Com. v. Munro, J. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JAHMAL MUNRO :
:
Appellant : No. 1385 EDA 2019
Appeal from the Judgment of Sentence Entered April 22, 2019
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0002000-2018
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: Filed: August 12, 2021
Appellant, Jahmal Munro, appeals from the April 22, 2019 judgment of
sentence that imposed, inter alia, an aggregate sentence of 54 to 108 months’
incarceration after a jury convicted Appellant of manufacture, delivery, or
possession with intent to manufacture or deliver a controlled substance and
firearms not to be carried without a license, and after the trial court, in a
bench trial, convicted Appellant of persons not to possess, use, manufacture,
control, sell, or transfer firearms.1 We remand this case.
The trial court summarized the procedural history as follows:
[On] February 14, 2018, Appellant was formally arraigned and
charged with various violations relating to the possession and
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* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. §§ 6106(a)(1) and 6105(a)(1),
respectively.
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distribution of a controlled substance and several firearm-related
violations. A jury trial commenced [] on March 20, 201[9,] and
concluded the following day. [Upon] conclusion of the trial, [the]
jury found [] Appellant guilty of [manufacture, delivery, or
possession with intent to manufacture or deliver a controlled
substance] and [firearms not to be carried] without a license.
Based on a stipulation of counsel, the charge of [persons not to
possess firearms] was considered by the [trial] court separately.
Appellant was found guilty of that charge as well. [On April 22,
2019, Appellant] was sentenced to an aggregate term [] of [54 to
108] months[’ incarceration]; ordered to pay costs, fees[,] and
other assessments; [ordered] to submit to DNA testing; [ordered]
to forfeit firearms and cellphones; and [] declared ineligible for
either boot camp or [recidivism risk reduction incentive]
treatment.
Trial Court Opinion, 11/1/19, at unnumbered page 1 (extraneous
capitalization and footnotes omitted).
On May 2, 2019, while still represented by counsel, Appellant filed pro
se a post-sentence motion for reconsideration of sentence and a notice of
appeal. On May 10, 2019, then-counsel for Appellant, Deon Basheer
Browning, Esquire (“Attorney Browning”), filed a motion to withdraw as
counsel in which Attorney Browning asserted that he “perfected [Appellant’s]
appellate rights.” Motion to Withdraw as Trial Counsel, 5/10/19, at ¶5. On
August 20, 2019, the trial court granted Attorney Browning’s motion to
withdraw. The trial court subsequently ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On August 27, 2019, the trial court appointed Harry Kleinman, Esquire
(“Attorney Kleinman”) as appellate counsel and, again, ordered Appellant to
file a Rule 1925(b) statement.
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In a September 9, 2019 per curiam order, this Court directed Appellant
to show cause why his appeal should not be quashed as interlocutory because
the trial court did not enter an order concerning Appellant’s pro se
post-sentence motion.2 Per Curiam Order, 9/9/19. On October 21, 2019,
Attorney Kleinman filed a statement of intent to file an Anders brief,3
pursuant to Pa.R.A.P. 1925(c)(4). See Pa.R.A.P. 1925(c)(4) (stating, “[i]n a
criminal case, counsel may file of record and serve on the [trial court] a
statement of intent to file an Anders[] brief in lieu of filing a [Rule 1925(b)]
[s]tatement”). On November 1, 2019, the trial court filed an opinion stating
that, “[c]ounsel’s statement of intent [to file an Anders brief] eliminates [the
trial] court’s duty to file an opinion under [Rule] 1925(a) since [the trial] court
plays no role in evaluating the Anders brief.” Trial Court Opinion, 11/1/19.
In a December 5, 2019 per curiam order, this Court remanded the
instant case to the trial court for 30 days in order for the trial court to
determine whether Attorney Kleinman abandoned Appellant on appeal. Per
Curiam Order, 12/5/19. On December 20, 2019, Attorney Kleinman filed with
this Court a motion for an extension of time in which to file an Anders brief,
as well as an appellate docketing statement. In a letter dated December 30,
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2 For reasons discussed in detail infra, upon review of the procedural posture
of the case sub judice, this per curiam order was entered in error.
3 Anders v. California, 386 U.S. 738 (1967); see also Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009); Commonwealth v. McClendon, 434
A.2d 1185 (Pa. 1981).
