Com. v. Caple, F. ( 2020 )


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  • J-S07020-20
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    Appellee                :
    :
    v.                             :
    :
    FRANK CAPLE                                :
    :
    Appellant               :       No. 348 EDA 2019
    Appeal from the PCRA Order Entered December 24, 2018
    In the Court of Common Pleas of Montgomery County
    Criminal Division at No(s): CP-46-CR-0002451-2013
    BEFORE:       NICHOLS, J., KING, J., and STRASSBURGER, J.*
    MEMORANDUM BY KING, J.:                             Filed: April 15, 2020
    Appellant, Frank Caple, appeals from the order entered in the
    Montgomery County Court of Common Pleas, which granted Appellant’s pro
    se “motion requesting a final order for the [Post Conviction Relief Act
    (“PCRA”)1] issue that was ignored.” We vacate and remand with instructions.
    In its opinion, the PCRA court set forth the relevant facts of this appeal
    as follows:
    The events leading to these charges began on February 16,
    2013, at approximately 7:00 a.m.         That day, Officer
    Jonathan Gallagher, was dispatched to America’s Best Value
    Inn (hereinafter “the Inn”) located in Pottstown,
    Montgomery County for a report of a domestic assault.
    Upon arriving at the Inn, Officer Gallagher joined two other
    officers and spoke with Yolanda Smith and Anthony King,
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
    1   42 Pa.C.S.A. §§ 9541-9546.
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    who were occupying room 115. From this conversation,
    Officer Gallagher learned that an assault had just occurred.
    Neither Smith nor King was involved in the assault and they
    directed Officer Gallagher to room 210 of the Inn. However,
    the manager at the Inn indicated that room 210 was vacant.
    Since the victim was not located yet, Officer Gallagher asked
    the manager to open the door to room 210 nevertheless. It
    was apparent that room 210 was in fact vacant, but shortly
    thereafter, Officer Gallagher heard a radio transmission that
    the victim could possibly be located in room 215.
    Officer Gallagher proceeded to room 215 and although the
    curtains were drawn, they were open enough that he could
    see there was a light on. He began to knock very loudly and
    announced “police” in his attempt to locate the victim. After
    doing this several times, to no avail, Officer Gallagher asked
    the manager to open the door. He then located a female,
    Gail Benedetto, in the bathroom. Ms. Benedetto was not
    the assault victim, however while he was in room 215,
    Officer Gallagher heard through transmission that the victim
    had been located.
    Officer Gallagher noticed there were two metal crack pipes
    on top of a dresser in room 215. At that point, Ms.
    Benedetto was taken from the room in order to secure it
    while a search warrant was applied for. Found during the
    execution of the search warrant were: two cell phones
    located on the sink in room 215; a stack of business cards
    that said “Flip Entertainment,” along with a telephone
    number printed on the cards; the two metal crack pipes
    mentioned earlier; a Western Union receipt indicating
    [Appellant] sent $100 to Amber Fuller; a ceramic plate,
    razor blade, piece of a straw, blue pill bottle, small black
    glassine packaging baggies, and a bag of marijuana, all
    found in the desk drawer; a blue backpack containing men’s
    clothing and two dirty socks with large chunks of a white
    substance inside; a black and orange backpack containing a
    pack of Newport cigarettes surrounded by unused pink and
    red Ziploc baggies; a red jacket with several small baggies
    that contained a white substance found inside; and a pair of
    men’s Dickie pants with “Flip Company Home Remodeling”
    business cards sticking out of them. Testing done on several
    of the items seized and submitted to National Medical
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    Services Laboratory provided a positive result for Cocaine,
    Oxycodone, and Marijuana.
    While the search of room 215 was occurring, the victim of
    the assault, Cicely McCarty, was taken to the police station.
    Officer Gallagher met her at the station and noticed her face
    was swollen, she had a cut on her lip, and she was upset.
    It was discovered that Ms. McCarty was doing drugs in room
    115 and ended up sleeping there on the floor. The next
    morning, February 16, 2013, [Appellant] called room 115
    and told Ms. McCarty to leave. About two minutes later,
    [Appellant] came downstairs to room 115 and engaged in a
    verbal and physical fight with Ms. McCarty. As she left, Ms.
    McCarty called the cops. This call was what initially led
    Officer Gallagher to the Inn and resulted in the charges filed
    against the [Appellant].
    (PCRA Court Opinion, filed June 25, 2019, at 1-3) (internal citations omitted).
    At trial, a jury convicted Appellant of three counts of possession of a
    controlled substance, two counts of possession of a controlled substance with
    intent to deliver, and one count each of possession of drug paraphernalia and
    simple assault.   On June 4, 2014, the court sentenced Appellant to an
    aggregate term of five (5) to twenty (20) years’ imprisonment. The sentence
    included certain mandatory minimum terms based upon the weight of the
    drugs at issue. The court also issued an “alternative sentence,” in the event
    that future appellate court decisions might render the applicable mandatory
    minimum statutes unconstitutional.
