court should decid- merits, ed appellee’s pro on the if post- and as no sentence motion been had filed.
Appellee responds that the procedure outlined in this case in Mincavage is consistent with the Rules of Appellate and, therefore, and Criminal Procedure Court’s decision should be affirmed. He argues that Pa.R.A.P. 1701(b)(3) court, authorizes a trial after an appeal has been filed, to grant reconsideration of the subject order that is the if a motion is the trial cоurt within the limit applicable time and an order granting reconsideration is entered the trial court within permitted time period. occurs, Where this scenario according to appellee, timely order granting reconsideration renders notice of 1701(b)(3). inoperative. Pa.R.A.P. Appellee further claims (b)(3) that the comments to Rule 1701 explain that subsection is intended to cover the exact presented situation in this circumstances, case—under such the trial court is permitted grant reconsideration where reconsideration is sought during the applicable appeal and the Rule period eliminates the possibility power that the to grant reconsideration is foreclos- ed a speedy appeal.10 further
Appellee claims that he and his counsel complied 1701(b)(3) with the specific requirements Appellate Appellee’s argument point 10. on this does not account for the fact that reconsideration, grant the trial court here did not and indeed denied his 10, 2008, post-sentence April purporting grant motion on before his followed se notice of filed his appellee
when reconsidera- motion for timely counsel’s *10 According appel- to sentence. vacation of tion and jurisdiction 1701(b)(3), court retained lee, the trial under Rule motion his post-sentence because to reconsider his sentence of sentence days imposition 10 of was filed within claims, 720(A)(1).Further, appellee Rule by Criminal required within 30 for reconsideration denied the motion the trial court motion, time, at which days post-sentence of appellee’s further without need for perfected of se notice counsel. appellee action or his Rules 720 to Criminal interpret this Court Appellee urges 1701(b) because to Rule conjunction Appellate and 721 in with 1701(b) in context meaningless renders Rule do otherwise that, while the Commonwealth argues He appeals. of criminal of the timing govern that Rules 720 and is correct filing and the party, motions either filing following disposition post- of or of an in the absence motions, argument ignores sentence the Commonwealth’s 1701(b)(3), jurisdic- which provides of Rule plain language rule that the of a notice general tional to the exception jurisdiction. exception, the trial court of This divests claims, timely post- to decide a allows a trial court appellee simultaneously with or subse- sentence motion that is filed that Appellate notice of contends appeal. Appellee to a quent 1701(b)(3) in specific language in the absence of Rule controls contrary. Rules 720 721 to the Criminal and and decisions in this case Superior to the Court’s Turning court’s in- that the intermediate Mincavage, appellee argues is consistent with their of Rules 720 terpretation who files a which is that a defendant purpose, intended Rules reconsideration under right notice of retains a Appel- motion. timely-filed post-sentence upon 720 and 721 flows from the Court’s right lee claims that which is not of Rules understanding spirit 16, 2008, long had been July after the sentence reconsideration appealed to the Court. to impede reconsideration in the trial court requested whether by the defendant or the Commonwealth.
Appellee further claims that the
holdings
this case and
Mincavage
are consistent with
Appellate
provides
that a
filing by represented defendant in this
Court should not be docketed but rather
be
should
forwarded
record,
Ellis,
to counsel of
citing Commonwealth v.
(1993).
3304 and Ellis prohibit court from even accepting pro se filings by a represented defendant in the interest of promoting judicial economy the appellate courts. bases Appellee his argument on holding Ellis’s that a criminal defendant has no right hybrid representation in either the trial or the appel- Instead, late courts. a represented defendant who wishes to proceed pro se must demonstrate to the trial court that he is *11 his waiving right to counsel knowingly, intelligently and volun- tarily, and absent such a showing, counsel must continue to represent the defеndant through case, the of the disposition including appellate review. Appellee claims that a defendant’s se pro filings have no legal effect while the defendant is represented Thus, concludes, counsel. appellee pro his se notice of appeal should have no legal effect because it was filed by a represented defendant during ongoing representation and without the advice or result, assistance of Any counsel. other argues, he renders counsel useless compels and the defendant to proceed pro se when he had no intention of representing himself and never a colloquy had with the trial court on the waiver of his right counsel.