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2019, the trial court notified this Court that a hearing was held regarding the
status of Attorney Kleinman’s representation of Appellant and that the trial
court was satisfied Attorney Kleinman had not abandoned Appellant.4
In a January 9, 2020 per curiam order, this Court directed Appellant to
file a response to this Court’s September 9, 2019 rule to show cause order.5
Per Curiam Order, 1/9/20. In a February 19, 2020 per curiam order, this
Court referred the issue raised in the September 9, 2019 rule to show cause
order to a merits panel. Per Curiam Order, 2/19/20. On March 10, 2020,
Attorney Kleinman filed an Anders brief and a petition to withdraw as
Appellant’s counsel.
In a March 24, 2020 per curiam order, this Court directed Attorney
Kleinman “to send a new letter addressed to Appellant advising him of his
immediate right to proceed pro se or with privately retained counsel and to
raise any additional points or issues [he] deems worth[y] of [this] Court's
attention.” Per Curiam Order, 3/24/20 (emphasis omitted). Attorney
Kleinman did not file a response. In a June 29, 2020 per curiam order, this
Court directed Attorney Kleinman to comply with the March 24, 2020 per
curiam order. Per Curiam Order, 6/29/20. Attorney Kleinman did not comply.
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4 Attorney Kleinman advised the trial court that he did not receive this Court’s
prior per curiam orders.
5 In the same per curiam order, this Court reset the briefing schedule and,
therefore, deemed the motion for extension of time filed by Attorney Kleinman
as moot. Per Curiam Order, 1/9/20.
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In an October 6, 2020 per curiam order, this Court ordered Attorney
Kleinman to withdraw his appearance as Appellant’s counsel in view of his
failure to comply with the March 24, 2020 per curiam order. Per Curiam Order,
10/6/20. This Court remanded the case and directed the trial court to appoint
substitute appellate counsel within 10 days. Id. On October 27, 2020, the
trial court appointed Steven F. O’Meara, Esquire (“Attorney O’Meara”).
Attorney O’Meara filed an appellate brief on March 3, 2021.
Appellant raises the following issues for our review:
1. Is there legally sufficient evidence to sustain the guilty
verdicts for firearms not to be carried without a license,
[persons not to possess firearms,] and possession of a
controlled substance with intent to deliver, where the
testimony and evidence presented failed to prove beyond a
reasonable doubt that [A]ppellant possessed a firearm or
controlled substances with the intent to distribute?
2. Did the assistant district attorney's conduct throughout the
trial so prejudice [Appellant] as to prevent [] a fair trial?
(A) [Did the assistant district attorney prejudice
Appellant when she suggested that Appellant
intimidated the Uber driver such that the
Uber driver was unable to recall at trial the
events involving Appellant and the discharge
of a firearm?6]
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6 In its opening statement, the Commonwealth proffered that an Uber driver,
who provided transportation services to Appellant on the day of the incident,
would testify that Appellant was in possession of a firearm, which he
discharged while in the Uber driver’s vehicle. N.T., 3/20/19, at 14-16. At
trial, the Uber driver claimed to have no recollection of the events involving
the transportation of Appellant or Appellant’s discharge of a firearm in the
Uber driver’s vehicle. Id. at 30-39.
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(B) [Did] the assistant district attorney's threat
to the [Uber driver in front of] the jury[] that
she would [produce] a witness who would
testify that the [Uber driver] was intimidated
[by Appellant] into not testifying, but was
then unable to present said witness[,
prejudice Appellant?]
Appellant’s Brief at 4 (extraneous capitalization omitted).7
Preliminarily, we address the propriety of Appellant’s notice of appeal
and post-sentence motion for reconsideration of sentence that were filed on
the same day and filed pro se while Appellant was represented by counsel.
These filings implicate the jurisdiction of this Court. Commonwealth v.
Rojas, 874 A.2d 638, 642 (Pa. Super. 2005) (stating that, when a
post-sentence motion is pending, a judgment of sentence does not become
final, thereby invoking the jurisdiction of this Court, until the trial court enters
an order disposing of the post-sentence motion or the post-sentence motion
is denied by operation of law).
Hybrid representation is not permitted in this Commonwealth, and, with
limited exception, courts are not to act upon pro se filings from a defendant
who is represented by counsel. Commonwealth v. Williams, 241 A.3d 354n.1 (Pa. Super. 2020) (stating, “[a]s hybrid representation is not permitted in
the Commonwealth, our courts will not [act upon] a pro se motion while [a
defendant] is represented by counsel; indeed, pro se motions have no legal
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7 In his brief, Appellant requests permission to file a Rule 1925(b) statement
nunc pro tunc and further requests that the trial court issue a Rule 1925(a)
statement. Appellant’s Brief at 4 n.1.
