DocketNumber: 55 EAP 2009
Judges: Castille, Saylor, Eakin, Baer, Todd, McCaffery, Melvin
Filed Date: 9/29/2011
Status: Precedential
Modified Date: 10/19/2024
OPINION OF THE COURT
We consider the effect of a pro se notice of appeal forwarded to the Superior Court by a counseled criminal defendant, where counsel, who was not made aware of the pro se notice, subsequently files a timely post-sentence motion which is denied by the trial court, and then a second, timely notice of appeal. In this case, the Superior Court administratively quashed the counseled appeal as duplicative, and then quashed appellee’s pro se appeal as premature and void, yet also remanded the case to the trial court for additional review of appellee’s counseled post-sentence motion. For the reasons that follow, we vacate and remand to Superior Court for consideration of the merits of appellee’s appeal from the judgment of sentence.
On March 27, 2008, appellee appeared before Judge Means with court-appointed counsel
On Monday, March 31, 2008, appellee filed a pro se notice of appeal to the Superior Court, docketed in that court as 1055 EDA 2008.
On June 12, 2008, Judge Means issued a Rule 1925(a) opinion, in which he concluded that the VOP sentence he imposed on appellee was legal and proper.
The appeal currently before this Court derives from appellee’s pro se notice of appeal docketed at 1055 EDA 2008, because on June 9, 2008 the Superior Court administratively dismissed as “duplicative” the appeal filed by counsel at 1230 EDA 2008. Appellee did not challenge that determination.
In implementing this combined mandate of both quashal and remand, the panel relied on Commonwealth v. Mincavage, 945 A.2d 233 (Pa.Super.2008), to hold that appellee’s pro se notice of appeal was rendered premature by the subsequent timely, counseled post-sentence motion, the pro se appeal therefore was a nullity, and the trial court retained jurisdiction over the post-sentence motion. Moreover, the panel rejected the Commonwealth’s claim that appellee had waived any sentencing complaint by failing to file a post-sentence motion before taking his pro se appeal, noting that the trial court had later received a timely motion from counsel. The panel noted that the “rationale applies especially” where defense counsel has no knowledge of the pro se filing and the trial court clerk fails to forward a time-stamped copy of the pro se filing to counsel as required by Pa.R.Crim.P. 576(A)(4).
The panel explained that the purpose of this procedure is to allow the trial court, in the first instance, to correct any error that may warrant arrest of judgment, a new trial or modification of sentence. The panel added that the procedure assumes particular importance where, as here, a defendant raises a discretionary sentencing claim, which cannot be raised for the first time on direct appeal. Thus, the panel both quashed the appeal and remanded to the trial court with a directive to hold a hearing to address the merits of the counseled post-sentence motion. The panel recognized that Judge Means had already denied the post-sentence motion, and written a Rule 1925(a) opinion supporting the sentence imposed. Nevertheless, the panel felt that there was nothing in the opinion to indicate that Judge Means had considered the post-sentence motion on its merits or held a hearing, since he denied it “just three days after it was filed.” The panel also noted that Judge Means had erroneously stated in his
The Commonwealth filed a petition for allowance of appeal to this Court, which we granted, phrasing the issue before us as follows:
Are the Superior Court’s holdings in Commonwealth v. Mincavage, 945 A.2d 233 (Pa.Super.2008), and in the present case, in direct conflict with the Rules of Criminal Procedure and Rules of Appellate Procedure, specifically Pa.R.Crim. P. 720 and 721 and Pa.R.A.P. 1701 and 3304?
This issue presents a pure question of law regarding the interplay between the Superior Court’s decisions and the criminal and appellate procedural rules; therefore, our scope of review is plenary and the standard is de novo. Diehl v. W.C.A.B. (I.A. Const.), 607 Pa. 254, 5 A.3d 230, 243 (2010) (citing Lynnebrook & Woodbrook Assocs., L.P. v. Bor. of Millersville, 600 Pa. 108, 963 A.2d 1261, 1263 (2008)); Commonwealth v. Janssen Pharmaceutica, Inc., 607 Pa. 406, 8 A.3d 267, 271 (2010).
