Com. v. Hall, W. ( 2020 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
WENDELL HALL, JR., : No. 358 WDA 2019
:
Appellant :
Appeal from the Judgment of Sentence Entered September 20, 2018,
in the Court of Common Pleas of Beaver County
Criminal Division at No. CP-04-CR-0000087-2018
BEFORE: SHOGAN, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 01, 2020
Wendell Hall, Jr., appeals from the September 20, 2018 aggregate
judgment of sentence of 60 days’ imprisonment, followed by 6 months’
probation, imposed after a jury found him guilty of habitual offenders, driving
while operating privilege is suspended or revoked, and turning movements
and required signals.1 Contemporaneously with this appeal, counsel has
requested leave to withdraw in accordance with Anders v. California, 386
U.S. 738 (1967), Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981),
and their progeny. After careful review, we quash this untimely appeal and
dismiss counsel’s petition to withdraw as moot.
The trial court summarized the relevant facts of this case as follows:
1 75 Pa.C.S.A. §§ 6503.1, 1543(b)(1), and 3334(a), respectively.
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Officer Andrew Golletti testified that he saw a white
GMC motor vehicle fail to use a turn signal when
turning onto Ridge Road from Cascade Road in
Monaca, Beaver County, Pennsylvania [on
September 26, 2017]. Officer Golletti followed the
vehicle and ran the registration through his computer
system. Officer Golletti testified that, after he ran the
registration, dispatch had told him that [appellant’s]
name was on the registration, and that [appellant’s]
driver’s license was suspended for driving under the
influence [(“DUI”)]. At this point, Officer Golletti
observed the vehicle fail to use a turn signal a second
time, and he conducted a stop of the vehicle. When
Officer Golletti approached the stopped vehicle, the
driver refused to give any information about his
identity, so Officer Golletti ran [appellant’s] name in
his vehicle’s computer system, JNET, and then he
identified the driver as [appellant].
Next, Officer Golletti was presented with a twenty-two
page document which he identified as the driving
history of [appellant], which was certified with the
official seal from PennDOT. This official driving record
revealed that [appellant] had several violations,
including numerous convictions for [DUI], reckless
driving, and driving without a driver’s license.
Further, Comm[wealth] Exhibit 2, shows that on
May 24, 2010, and on February 29, 2012,
[appellant’s] license was revoked for being a habitual
offender. Officer Golletti testified that the information
contained in [appellant’s] driving history prompted
him to charge [appellant] with the charges brought
before this Court for trial.
Trial court opinion, 4/5/19 at 3-5 (footnotes, internal quotation marks, and
extraneous capitalization omitted).
Appellant proceeded to a jury trial on May 15, 2018. At the
commencement of trial, appellant objected to the appointment of counsel from
the Beaver County Public Defender’s Office, repeatedly indicating that he had
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a Sixth Amendment right to be represented by his private counsel – first,
Attorney Colafella,2 and later Blaine Jones, Esq. (Notes of testimony, 5/15/18,
at 6, 10, 22-23.) Following a short recess wherein the trial court contacted
Attorney Colafella’s office and confirmed that appellant was represented by
neither Attorney Colafella nor any other private counsel, the trial court
appointed C. Shawn Dryer, Esq., of the Beaver County Public Defender’s Office
(“Attorney Dryer”) as standby counsel and appellant elected to represent
himself. (Id. at 19-21, 30-33, 37; see also trial court order, 3/15/18.)3
Following a two-day trial, appellant was ultimately found guilty of habitual
offenders, driving while operating privilege is suspended or revoked, and
turning movements and required signals on May 16, 2018.
A sentencing hearing was held on July 25, 2018, but was subsequently
continued; Attorney Dryer was present at this hearing and acted as appellant’s
standby counsel. On September 11, 2018, Kurt J. Winter, Esq., of the Beaver
County Public Defender’s Office (“Attorney Winter”), entered his
appearance on behalf of appellant. As noted, appellant was sentenced to an
aggregate term of 60 days’ imprisonment, followed by 6 months’ probation,
2 Attorney Colafella’s first name is not indicated in the record.
3 The record reflects that the trial court conducted a lengthy and painstaking
colloquy at trial, in accordance with Commonwealth v. Grazier, 713 A.2d
81 (Pa. 1998), wherein it determined, after considerable indecisiveness on the
part of appellant, that he intelligently, knowingly, and voluntarily waived his
right to representation. (See notes of testimony, 5/16/18 at 22-34.)