Appellee requests that this Court find pro that his se notice of appeal is without legal effect and that his counseled and timely post-sentence motion preserved his claims the involving discretionary of his aspects sentence. Finally, appellee ar- gues, because the trial court denied his counseled post-sen- 10, 2008, tence motion April on the counseled notice of appeal 18, 2008, filed on April which the quashed as duplicative, appeal should be the of record.11 Appellee’s regarding continuing validity 11. claim April of the argument is undermined his simultaneous that the we discrete points, mаke persuasive both
Although parties analysis party of either that the ultimate are not convinced for a combination quagmire, a procedural The case is correct. pro filed a appellee that the counseled reasons: the fact that the clerk of the fact immediately sentencing; after notice; the fact counsel of apprise appellee’s not courts did se actions both to responded that the trial court actions, not counsel copy and did counsel’s post-sentencing and fact that appellee’s filings; response on and after counsel, aware of the once made to with- did not seek entering appearance consolidated; the fact that the the appeals draw it or have ap- the counseled administratively dismissed Superior Court arguably had though appeals even peal “duplicative,” Mincavage fact of the consequences;12 the very different effect on this appeal; and its existing precedent, decision as purporting grant the trial court posed by the complication it was divest- unquestionably reconsideration after sentencing decision to both jurisdiction; and the Court’s ed of remand, thereby apparently and quash thoughts act its second upon the trial court to authorizing alrеady motion it had denied respecting complications, in its Shorn opinion. addressed sentenced; matter: was relatively appellee be a simple would reconsideration, thereby preserving timely sought his counsel denied; claims, timely counsel sentencing specific timely statement of timely filed a notice the trial court ad- *12 appeal; of on and complained matters in This is all that is sentencing opinion. the claim its dressed And, review in the Court. Superior for merits required the trial court should be Superior decision to remand to Court's event, any any appeal or other the record does not reflect affirmed. sponte April 18 challenge the Court's sua dismissal of the thus, appeal; final. that dismissal is assigned have Alternatively, prothonotary could 12. decision, second, timely, panel for and se, administratively hybrid notice dismissed Or, appeals have been consolidated. See Pa.R.A.P. 513 the two could order, (where appeal from the same there is more than one may they argued together). appellate that be court order
451 factors, notwithstanding complicating we believe that mer- its review the sentencing issue is what should have occurred Court; in the Superior and that this course in squares fact with the existing rules. Our follows. reasoning
First, See, the Rules are not e.g., shackles. Pa.R.Crim.P. (criminal 101 just rulеs are intended to for provide determina- tion of every proceeding, and should be construed to secure simplicity, fairness and elimination of delay); Pa.R.A.P. 104 (“In rule, all not provided cases courts appellate may their regulate practice any manner not inconsistent rules.”); (rules with these Pa.R.A.P. 105 liberally shall be just, construed to secure the speedy inexpensive determi- Thus, nation of matter every they to which are applicable). this Court did not require existing rule respecting hybrid representation in order to address the issue of concern.in Ellis; Rule, now, Commonwealth v. as it exists derives from the case.
Furthermore, both the Rules of Appellate Procedure and the Rules of Criminal Procedure expressly provide they shall be construed according principles of con- statutory (rules struction. See Pa.R.A.P. 107 of statutory construction “shall be applicable to the interpretation of these rules and all amendments hereto as if these rules were enactments of the 101(c) (“To General Assembly”); Pa.R.Crim.P. the extent practicable, these rules shall be construed accordance with construction.”). statutory rules of Pursuant to the Statu- Act, tory Construction a court’s role in proper interpreting a statute construing is to determine the intent of the 1921(a). § General 1 Assembly. Pa.C.S. when the Generally, language of а statute is clear and free from all ambiguity, court disregard should not letter of the statute in order to Diehl, 1921(b); § 1 pursue spirit. its Pa.C.S.