    On appeal, this Court vacated the judgment of sentence and remanded
    for resentencing. See Commonwealth v. Caple, 
    121 A.3d 511
     (Pa.Super.
    2015). Specifically, this Court granted relief on Appellant’s sentencing claims,
    but it denied relief on Appellant’s suppression of evidence issue.        Upon
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    remand, the court resentenced Appellant to an aggregate term of four (4) to
    twenty (20) years’ imprisonment. Appellant timely filed a notice of appeal,
    but he subsequently filed a praecipe for discontinuance on July 28, 2016.
    On September 7, 2016, Appellant timely filed a pro se PCRA petition.
    The court appointed PCRA counsel, who filed an amended petition on
    December 15, 2016. In the amended petition, Appellant claimed counsel for
    his first appeal was ineffective for: 1) failing to raise a proper argument
    regarding the illegal seizure of Appellant’s personal items from the hotel room,
    and; 2) failing to file a petition for reargument after the Superior Court denied
    relief on the suppression issue.        The PCRA court conducted an evidentiary
    hearing on April 25, 2017. On April 26, 2017, the court reinstated Appellant’s
    right to seek reargument nunc pro tunc in the Superior Court and/or file a
    petition for allowance of appeal nunc pro tunc.2
    Appellant filed a petition for reconsideration and reargument nunc pro
    tunc, which this Court denied on August 1, 2017. Thereafter, Appellant filed
    a petition for allowance of appeal nunc pro tunc, which our Supreme Court
    denied on January 17, 2018.
    Despite still having PCRA counsel as his attorney of record, Appellant
    attempted to file a pro se motion in the PCRA court on November 29, 2018.
    In the pro se motion, Appellant argued that the PCRA court “issued an order,
    ____________________________________________
    2 The order also confirmed that PCRA counsel remained Appellant’s attorney
    of record.
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    granting and addressing only the second issue” in the amended PCRA petition.
    (Pro Se Motion, filed 11/29/18, at 1). Appellant insisted that the PCRA court
    “never issued any final orders [or] addressed” the claim of ineffectiveness
    regarding direct appeal counsel’s failure to raise a proper argument about the
    purportedly illegal seizure. (Id.). Thus, Appellant requested that the PCRA
    court “issue a final order with the disposition of” the remaining ineffectiveness
    issue. (Id. at 2).
    The Clerk of Court’s office accepted Appellant’s pro se motion, placed a
    time stamp on it, made a docket entry reflecting the date of receipt, and
    forwarded the motion to PCRA counsel. Before PCRA counsel took any further
    action, the PCRA court entered an order on December 24, 2018. The PCRA
    court’s order expressly denied the remaining claim in Appellant’s amended
    PCRA petition, stating that Appellant did not receive ineffective assistance of
    counsel.3
    PCRA counsel timely filed a notice of appeal on January 22, 2019. That
    same day, the PCRA court ordered Appellant to file a Pa.R.A.P. 1925(b)
    concise statement of errors complained of on appeal. Appellant timely filed a
    Rule 1925(b) statement on February 8, 2019.
    Appellant now raises three issues for our review:
    DID THE [PCRA] COURT ERR IN ITS ORDER OF DECEMBER
    24, 2018, DECIDING [APPELLANT’S] PRO SE MOTION
    ____________________________________________
    3The order also reiterated that PCRA counsel remained attorney of record for
    any further proceedings.
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    REQUESTING A FINAL ORDER FOR THE PCRA ISSUE THAT
    WAS IGNORED, INASMUCH AS AT THE TIME OF THE FILING
    AND DECISION [APPELLANT] WAS REPRESENTED BY
    COUNSEL AND THE [PCRA] COURT’S CONSIDERING THE
    MOTION WAS A VIOLATION OF THE PROHIBITION AGAINST
    HYBRID REPRESENTATION?
    DID THE [PCRA] COURT ERR IN ITS ORDER OF DECEMBER
    24, 2018, DECIDING [APPELLANT’S] PRO SE MOTION
    REQUESTING A FINAL ORDER FOR THE PCRA ISSUE THAT
    WAS IGNORED, AND DISMISSING THE BALANCE OF
    [APPELLANT’S] PCRA CLAIMS IN THE AMENDED PETITION
    FILED DECEMBER 15, 2016, INASMUCH AS THE [PCRA]
    COURT DID NOT HAVE JURISDICTION TO DECIDE THE 2016
    CLAIMS AS THE [PCRA] COURT’S ORDER OF APRIL 26,
    2017, REINSTATED [APPELLANT’S] DIRECT APPEAL
    RIGHTS, THE SUPERIOR COURT AFFIRMED THE JUDGMENT
    OF SENTENCE ON AUGUST 1, 2017, THE PEITTION FOR
    ALLOWANCE OF APPEAL … WAS DENIED BY THE SUPREME
    COURT ON JANUARY 17, 2018, AND ACCORDINGLY
    [APPELLANT] HAD ONE YEAR FROM THAT DATE (JANUARY
    17, 2018) TO FILE A PETITION UNDER THE PCRA RAISING
    HIS COLLATERAL CLAIMS?