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effect and, therefore, are legal nullities” (original quotation marks omitted)).
Rather, the trial court, upon receiving a pro se filing from a defendant who is
represented by counsel shall, inter alia, note on the docket the nature of the
pro se filing, including its date of submission, and forward the pro se filing to
counsel of record. Id.; see also Pa.R.Crim.P. 576(A)(4) (stating, “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 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.”). Provided
that counsel received proper notice of the pro se filing pursuant to Rule
576(A)(4), if counsel adopts the pro se filing, trial courts shall give force to
the pro se filing without offending considerations of hybrid representation.
Commonwealth v. Mason, 130 A.3d 601, 671 (Pa. 2015). Moreover,
because the pro se filing of a notice of appeal protects a defendant’s
constitutional right to an appeal, such a pro se filing from a defendant who is
represented by counsel will not offend the considerations of hybrid
representation.8 Williams, 241 A.3d at 355; see also PA Const. Art. 5, § 9
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8 When a defendant who is represented by counsel files pro se a notice of
appeal with the trial court, the trial court shall, inter alia, accept the notice of
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(stating, “[t]here shall be a right of appeal in all cases” from the trial court to
this Court).
Here, Appellant filed pro se his notice of appeal and a post-sentence
motion for reconsideration of sentence on May 2, 2019. A review of the trial
court docket statement demonstrates that the trial court provided Attorney
Browning with notice of Appellant’s pro se notice of appeal and his pro se
post-sentence motion.9 Attorney Browning responded by filing a motion to
withdraw as counsel in which Attorney Browning stated that he “perfected
[Appellant’s] appellate rights.” In so stating, Attorney Brown implicitly
adopted Appellant’s pro se post-sentence motion, which preserved certain
claims for appeal,10 and his pro se notice of appeal. Therefore, Appellant’s
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appeal, time stamp it with the date of receipt, make a docket entry reflecting
the date of receipt, forward a copy of the time-stamped notice of appeal to
the defendant’s attorney and the attorney for the Commonwealth, and forward
a copy of the time-stamped notice of appeal to this Court. Pa.R.Crim.P.
576(A)(3) and (A)(4); see also Pa.R.A.P. 902 (stating, “[a]n appeal permitted
by law as of right from a [trial] court to an appellate court shall be taken by
filing a notice of appeal with the clerk of the [trial] court within the time
allowed”). Upon receipt, this Court shall docket the pro se notice of appeal
received from the trial court even in the instance where the defendant is
represented by counsel in the trial court. 210 Pa. Code § 65.24.
9 A copy of Appellant’s pro se notice of appeal and pro se post-sentence motion
were provided to Attorney Browning on May 3, 2019.
10 Although, in general, the filing of a post-sentence motion is optional, an
issue which can only be decided by the trial court and that has not been raised
before or during trial or at sentencing, such as a weight of the evidence claim,
the voluntariness of a guilty plea, or a challenge to a discretionary aspect of
sentence, must be raised in a timely post-sentence motion in order to be
properly preserved. Pa.R.Crim.P. 720(B)(1)(c).
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pro se submissions did not offend the considerations of hybrid representation.
Mason, 130 A.3d at 671. As such, the trial court should have acted on
Appellant’s post-sentence motion. Commonwealth v. Cooper, 27 A.3d 994,
1008 (Pa. 2011) (holding that, a pro se notice of appeal filed before or
contemporaneously with a timely post-sentence motion is deemed a
premature pro se appeal and does not divest the trial court of jurisdiction to
act on the post-sentence motion). Because the trial court did not dispose of
this post-sentence motion within 120 days of its filing, Appellant’s
post-sentence motion was denied by operation of law pursuant to Pa.R.Crim.P.
720(B)(3)(a) on August 30, 2019.11 See Pa.R.Crim.P. 720(B)(3)(a) (stating,
if the trial court fails to dispose of the post-sentence motion within 120 days
of its filing, and has not granted a 30-day extension in which to do so, then
the motion shall be deemed denied by operation of law).
A review of the trial court docket, however, reveals that the clerk of
courts did not enter an order on behalf of the trial court setting forth that the
post-sentence motion was denied by operation of law. Pa.R.Crim.P.
