Com. v. Persaud, M. ( 2019 )

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2019 PA Super 236COMMONWEALTH 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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