The Commonwealth argues that the Superior Court’s decisions in Mincavage and this case conflict with the appellate and criminal procedural rules. According to the Commonwealth, both in Mincavage and here, the Superior Court held that a counseled post-sentence motion filed after a defendant files a pro se notice of appeal renders the notice of appeal premature. The Commonwealth invokes Pa.R.Crim.P. 720, which provides, in relevant part: “If 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 ...” Pa.R.Crim.P. 720(A)(3). The Commonwealth argues that this Rule does not contemplate or provide for the consideration of a defendant’s post-sentence motion filed after his own notice of appeal. The Commonwealth notes that the Mincavage panel relied on the Explanatory Comment to Rule 720.
The Commonwealth further contends that the Superior Court’s decision ignores the rationale behind the Explanatory Comment, which is that a party cannot forestall consideration of the opponent’s post-sentence motion by filing a snap notice of appeal before the time for filing a post-sentence motion expires. The Commonwealth adds that Criminal Rule 721, governing Commonwealth challenges to a sentence,
Applying this Rules-based construct to the case sub judice, the Commonwealth notes that appellee filed a notice of appeal and then, subsequently, filed a post-sentence motion while the Commonwealth filed nothing. In accordance with the Rules, the Commonwealth argues, appellee’s counseled post-sentence motion was a nullity when filed because appellee had already filed a notice of appeal, divesting the trial court of jurisdiction to entertain a post-sentence motion. The Commonwealth acknowledges the complication, highlighted by the Superior Court panel, that appellee filed his notice of appeal pro se and without his counsel’s knowledge, but argues that the circumstance is immaterial to what it views as a question of jurisdiction. Further, the Commonwealth avers, the Rules draw no distinction between pro se filings and counseled filings.
The Commonwealth acknowledges that Pa.R.A.P. 3304 is designed to prohibit hybrid representation by requiring that any pro se petitions, motions, briefs or other types of pleadings filed by a represented defendant shall not be docketed but instead shall be forwarded to the defendant’s counsel of record.
Appellee responds that the procedure outlined in this case and in Mincavage is consistent with the Rules of Appellate and Criminal Procedure and, therefore, the Superior Court’s decision should be affirmed. He argues that Pa.R.A.P. 1701(b)(3) authorizes a trial court, after an appeal has been filed, to grant reconsideration of the order that is the subject of the appeal if a motion is filed in the trial court within the applicable time limit and an order granting reconsideration is entered by the trial court within the permitted time period. Where this scenario occurs, according to appellee, the timely order granting reconsideration renders the notice of appeal inoperative. Pa.R.A.P. 1701(b)(3). Appellee further claims that the comments to Rule 1701 explain that subsection (b)(3) is intended to cover the exact situation presented in this case — under such circumstances, the trial court is permitted to grant reconsideration where reconsideration is sought during the applicable appeal period and the Rule eliminates the possibility that the power to grant reconsideration is foreclosed by a speedy appeal.
Appellee further claims that he and his counsel complied with the specific requirements of Appellate Rule 1701(b)(3)
Appellee urges this Court to interpret Criminal Rules 720 and 721 in conjunction with Appellate Rule 1701(b) because to do otherwise renders Rule 1701(b) meaningless in the context of criminal appeals. He argues that, while the Commonwealth is correct that Rules 720 and 721 govern the timing of the filing of post-sentence motions by either party, and the filing of an appeal in the absence of or following disposition of post-sentence motions, the Commonwealth’s argument ignores the plain language of Rule 1701(b)(3), which provides a jurisdictional exception to the general rule that the filing of a notice of appeal divests the trial court of jurisdiction. This exception, appellee claims, allows a trial court to decide a timely post-sentence motion that is filed simultaneously with or subsequent to a notice of appeal. Appellee contends that Appellate Rule 1701(b)(3) controls in the absence of specific language in Criminal Rules 720 and 721 to the contrary.
