Com. v. Kiadee, H. ( 2019 )

J-S56039-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HUSSAIN KIADEE :
:
Appellant : No. 3186 EDA 2018
Appeal from the Judgment of Sentence Entered September 28, 2018
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0007557-2016
BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.
JUDGMENT ORDER BY NICHOLS, J.: FILED NOVEMBER 08, 2019
Appellant Hussain Kiadee appeals from the judgment of sentence
imposed following his jury trial convictions for first-degree murder and
possessing instruments of crime (PIC).1 Appellant challenges the legality of
his arrest, the voluntariness of his confession, and the admissibility of certain
hearsay statements. We quash the appeal as premature.
The relevant procedural history of this appeal is as follows. A jury
convicted Appellant of the aforementioned offenses on August 16, 2018. On
September 28, 2018, the trial court sentenced Appellant to life imprisonment
without parole for the first-degree murder conviction, plus a consecutive term
of one to two years’ imprisonment for PIC. Privately retained trial counsel
(trial counsel) timely filed a post-sentence motion on Appellant’s behalf on
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1 18 Pa.C.S. §§ 2502(a) and 907, respectively.
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October 2, 2018. That same day, trial counsel also filed a motion for leave to
withdraw.
On October 10, 2018, the trial court granted trial counsel’s motion to
withdraw and directed the public defender to determine whether Appellant
qualified for post-sentence representation within ten days. If the public
defender determined that Appellant did not qualify for its legal representation,
then the trial court directed that Appellant would be responsible for retaining
private counsel. Further, the trial court dismissed Appellant’s post-sentence
motion without prejudice, such that Appellant could re-file the motion after
newly retained counsel entered their appearance.
Subsequently, privately retained counsel (private counsel) entered their
appearance on October 23, 2018, and filed a supplemental post-sentence
motion on October 26, 2018. The public defender, however, was unaware
that Appellant had retained private counsel, and the public defender filed a
notice of appeal on October 26, 2018.
The trial court concluded that it lacked jurisdiction to entertain the
merits of the supplemental post-sentence motion, and it did not order
Appellant to file a Pa.R.A.P. 1925(b) statement. See Trial Ct. Op., 4/1/19, at
2-3. On April 1, 2019, the trial court filed an opinion asking this Court to
quash the appeal and remand the matter for further proceedings.
Preliminarily, we must evaluate whether we have jurisdiction over this
appeal. “[S]ince the question of appealability implicates the jurisdiction of
this Court, the issue may be raised by this Court sua sponte.”
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Commonwealth v. Horn, 172 A.3d 1133, 1135 (Pa. Super. 2017) (citation
and internal alterations omitted). “[T]he final, appealable order for a
defendant’s direct appeal in a criminal case is the judgment of sentence, not
the conviction.” Commonwealth v. Claffey, 80 A.3d 780, 782-83 (Pa.
Super. 2013) (citation omitted). If a defendant files a timely post-sentence
motion, then the notice of appeal must be filed within thirty days of the entry
of the order deciding the motion. Pa.R.Crim.P. 720(A)(2)(a). “No direct
appeal may be taken by a defendant while his or her post-sentence motion is
pending.” Pa.R.Crim.P. 720 cmt. (citation omitted).
Instantly, trial counsel filed a timely post-sentence motion, as well as a
separate motion for leave to withdraw on October 2, 2018. The trial court
permitted trial counsel to withdraw and dismissed Appellant’s post-sentence
motion without prejudice such that Appellant could re-file the motion after
new counsel entered their appearance. Private counsel subsequently entered
their appearance and filed a supplemental post-sentence motion.
Nevertheless, the public defender filed a notice of appeal before the trial court
could rule on the supplemental post-sentence motion.
Because the entry of an appropriate order is a prerequisite to this Court’s
exercise of jurisdiction, we conclude Appellant’s notice of appeal was
premature. See Pa.R.Crim.P. 720(A)(2)(a) & cmt.; Claffey, 80 A.3d at 782-
83. Accordingly, we are compelled to quash the appeal. Upon remand, the
trial court should consider the merits of Appellant’s supplemental post-
sentence motion. See Commonwealth v. Borrero, 692 A.2d 158, 161 (Pa.
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Super. 1997) (quashing the appellant’s premature appeal and explaining that
the interests of justice required the trial court to consider the post-sentence
motions on remand, nunc pro tunc).
Appeal quashed. Case remanded for further proceedings consistent with
this decision. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/8/19
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