A.3d at 243 (citing Spahn Zoning Adjustment, v. Bd. (2009)). Pa. A.2d Neither the Common- wealth nor appellee argues ambigu- that the Rules at issue are ous; thus, we are guided by plain language. their
Viewed from this
we have
with the
perspective,
difficulty
in the
approach
Mincavage
Mincavage
case. The
de-
panel
*13
what it
to decide
jurisdiction
not have
that it did
termined
a counseled
by
appeal,
premature
to be a
deemed
file a post-
opportunity
his
had
lawyer
before
defendant
the commen-
cited
panel
motion
his behalf.
sentence
post-
of a
the effect
regarding
tary to Criminal
proposi-
for the
Commonwealth,
motion filed
sentence
was rendered
se notice of
the defendant’s
tion that
of a
subsequent filing
post-
premature
his own counsel’s
concluded that “this
Mincavage panel
motion. The
sentence
who filed the
of
vigor regardless
with
applies
equal
rationale
premature.
and quashed
motion”
post-sentence
by the Commonwealth
accurately
reasons
identified
For the
of the
language
here,
supported
is not
reading
this
instinct
Mincavage panel’s
that the
say
Rule. This is not to
30-
of that case—the
under the circumstances
was incorrect
run
the defen-
yеt begun
against
had not
clock
day appeal
timely,
on his
coun-
there had been no decision
dant because
But,
of the
plain language
motion.
post-sentence
seled
but instead to
single party,
not to the
of a
Rules relates
opposing
foreclose the
party
that one
cannot
principle
by filing
motion
simply
to file a
right
post-sentence
party’s
720(A)(2) (if defendant files
Pa.R.Crim.P.
snap appeal. See
motion,
shall be filed
notice
timely post-sentence
motion);
deciding
of order
Pa.R.Crim.P.
days
within 30
720(A)(4) (if
modify
motion to
timely
files
Commonwealth
sentence,
days
shall be filed within 30
defendant’s
motion).
order
disposing
difficulty
with
Court’s
separate
We have
apparent-
here. The
Mincavage
application
Mincavage
a material difference between
ly
recognize
did not
the trial court never
Mincavage,
facts of this case. In
and the
motions, believing that
post-sentence
the counseled
upon
ruled
the defendant’s earlier
jurisdiction by
it had been divested of
the undecided
panel
and the
indicated
prema-
been waived as a result of the
sentencing claims had
deemed
Mincavage panel
Whenever a general provision in a statute be in shall conflict statute, with a special provision the same or another construed, two shall be if possible, so that effect may be given to both. If the conflict between the two provisions is irreconcilable, special provisions shall prevail and shall be construed as exception an to the general provision, general unless the provision shall be enacted later and it shall be the manifest intention the General Assembly such general provision shall prevail. §
1 Pa.C.S. 1933. See Mechanical Contractors Ass’n East Commonwealth, ern Pennsylvania, Educ., Inc. v. Dep’t of (2007). 1262, 1272 Pa. 934 A.2d We first general consider the set forth in precept Appellate which provides: “Except prescribed as otherwise rules, by these after an is taken or review of a quasijudiciаl order is the trial or sought, govern- court other ment unit no may longer proceed further in the matter.” 1701(a). Pa.R.A.P. Rule 1701 then lists actions a trial course, recognize Of panel’s quash 13. we that the decision to may by remand judge’s have been influenced its awareness of the trial subsequently grant sponte signifi- intention to reconsideration sua cantly appellee's Irrespective reduce VOP sentence. of the intentions, below, explain panel’s Court's as we determination that "premature” appeal was also somehow void is If erroneous. represented by thoughts reconsideration the trial court’s second is a appellate resentencing, basis for relief and it should derive from the unexplained procedural merits of the and not the circum- stances. taken, only- once an is perform court is authorized here: applicable which could be one of subject (3) reconsideration of order Grant or if: petition, filed in (i) of the order is for reconsideration application the time unit within government court or other the trial law; and or provided prescribed (ii) reconsideration such granting an order expressly government court or other is filed in the trial order prior for the time these rules prescribed unit within the of a quasijudicial or for review petition of a notice of order, time аny or within shorter with to such respect order law for the of reconsid- granting or provided prescribed *15 eration. granting para- under this