Turning to the Superior Court’s decisions in this case and Mincavage, appellee argues that the intermediate court’s interpretation of Rules 720 and 721 is consistent with their intended purpose, which is that a defendant who files a pro se notice of appeal retains a right to reconsideration under Rules 720 and 721 upon a timely-filed post-sentence motion. Appellee claims that this right flows from the Superior Court’s understanding of the spirit of Rules 720 and 721, which is not
Appellee further claims that the holdings in this case and Mincavage are consistent with Appellate Rule 3304, which provides that a pro se filing by a represented defendant in this Court should not be docketed but rather should be forwarded to counsel of record, citing Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137 (1993). According to appellee, both Rule 3304 and Ellis prohibit the court from even accepting pro se filings by a represented defendant in the interest of promoting judicial economy in the appellate courts. Appellee bases his argument on Ellis’s holding that a criminal defendant has no right to hybrid representation in either the trial or the appellate courts. Instead, a represented defendant who wishes to proceed pro se must demonstrate to the trial court that he is waiving his right to counsel knowingly, intelligently and voluntarily, and absent such a showing, counsel must continue to represent the defendant through the disposition of the case, including appellate review. Appellee claims that a defendant’s pro se filings have no legal effect while the defendant is represented by counsel. Thus, appellee concludes, his pro se notice of appeal should have no legal effect because it was filed by a represented defendant during ongoing representation and without the advice or assistance of counsel. Any other result, he argues, renders counsel useless and compels the defendant to proceed pro se when he had no intention of representing himself and never had a colloquy with the trial court on the waiver of his right to counsel.
Appellee requests that this Court find that his pro se notice of appeal is without legal effect and that his counseled and timely post-sentence motion preserved his claims involving the discretionary aspects of his sentence. Finally, appellee argues, because the trial court denied his counseled post-sentence motion on April 10, 2008, the counseled notice of appeal filed on April 18, 2008, which the Superior Court quashed as duplicative, should be the appeal of record.
First, the Rules are not shackles. See, e.g., Pa.R.Crim.P. 101 (criminal rules are intended to provide for just determination of every proceeding, and should be construed to secure simplicity, fairness and elimination of delay); Pa.R.A.P. 104 (“In all cases not provided for by rule, the appellate courts may regulate their practice in any manner not inconsistent with these rules.”); Pa.R.A.P. 105 (rules shall be liberally construed to secure the just, speedy and inexpensive determination of every matter to which they are applicable). Thus, this Court did not require an existing rule respecting hybrid representation in order to address the issue of concern.in Commonwealth v. Ellis; the Rule, as it exists now, derives from the case.
Furthermore, both the Rules of Appellate Procedure and the Rules of Criminal Procedure expressly provide that they shall be construed according to principles of statutory construction. See Pa.R.A.P. 107 (rules of statutory construction “shall be applicable to the interpretation of these rules and all amendments hereto as if these rules were enactments of the General Assembly”); Pa.R.Crim.P. 101(c) (“To the extent practicable, these rules shall be construed in accordance with the rules of statutory construction.”). Pursuant to the Statutory Construction Act, a court’s proper role in interpreting and construing a statute is to determine the intent of the General Assembly. 1 Pa.C.S. § 1921(a). Generally, when the language of a statute is clear and free from all ambiguity, a court should not disregard the letter of the statute in order to pursue its spirit. 1 Pa.C.S. § 1921(b); Diehl, 607 Pa. 254, 5 A.3d at 243 (citing Spahn v. Zoning Bd. of Adjustment, 602 Pa. 83, 977 A.2d 1132, 1142 (2009)). Neither the Commonwealth nor appellee argues that the Rules at issue are ambiguous; thus, we are guided by their plain language.