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on September 20, 2018.4 Although represented by counsel, appellant
proceeded to file four pro se post-sentence motions on September 26,
September 28, October 1, and October 3, 2018, respectively.5 On October 5,
2018, appellant sent pro se correspondence to the Beaver County Clerk of
Courts indicating that he “do[es] not wish to be represented by
[Attorney] Winter, [Attorney] Dryer[,] or any other of the Public Attorney as
they create a conflict of interest” and “haven’t [sic] sign him power of attorney
over me.” (Pro se letter, 10/5/18 at 1-2.)
Thereafter, on January 25, 2019, the trial court filed an opinion and
order denying appellant’s September 28, 2018 pro se request for
post-sentence relief and informing him that he had 30 days to file an appeal
of that order. (See trial court opinion and order, 1/25/19 at 2.) On
February 13, 2019, appellant filed a pro se notice of appeal “from the order
entered in this matter on the 16th day of May, 2018” – the date of the jury
verdict. (Pro se notice of appeal, 2/13/19.) Because appellant was still
4The record reflects that Attorney Dryer was present at the September 20,
2018 sentencing hearing and acted as appellant’s standby counsel.
5 See “Motion to Transfer Beaver County Jail Sentence to Intermediate
Punishment Upon Drug and Alcohol Evaluation,” 9/26/18; “Petition of Writ of
Mandamus Relief Under 42 Pa.C.S.[A.] § 9760(1) to Modify Sentence to Time
Served or Credit Served,” 9/28/18; “Petition of Writ of Mandamus Relief
42 Pa.C.S.[A.] § 9760(1) to Modify Sentence to Time Served or Credit
Served,” 10/1/18; “Post Sentence Motion to Modify Sentence under
42 Pa.C.S.[A.] § 9760(1) to Time Serve[d] or Time Credit[ed],” 10/3/18.)
The record indicates that the Beaver County Clerk of Courts noted these
pro se motions on the docket and forwarded them to Attorney Winter and the
Commonwealth’s attorney, pursuant to Pa.R.Crim.P. 576(A)(4).
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represented by Attorney Winter at this time, the Beaver County Clerk of Courts
docketed this notice of appeal and forwarded it to counsel, pursuant to
Pa.R.Crim.P. 576(A)(4). Shortly thereafter, on February 25, 2019,
Attorney Winter filed a notice of appeal on appellant’s behalf from the
September 20, 2018 judgment of sentence. On March 1, 2019, the trial court
directed appellant to file a concise statement of errors complained of on
appeal, in accordance with Pa.R.A.P. 1925(b). In lieu of filing a statement of
his intention to file an Anders/McClendon brief,6 Attorney Winters filed a
timely Rule 1925(b) statement, raising the following issues on appellant’s
behalf:
(i) The Commonwealth did not present sufficient
evidence to prove beyond a reasonable doubt
that [appellant] is guilty of the crimes alleged.
(ii) [Appellant] argues that the weight of the
evidence was not sufficient to prove beyond a
reasonable doubt that [appellant] is guilty of the
crimes alleged.
Rule 1925(b) statement, 3/22/19 at ¶ 5.
The trial court filed its Rule 1925(a) opinion on April 5, 2019.
Thereafter, on May 21, 2019, Attorney Winters filed a petition and brief to
withdraw from representation. Appellant did not respond to Attorney Winter’s
petition to withdraw.
6 See Pa.R.A.P. 1925(c)(4) (stating, “In a criminal case, counsel may file of
record and serve on the judge a statement of intent to file an
Anders/McClendon brief in lieu of filing a Statement.”).
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Prior to any consideration of Attorney Winter’s Anders brief and his
petition to withdraw, we must consider whether this appeal is timely. We lack
jurisdiction to consider untimely appeals, and we may raise such jurisdictional
issues sua sponte. Commonwealth v. Burks, 102 A.3d 497, 500
(Pa.Super. 2014). “Absent extraordinary circumstances, this court has no
jurisdiction to entertain an untimely appeal.” Id. (citation omitted).
Pennsylvania Rule of Appellate Procedure 903(c)(3) requires that a
defendant’s notice of appeal be filed “within 30 days of the imposition of the
judgment of sentence in open court.” Pa.R.A.P. 903(c)(3). It is axiomatic
that the “[t]ime limitations for taking appeals are strictly construed and cannot
be extended as a matter of grace.” Burks, 102 A.3d at 500 (citation omitted).
Pennsylvania Rule of Criminal Procedure 720 states that a post-sentence
motion must be filed within 10 days of the sentencing being imposed.
Pa.R.Crim.P. 720(A)(1). When such a motion is timely filed, the
Rule 903(c)(3) appeal period is tolled. Pa.R.Crim.P. at 720(A)(2). However,
“[i]f the defendant does not file a timely post-sentence motion, the
defendant’s notice of appeal shall be filed within 30 days of imposition of
sentence[.]” Id. at 720(A)(3).