A order reconsideration timely or any appeal such notice of inoperative shall render graph theretofore or of a order quasijudicial for review petition order. prior with respect thereafter filed or docketed file a any may prae- shall and petitioning party party The court in which such prothonotary any with the of cipe is filed or docketed and inoperative petition notice or notice or shall note on the docket such prothonotary timely been under this rule. Where petition has stricken paragraph, entered under this order of reconsideration is or for review appeal petition the time for a notice of filing of the decision on entry to run anew after the begins reconsideration, whether or not that decision amounts to of the trial court or prior reaffirmation of the determination required unit. No additional fees shall be government other or for petition of the new notice of filing for review. added). 1701(b)(3) (emphasis
Pa.R.A.P. that the of a notice general This to the rule exception jurisdiction renders a notice divests the trial court of of timely if a motion for reconsideration only of ineffective dovetails with Crimi- exсeption both filed and The granted. is 721, that no direct both of indicate nal Rules and appeal may timely while a motion or proceed motion to sentence is modify pending, any such 720, cmt., rendered premature. Timing; See Pa.R.Crim.P. 721, cmt., No Modify Pa.R.Crim.P. Commonwealth Motion to Thus, in an appropriate Sentence Filed. case where a post- granted, sentence motion is there is no conflict between Rule 1701, governing appeals generally, and Rules 720 and which specifically govern in criminal Howev- appeals matters. er, the clearly rules do not govern facts this case for two First, reasons. the trial court denied the timely post-sentence 7, 2008; 1701(b)(3) thus, motion filed counsel on April was never triggered and could not have affected the trial authority Second, court’s to rule on that motion.14 the Rules do not distinguish between filings by defendants who are se, acting pro filings by counsel.
The answer is in Appellate not Rule 1701 and Criminal Rules 720 and but in proper of understanding jurisdictional effects of involving cases issues hybrid representation. proper analysis our implicates Ellis, 576(A)(4), decision in Criminal Rule Appellate Rule 3304, as well as rules and caselaw the effect regarding See, 905(a); prematurely filed appeals. e.g., Pa.R.A.P. K.H. v. J.R., (2003). 826 A.2d
Here, the counseled appellee Thursday, was sentenced on 27, 2008, March and filed his appeal Monday, March 31, 2008. The clerk of courts the notice accepted *16 filing, entry and made in the trial court proof docket. The of service that appellee’s reflects counsel was not with served pro the se filing, although appellee served the Commonwealth worse, first class mail. To make matters the clerk of courts did apparently comply not with Rule Criminal 576(A)(4), requires of a made copy pro filing, defendant, to be in attorneys forwarded to Moreover, 1701(b)(3) Appellate 14. Rule did not authorize the trial court grant purported July to reconsideration when it to do so on 2008. 10, 2008, Appellee’s post-sentence April motion was denied on there court, any was no additional motion filed in trial further days any reconsideration was foreclosed after 30 event. See Pa. (b)(3)(i)-(ii). R.A.P. 1701 the trial when complicated further The matter was
case.15 1925(b) and the Common- appellee order on his judge served counsel.16 wealth, on appellee’s but not are notice to counsel respecting missteps procedural These appear- his to withdraw sought counsel never unexplained: post-sentence to ance, pursue or refused appellee, abandoned Pa.R.Crim.P. behalf. See or an on motions 120(B)(1)(counsel appearance not withdraw may defendant for (when 122(B)(1) coun- court); Pa.R.Crim.P. by leave except judgment, until final is effective appointment sel is appointed, fact, counsel appeal). on direct any including proceedings 7, 2008, and April motion on timely post-sentence And, upon the client’s per request.” it was filed “as averred on 2008—the April motion denial of under day appeal period thirty event” for the “triggering timely filed a notice Rule 720—counsel Criminal about the courts had notified counsel properly If the clerk of in accordance with Criminal appeal, se notice of thirty 576(A)(4), taken action within the counsel could have caused complication to eliminate the day period no Notably, it. there was withdrawing such as of appellee’s to the consideration impediment proper other in coun- preserved on the issue was sentencing appeal: claim motion; the mo- the trial court denied sel’s post-sentencing To tion; opinion. the issue in its and the trial court addressed 576(A)(4) require- "the Criminal Rule indicates that 15. The