720(B)(3)(c) (stating, “[w]hen a post-sentence motion is denied by operation
of law, the clerk of courts shall forthwith enter an order on behalf of the [trial]
court, and, as provided in [Pa.R.Crim.P.] 114, forthwith shall serve a copy of
the order on the attorney for the Commonwealth, the defendant's attorney,
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11 We recognize that this Court’s September 9, 2019 per curiam order was in
error because it did not contemplate that Appellant’s post-sentence motion
was denied by operation of law on August 30, 2019.
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or the defendant if unrepresented, that the post-sentence motion is deemed
denied”). The failure of the clerk of courts to enter an order on behalf of the
trial court setting forth that Appellant’s post-sentence motion was denied by
operation of law constitutes a break-down of the judicial system. Therefore,
we deem Appellant’s pro se notice of appeal to be filed on August 30, 2019,
upon denial, by operation of law, of his post-sentence motion. Pa.R.A.P.
905(a)(5) (stating, “[a] notice of appeal filed after the announcement of a
determination but before the entry of an appealable order shall be treated as
filed after such entry and on the day thereof”). For the foregoing reasons, we
conclude, by operation of the applicable procedural rules, that Appellant
validly invoked our appellate jurisdiction through the filing of a timely notice
of appeal from a judgment of sentence made final by the denial of a
post-sentence motion.
We now turn to matters surrounding the application of Rule 1925 within
the context of this case. In his brief, Appellant requests permission to file a
Rule 1925(b) statement nunc pro tunc and requests that the trial court
subsequently issue a Rule 1925(a) opinion. Appellant’s Brief at 4 n.1. Rule
1925(c)(3) provides that,
If an appellant represented by counsel in a criminal case was
ordered to file a [Rule 1925] statement and failed to do so or filed
an untimely [Rule 1925] statement, such that the appellate
court is convinced that counsel has been per se ineffective, and
the trial court did not file an opinion, the appellate court may
remand for appointment of new counsel, the filing of a [Rule 1925]
statement nunc pro tunc, and the preparation and filing of an
opinion by the [trial court].
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Pa.R.A.P. 1925(c)(3) (extraneous capitalization omitted, emphasis added).
The procedural posture of the instant case demonstrates that, on August
27, 2019, the trial court appointed Attorney Kleinman as appellate counsel.
On August 30, 2019, the trial court ordered Appellant to file a Rule 1925(b)
statement within 21 days. On October 21, 2019, in lieu of a Rule 1925(b)
statement, Attorney Kleinman filed a notice of intent to file an Anders brief
pursuant to Rule 1925(c)(4). After filing an Anders brief, Attorney Kleinman
failed to comply with this Court’s per curiam order concerning the necessary
notice requirements of Commonwealth v. Millisock, 873 A.2d 748(Pa. Super. 2005), and its progeny.12 See Per Curiam Order, 3/24/20; see
also Per Curiam Order, 6/29/20. Attorney Kleinman’s failure to file a timely
Rule 1925 statement constitutes ineffectiveness per se. Commonwealth v.
Burton, 973 A.2d 428, 433 (Pa. Super. 2009) (holding that, the late filing of
a Rule 1925 statement constitutes per se ineffectiveness).
Pursuant to Rule 1925(c)(3), we remand this case to the trial court in
order that Attorney O’Meara may file a Rule 1925(b) statement nunc pro tunc
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12 Pursuant to Millisock, and its progeny, “[c]ounsel also must provide a copy
of the Anders brief to his[,or her,] client.” Commonwealth v. Orellana, 86
A.3d 877, 880 (Pa. Super. 2014) (internal quotation marks and citation
omitted). The Anders brief must be accompanied by a letter that advises the
client of the option to “(1) retain new counsel to pursue the appeal; (2)
proceed pro se on appeal; or (3) raise any points that the appellant deems
worthy of the court[’]s attention in addition to the points raised by counsel in
the Anders brief.” Orellana, 86 A.3d at 880.
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within 45 days of the date of this memorandum.13 Upon the filing of a Rule
1925(b) statement nunc pro tunc, the trial court shall file a Rule 1925(a)
opinion within 45 days thereafter.
Case remanded. Jurisdiction retained.
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13 The appointment, upon remand, of new appellate counsel pursuant to Rule
1925(c)(3) is unnecessary in the case sub judice since Attorney O’Meara was
already newly appointed upon Attorney Kleinman’s failure to comply with this
Court’s March 24, 2020 per curiam order.
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