Moreover, courts in this Commonwealth have repeatedly disapproved of
the practice of hybrid representation. See, e.g., Commonwealth v. Ellis,
626 A.2d 1137 (Pa. 1993) (approving this court’s refusal to consider counseled
litigant’s pro se brief); Commonwealth v. Pursell, 724 A.2d 293 (Pa. 1999)
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(approving post-conviction court’s refusal to consider issues raised in
counseled appellant’s pro se petition), cert. denied, 528 U.S. 975 (1999).
This court has recognized that
[i]n this Commonwealth, hybrid representation is not
permitted. See Commonwealth v. Jette, [23 A.3d
1032, 1036 (Pa. 2011)] (concluding that a petitioner’s
pro se motion for remand when that petitioner is
represented by counsel is impermissible as hybrid
representation). Accordingly, this Court will not
accept a pro se motion while an appellant is
represented by counsel; indeed, pro se motions have
no legal effect and, therefore, are legal nullities. See
Commonwealth v. Nischan, 928 A.2d 349, 355
(Pa.Super. 2007) (discussing a pro se post-sentence
motion filed by a petitioner who had counsel)[,
appeal denied, 936 A.2d 40 (Pa. 2007).] When a
counseled defendant files a pro se document, it is
noted on the docket and forwarded to counsel
pursuant to Pa.R.Crim.P. 576(A)(4), but no further
action is to be taken. Moreover, a pro se filing has
no tolling effect. See Pa.R.Crim.P. 576 [comment].
(“The requirement that the clerk time stamp and
make docket entries of the filings in these cases only
serves to provide a record of the filing, and does not
trigger any deadline nor require any response.”).
Commonwealth v. Williams, 151 A.3d 621, 623 (Pa.Super. 2016) (citations
reformatted).
Here, appellant’s four pro se post-sentence motions are legal nullities
because he was represented by Attorney Winter at the time of filing, and thus
constitute improper hybrid representation. Attorney Winter, in turn, did not
file any post-sentence motions on appellant’s behalf, and therefore, the appeal
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period was not tolled.7 Appellant was sentenced on September 20, 2018, and
his counsel of record, Attorney Winter, filed a notice of appeal on his behalf
on February 25, 2019 — more than five months later. Accordingly, we lack
jurisdiction over this appeal because appellant’s notice of appeal was untimely
filed. Consequently, we lack jurisdiction to review counsel’s Anders brief, his
petition to withdraw, and the record to determine whether we agree with his
assessment that the appeal is wholly frivolous.
7 To the extent that a viable argument could be made that Attorney Winter
abandoned appellant during the post-sentence motions phase, we decline to
reach such a conclusion. Despite his plethora of pro se filings in this case,
there is no evidence in the record that appellant requested or desired
Attorney Winter to file a post-sentence motion on his behalf. Nor has
appellant filed a pro se response to Attorney Winter’s withdrawal petition,
alleging counsel’s ineffectiveness in this regard.
On the contrary, the record is replete with evidence that appellant’s
primary contention throughout this case is that he was entitled to be appointed
private counsel of his choosing, in lieu of counsel from the Beaver County
Public Defender’s Office. Appellant repeatedly averred during both his jury
trial and post-trial that he “do[es] not wish to be represented by any . . .
Public Attorney[.]” (See pro se letter, 10/5/18 at 1; see also notes of
testimony, 5/15/18 at 1-37.) This is a right that appellant clearly does not
possess. “The right to counsel is guaranteed by both the Sixth Amendment
to the United States Constitution and by Article I, Section 9 of the
Pennsylvania Constitution. . . . [T]hese constitutional rights entitle an accused
to choose at his own cost and expense any lawyer he may desire.”
Commonwealth v. Prysock, 972 A.2d 539, 542 (Pa.Super. 2009) (citation
and internal quotation marks omitted). “[H]owever . . . the constitutional right
to counsel of one’s choice is not absolute.” Id. (citation omitted). “Rather,
the right of an accused individual to choose his . . . own counsel . . . must be
weighed against and may be reasonably restricted by the state’s interest in
the swift and efficient administration of criminal justice. Commonwealth v.
Lucarelli, 971 A.2d 1173, 1178 (Pa. 2009) (citation omitted). “While an
indigent is entitled to free counsel, he is not entitled to free counsel of his
own choosing.” Commonwealth v. Cook, 952 A.2d 594, 617 (Pa. 2008)
(citation omitted; emphasis added).
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Appeal quashed. Petition to withdraw as counsel dismissed as moot.
Judge Shogan joins the memorandum.
Judge McLaughlin concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/01/2020
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