Comment to filings in stamp and make docket entries of the ment that the clerk time filing, not only provide a record of the and does these cases serves to any response.” trigger any require The dissent relies deadline nor legal filing regarding import of the as further this disclaimer but, case, nullity, clerk’s failure to support viеwing it as a in this filing comply that the be forwarded with the Rule's mandate perceives position. The dissent our view of undermines that counsel duty overburdening with a requirement as the trial court the Rule’s Dissenting Op. significance,” for after-the-fact "scrutinize such minimally provides instead a burdensome at 27 A.3d at but it safeguard prevent very confusion that arose here its breach. 1925(b) response pro se order in to the 16. The trial court issued its undermining view that the appeal, further the dissent's notice of void, easily discern unconditionally that the trial court could hybrid nature at that time. its *17 worse, merits, make matters instead of reaching Court the counseled administratively quashed appeal as of the “duplicative” pro appeal, ultimately se and deter- fact, mined that se pro appeal nullity. was a duplicative; counseled was not because at all appellee counseled, se, times was and the first was filed pro was a one.17 proper Appellee’s pro se notice of was premature, indeed own, the sense that he it on his while still ostensibly counsel, represented by before appointed his counsel had to file a opportunity post-sentence motion on his behalf. The notice of appeal also was ill-advised: the unschooled did not appellee realize that he had рreserve sentencing Moreover, claims post-sentence motion. it was a complicating pro filing by a defendant with appointed record, counsel of and instigated procedural problems various that are hybrid endemic to representation, and because of Ellis, which such representation is not permitted. See supra. But the prescribed procedure, designed to the confusing avoid defendants, result of pro filings by represented criminal was not followed.18 case,
Under the circumstances of where the trial court
ruled on the
post-sentence motion and thus entered
order,
a final appealable
we view the pro
appeal merely
as
premature,
duplicative
later counseled
appeal,
subject
But,
to withdrawal or quashal
grounds.
on those
determination,
to the
contrary
panel’s
it defi-
nitely was not a “nullity,” especially once the counseled appeal
was dismissed. The proper way to view the
dismissed,
after the counseled
premature
reject
argument,
17. We
language
the Commonwealth’s
based on
hybrid representation
Pa.R.A.P.
that the restrictions on
do not
apply
appeal. Appellate
applies
se notices of
Rule 3304
only.
actually
in this Court
The relevant
rule in this instance is
576(A)(4),
expressly applies
Pa.R.Crim.P.
to a "notice” filed
se in the trial court
a counseled defendant.
opera-
18. The dissent views these errors as a breakdown in the court’s
might
appeal, Dissenting
Op.
tions
have warranted a nunc
tunc
*18
consid-
proper
the trial court’s
upon
that was perfected
appeal
motions.19
of the counseled
eration and denial
the merits of
have decided
Court should
2008)
(1055
after it
it
EDA
remained before
appeal
dismissed,
subsequently-
grounds,
mere administrative
on
2008).
(1230 EDA
To the extent
filed,
appeal
otherwise, it is disapproved.
directs
Mincavage
overall treatment
with this Court’s
squares
This result
Rule
Although Criminal
merely premature.
that are
appeals
facts,
to these
apply
precise
not expressly
720 does
of the common
recognition
reflect the
Comments
Explanatory
1012,
465-66,
parties have not made such an
at
but the
at
argument.
27 A.3d
pro
that the
se notice of
with our conclusion
19. The dissent takes issue
premature
automatically
legal nullity
rather a
appeal
but
was not
v.
in
with Commonwealth
filing, opining that this conclusion is
conflict
Piscanio,
Piscanio,
(1992).
represented
530 Pa.
608 A.2d
pro
appeal
denial of bail. While
filed a
notice of
from the
defendant
the
pending,
tried and
appeal
was
the defendant was
on the bail issue
question
charges relating
passing
checks. The
on
bad
convicted
proceed
court could
with trial on
the Court was whether the trial
before
appeal
filed
se notice of
of the bail
the merits after the defendant
his
that,
question, despite Rule 1701. The Court concluded
because
charges
appeal
from the
for which the
subject matter of the
was distinct
tried,
jurisdic-
trial court
Rule 1701 did not divest the
defendant was
tion.
distinguishable from this
Respectfully, we believe that Piscanio is
First,
legal nullity language
upon
relied
case for several reasons.