    DID THE [PCRA] COURT ERR IN ITS ORDER OF DECEMBER
    24, 2018, DECIDING [APPELLANT’S] PRO SE MOTION
    REQUESTING A FINAL ORDER FOR THE PCRA ISSUE THAT
    WAS IGNORED, AND DISMISSING THE BALANCE OF
    [APPELLANT’S] PCRA CLAIMS IN THE AMENDED PETITION
    FILED DECEMBER 15, 2016, INASMUCH AS TRIAL COUNSEL
    …, APPELLATE COUNSEL …, AND FIRST PCRA COUNSEL …
    WERE INEFFECTIVE IN NOT LITIGATING THE ISSUE
    CONCERNING THE WARRANTLESS SEIZURE OF A RECEIPT
    BEARING [APPELLANT’S] NAME FROM THE HOTEL ROOM IN
    QUESTION, AS THERE WAS NO PROBABLE CAUSE TO LINK
    THE RECEIPT TO ANY CRIMINAL ACTIVITY AND THE
    INCRIMINATING CHARACTER OF THE RECEIPT WAS NOT
    READILY APPARENT?
    (Appellant’s Brief at vi).
    On appeal, Appellant argues the PCRA court should not have ruled upon
    his November 29, 2018 pro se motion. Appellant contends PCRA counsel was
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    his attorney of record at the time he submitted the pro se motion; therefore,
    the pro se motion was a legal nullity.      Appellant also insists “there was
    technically nothing open and pending before the [PCRA] court,” because it had
    already reinstated Appellant’s direct appeal rights nunc pro tunc. (Id. at 18).
    Under these procedural circumstances, Appellant maintains he should still
    possess the right to pursue any and all claims available under the PCRA.
    Appellant concludes this Court must vacate the December 24, 2018 order
    disposing of the pro se motion and remand the matter to the PCRA court for
    the filing of any new PCRA claims Appellant wishes to pursue. We agree.
    When counsel is appointed to represent a PCRA petitioner, “the
    appointment … shall be effective throughout the post-conviction collateral
    proceedings, including any appeal from disposition of the petition….”
    Pa.R.Crim.P. 904(F)(2).    It is well settled that hybrid representation is
    prohibited. Commonwealth v. Jette, 
    611 Pa. 166
    , 
    23 A.3d 1032
     (2011).
    Further, Pennsylvania Rule of Criminal Procedure 576(A)(4) governs the
    submission of pro se filings by represented defendants as follows:
    Rule 576. Filing and Service by Parties
    (A)   Filing
    *    *    *
    (4) In any case in which a defendant is represented by
    an attorney, if the defendant submits for filing a written
    motion, notice, or document that has not been signed by
    the defendant’s attorney, the clerk of courts shall accept it
    for filing, time stamp it with the date of receipt and make a
    docket entry reflecting the date of receipt, and place the
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    document in the criminal case file. A copy of the time
    stamped document shall be forwarded to the defendant’s
    attorney and the attorney for the Commonwealth within 10
    days of receipt.
    Pa.R.Crim.P. 576(A)(4). Pro se filings that require merits review, including
    motions, are legal nullities when they are filed by a defendant who is
    represented by counsel. See Commonwealth v. Ali, 
    608 Pa. 71
    , 89, 
    10 A.3d 282
    , 293 (2010); Commonwealth v. Nischan, 
    928 A.2d 349
    , 355
    (Pa.Super. 2007), appeal denied, 
    594 Pa. 704
    , 
    936 A.2d 40
     (2007).
    Instantly, the PCRA court’s opinion recognized that PCRA counsel was
    still the attorney of record when Appellant attempted to file the November 29,
    2018 pro se motion. (See PCRA Court Opinion at 7). Therefore, the pro se
    filing was a legal nullity, and the PCRA court should not have addressed it.
    See Jette, 
    supra;
     Ali, 
    supra;
     Nischan, 
    supra.
     Accordingly, we vacate the
    December 24, 2018 order addressing the pro se motion and remand for
    further proceedings. Upon remand, Appellant may present new claims under
    the PCRA.4
    Order vacated; case remanded for further proceedings. Jurisdiction is
    relinquished.
    ____________________________________________
    4 Because the PCRA court granted relief based upon Appellant’s 2016 petition,
    the court must treat any new PCRA petition as Appellant’s first. See
    Commonwealth v. Turner, 
    73 A.3d 1283
    , 1286 (Pa.Super. 2013), appeal
    denied, 
    625 Pa. 649
    , 
    91 A.3d 162
     (2014) (explaining that when petitioner’s
    direct appeal rights are reinstated nunc pro tunc in first PCRA petition,
    subsequent petition will be considered first petition for timeliness purposes).
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    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 4/15/20
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