Piscanio,
part
holding
but rather confined
was not
the Dissent
to a footnote
granted
noting
never
leave to
that the defendant was
se; therefore,
appeal from the denial of
proceed pro
his
se notice of
Second,
legal nullity.
proceedings.in
the criminal
bail was deemed a
ongoing,
of the defendant's continued
were
and the fact
Piscanio
apparently
clear. This case involves a
representation
counsel
was
appeal
judgment
Given that our
notice of
from a final
of sentence.
right
recognized that a criminal defendant has a
to self-
cases have
Grazier,
representation
appeal,
v.
552 Pa.
see Commonwealth
Staton,
(1998);
v.
Pa.
12 A.3d
A.2d 81
but see Commonwealth
(2010)
recognize
(noting that federal constitution does not
such
277
right),
representation is not automatic.
the fact of counsel's continued
Finally,
particularly
of retained counsel.
This is
so
the case
(and
interlocutory
to the
the denial of bail is
collateral
from
trial),
judgment
is
at
while an
from a
of sentence
main issues
supports
unusual case
our determina-
not. The factual context of this
merely premature, rather than
here was
tion that
automatically
Ali,
reference to Commonwealth v.
void. The dissent's
(2010),
where the
was filed while
510, (2002) (it 810 A.2d appropriate is for court to consider explanatory comments in context of construing and rule). applying the
Here, appellee was sentenced snap and filed a se notice of appeal. Subsequently, his counsel filed a timely post- motion, denied, sentence which was then a timely and second notice merely The premature pro appeal did not the trial jurisdiction divest court of to act upon timely post-sentence motion later by appellee’s own counsel in 720(A). accordance with Criminal Rule Once the motion was decided, thirty day appeal clock was Pa. triggered. (“When 720, cmt., Timing timely R.Crim.P. a defendant files a motion, the post-sentence 30-day period for the defendant’s ... appеal by direct the trial triggered judge’s decision on motion”). circumstances, the post-sentence Under the where counseled proper, quashed administratively, have should Superior panel Court subsequently-assigned if had been filed after it the premature treated with Pa. motion in accordance post-sentence denial of the and ruled 905(a)(5). have considered should panel R.A.P. and Superior Court of the claims as briefed the merits upon motion, rejected (initially) in the preserved also 1925(b) court, statement filed in a preserved the trial the trial court in its discussed May counsel 1925(a) had Superior 2008. The Court dated June opinion merits, on its dispose it needed to everything matter to the trial returning and there was no basis court. reasons, that the Court we hold foregoing
For to the trial court remanding quashing erred appellee’s post-sentenc- consideration of for further re- vacate the order below and therefore ing motions. We of the merits of for consideration mand to the from the of sentence. judgment direct VOP relinquished. Jurisdiction in the participate MELVIN did not ORIE
Justice or decision of this case. consideration SAYLOR, join the EAKIN and McCAFFERY Justices opinion. *20 in which files a Justice dissenting opinion
Justice TODD joins. BAER TODD, dissenting.
Justice untangling majority cogent approach has offered a accept us. Were I able to quagmire before procedural “merely se was majority’s Appellee’s pro that premise 457, 1007, at I would at 27 A.3d premature,” Majority Opinion However, I analysis. with its resultant quarrel have little Rather, view, my in our caselaw premise. cannot accept that Appellee’s pro a conclusion support and rules procedural I find such a determination nullity, was a and legal se in most accord with our prohibition established on hybrid representation. reasons, Accordingly, for the following I re- spectfully dissent.
The majority concludes that Appellee’s pro se
appeal,
counsel,
while he was represented by
was “merely premature,”
that, while it
noting
“duplicative
later counseled
appeal,
subject
to withdrawal or
quashal
those
grounds,” it “definitely was not a ‘nullity’.” Majority Opinion
457,
at
Grounded in our prohibition against hybrid representation,
this Court has approved lower courts’ refusals to review
pleadings and briefs filed by counseled criminal litigants. See
Ellis,
176,
(1993)
Commonwealth v.
534 Pa.
(characterizing
Nischan,
bail);
v.
928
denying
Commonwealth
from order
nullity, having
“a
349,
(rejecting as
(Pa.Super.2007)
355
A.2d
se
appellant’s
effect” counseled
legal
no
Hall,
Piscanio);
v.
motion,
Commonwealth
citing Ellis
(1984)
390,
7,
(rejecting pro se
476 A.2d
9-10
Pa.Super.
327
corpus by
writ
habeas
counseled
denying
of order
case,
Indeed,
for the instance
particular import
appellant).
Piscanio,
rejected
this
supra,
in
an alternate
denying
bail. As
from
order
jurisdiction, we
the trial court’s continued
affirming
basis
“[bjecause
have no
that,-
se actions
Appellee’s pro
reasoned
to repre
while
counsel remains authorized
effect
defense
legal
Appellee’s pro
of the
aspects
proceedings,
him in all
sent
nullity
which would
denying
the order
bail was
appeal from
Piscanio,
from
trial.”1
instituting
not
the trial court
prevent
Hall,
3;
at 1029 n.
see also
Pa. at 298 n.
608 A.2d
(“An
no
effect
[appeal
legal
accused’s
has]
A.2d at 9-10
represent
counsel remains authorized to
while defense
Penn
aspects
proceedings.”);
in all
Standard
accused
(same). Herein,
majority’s
§
Practice
132:109
sylvania
legal significance Appel
conditional
lends
approach—which
this
fully
account for
lee’s
se notice of
—fails
and,
conflicts "withPiscanio.2
precedent
particular,
holding
reasoning
part
observing that
was somehow not
of our
1.
Piscanio,
Majority Opinion at 458 n.
Instead of hewing authority, a majority devises new type rules, not expressly our contemplated by one which is not interlocutory, yet but one which does not trigger jurisdictional Pa.R.A.P. 1701’s mandates.5 Pa. See 1701(a) R.A.P. (“Except as otherwise prescribed by these rules, after an appeal is taken or review of a quasijudicial order is the trial court sought, government or other unit may Although specify, presume filing 3. Rule 576 does not I may, recorded example, determining so that it be considered a relief, litigant's entitlement to nunc tunc as such a would be assessing relevant in a claim that the defendant intended for counsel to file an majority prothonotary’s 4. The that contends failure in the instant by forwarding case to rule follow this the notice of on to counsel Majority Opinion undermines this conclusion. See at 456 n. disagree. A.3d at 1006 n. 15. I While the rule was not followed herein, grant and while this failure would factor into of nunc tunc below, any given relief as I discuss failure to adhere to a rule in case interpretation procedural cannot drive this Court’s overall of our rules. that, majority rightly party *23 (failure challenge appellate motion waived post-sentence tо file sentence), it would not have been discretionary aspect of a interlocutory. the
However,
interlocutory,
was not
pro
appeal
while this
se
of Pa.R.A.P.
operation
not allow for the
majority does
is
jurisdiction
appeal
of
where an
the trial court
strips
filed,
“merely premature.”
to be
finding
appeal
instead
the
construct,
the trial
approves
this new
thus
majority, by
the
motions
jurisdiction
addressing
post-sentence
court’s
in
majority’s
I
find the
regard,
counsel.
In this
do not
to be
premature appeals
treatment of other
analogy to our
458-59,
Further, K.H., in unlike herein majority’s approach is one, a regular, predictable not but rather is based on multiple K.H., in contingencies: jurisdiction settled upon entry here, it judgment; pro jurisdiction- seems the has only al effect if a counseled also later appeal is filed and that subsequently Majority dismissed. See at Opinion (The 457-58, 27 A.3d at not appeal “definitely was a ‘nullity’, especially once the counseled was dismissed. The proper way to view the appeal, after the counseled dismissed, appeal was is as a premature that was perfected upon the trial court’s proper consideration and motions.”). denial of the view, In my this is an awkward approach jurisdiction. to matters affecting
Finally,
our
despite
prohibition on hybrid representation, by
lending conditional legal significance
to a
se notice of
view,
majority,
my
such
encourages
filings.
Indeed,
counsel,
despite representation by
a crimi-
why would
nal defendant not file a
hope
that a court
would latеr deem it worthwhile? The majority burdens lower
courts and parties to scrutinize such
after-the-fact
significance. This is the
type
prohibit-
confusion our rules
*24
ing hybrid
Jette,
representation are intended to prevent. See
(“The
Accordingly, thus, the nullity;8 only EDA 2008 was a at 1055 appeal at filed counsel subsequently extant was the one administratively dismissed 1230 EDA which was Therefore, “duplicative.”9 Court as notes, While, majority a criminal defendant has the granted. as the self-executing, requires right right self-representation, such a is not readily approval, be discernible on the relevant docket. court and would Indeed, counsel, require appointed our criminal rules in the case of counsel, appointment granted, retain leave to withdraw is his unless 122(B)(2) through any up appeal to this Court. See Pa.R.Crim.P. to and counsel, arguably ambig- Admittedly, are for retained our rules & cmt. (and clarifying) regard. Compare Pa.R.Crim.P. in this uous worth 120(A)(4) (counsel through representation "continue such must .direct withdraw”) granted Pa.R.Crim.P. leave to with or until 120(B)(1) (counsel except by "may appearance or her not withdraw his court”). majority's Regardless, unpersuaded by the I am leave of represented any determining a defendant is at implication that whether Indeed, particular relevance given matter. for time is an involved court, case, appellate in the trial not the a notice of is filed this court, case, thus, 905(a)(1); suggesting in this the review I am Pa.R.A.P. implicates only docket. one court appropriate rules committees I refer this matter to the 7. would further implementation approach. of this nullity, properly the trial court 8. As I would conclude this subsequently counsel. addressed the motions have, not, notes, did majority Appellee could but 9. As the *25 dismissal. review of the at 1055 EDA there Court’s jurisdictional to implement was no foundation for court its procedure remand under v. Mincavage, Commonwealth basis, I (Pa.Super.2008). A.2d On would vacate the of the Superior order Court. be an
Appellee would not without avenue for appellate relief, however. Were hereafter to seek Appellee leave to file (from nunc tunc in the trial court the order rejecting counsel), the post-sentence my motions filed view, case, under the extraordinary circumstances of this where there were procedural part errors on the of thе clerk of courts, court, the trial and the which thwarted ability counsel’s respond Appellee’s pro filing, it would proper be a exercise of grant discretion to such leave.10 See Stock, 13, 18-19, Commonwealth v. 679 A.2d 763- (1996) (discussing that “an nunc pro tunc is intended as a remedy right to vindicate the to an appeal where that right has been lost due to certain circum- extraordinary stances” such breakdown in the court’s operations). reasons,
For these I respectfully dissent. joins
Justice BAER this dissenting opinion. majority my misapprehends position regard. Majori- 10. The in this See ty Opinion proffer at 457 n. 27 A.3d at I 1007 n. 18. nunc tunc prospective possibility Appellee's appellate relief as a for resurrection of rights, simply which he would have available were this Court vacate propose. Court's order as I notes Commonwealth that the Minca- vage panel Explanatory relied on the to Rule 720.6 Comment But, argues, the Commonwealth the comment actually directs Explanatory provides: 6. Rule 720's Comment pro- language specifically plain result because its contrary a motion post-sentence that it is the Commonwealth’s vides premature; of appeal notice will render a defendant’s that can render the defendant not that contemplate comment does Mincavage, Commonwealth notice premature. his own the word “Commonwealth” claims, read the “Common- Rule 720 as if it said to Criminal the comment not defendant,” obviously reading wealth or the language. the comment’s supported contends that further The Commonwealth the Explanatory the rationale behind ignores decision Court’s forestall consideration Comment, is that a cannot party notice by filing snap motion post-sentence opponent’s motion before the time for adds that Criminal The Commonwealth expires.
Notes
5. The notes if one it the Commonwealth —be timely post- or the defendant —files notice of and then a party, sentence motion is filed the other Rule 720 and 721 of our appeal premature. Majority criminal rules render the notice of See 451-53, 1003-04; Opinion at 27 A.3d at & 721. Pa.R.Crim.P. 720 As however, majority emphasizes, further this feature of Rule 720 and application 721 has no herein. matter.”). Here, in the further longer proceed no undoubtedly as it was interlocutory, not notice of sentence. judgment of from a final order —the an appeal any legal if Thus, appeal, given under Pa.R.A.P. jurisdiction, the trial court effect, stripped would have entertaining post- trial court from thereby preventing Indeed, counsel. Appellee’s motion later filed sentence would there appeal, filed the first notice had counsel a counseled no about this. While question be presumably motion, certainly would to a appeal, prior see issues on any sentencing-based handicapped have Reeves, (Pa.Super.2001) 778 A.2d v. Commonwealth