Viewed from this perspective, we have difficulty with the approach in the Mincavage case. The Mincavage panel de
We have a separate difficulty with the Superior Court’s application of Mincavage here. The Superior Court apparently did not recognize a material difference between Mincavage and the facts of this case. In Mincavage, the trial court never ruled upon the counseled post-sentence motions, believing that it had been divested of jurisdiction by the defendant’s earlier pro se appeal, and the panel indicated that the undecided sentencing claims had been waived as a result of the premature appeal. 945 A.2d at 236. The Mincavage panel deemed quashal and remand to the trial court for consideration of the counseled post-sentence motion warranted, in order to ensure
In construing the Rules at issue in this appeal, we are mindful of the directive that specific rules take precedence over general rules:
Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions is irreconcilable, the special provisions shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail.
1 Pa.C.S. § 1933. See Mechanical Contractors Ass’n of Eastern Pennsylvania, Inc. v. Commonwealth, Dep’t of Educ., 594 Pa. 224, 934 A.2d 1262, 1272 (2007).
We first consider the general precept set forth in Appellate Rule 1701, which provides: “Except as otherwise prescribed by these rules, after an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may no longer proceed further in the matter.” Pa.R.A.P. 1701(a). Rule 1701 then lists the actions a trial
(3) Grant reconsideration of the order which is the subject of the appeal or petition, if:
(i) an application for reconsideration of the order is filed in the trial court or other government unit within the time provided or prescribed by law; and
(ii) an order expressly granting reconsideration of such prior order is filed in the trial court or other government unit within the time prescribed by these rules for the filing of a notice of appeal or petition for review of a quasijudicial order with respect to such order, or within any shorter time provided or prescribed by law for the granting of reconsideration.
A timely order granting reconsideration under this paragraph shall render inoperative any such notice of appeal or petition for review of a quasijudicial order theretofore or thereafter filed or docketed with respect to the prior order. The petitioning party shall and any party may file a praecipe with the prothonotary of any court in which such an inoperative notice or petition is filed or docketed and the prothonotary shall note on the docket that such notice or petition has been stricken under this rule. Where a timely order of reconsideration is entered under this paragraph, the time for filing a notice of appeal or petition for review begins to run anew after the entry of the decision on reconsideration, whether or not that decision amounts to a reaffirmation of the prior determination of the trial court or other government unit. No additional fees shall be required for the filing of the new notice of appeal or petition for review.
Pa.R.A.P. 1701(b)(3) (emphasis added).
This exception to the general rule that the filing of a notice of appeal divests the trial court of jurisdiction renders a notice of appeal ineffective only if a timely motion for reconsideration is both filed and granted. The exception dovetails with Criminal Rules 720 and 721, both of which indicate that no direct
The answer is not in Appellate Rule 1701 and Criminal Rules 720 and 721, but in a proper understanding of the jurisdictional effects of pro se filings in cases involving issues of hybrid representation. The proper analysis implicates our decision in Ellis, Criminal Rule 576(A)(4), Appellate Rule 3304, as well as rules and caselaw regarding the effect of prematurely filed appeals. See, e.g., Pa.R.A.P. 905(a); K.H. v. J.R., 573 Pa. 481, 826 A.2d 863, 872 (2003).
Here, the counseled appellee was sentenced on Thursday, March 27, 2008, and filed his pro se appeal on Monday, March 31, 2008. The clerk of courts accepted the notice of appeal for filing, and made an entry in the trial court docket. The proof of service reflects that appellee’s counsel was not served with the pro se filing, although appellee served the Commonwealth by first class mail. To make matters worse, the clerk of courts apparently did not comply with Criminal Rule 576(A)(4), which requires a copy of a pro se filing, made by a counseled defendant, to be forwarded to the attorneys in the
These procedural missteps respecting notice to counsel are unexplained: counsel never sought to withdraw his appearance, abandoned appellee, or refused to pursue post-sentence motions or an appeal on appellee’s behalf. See Pa.R.Crim.P. 120(B)(1) (counsel for defendant may not withdraw appearance except by leave of court); Pa.R.Crim.P. 122(B)(1) (when counsel is appointed, appointment is effective until final judgment, including any proceedings on direct appeal). In fact, counsel filed a timely post-sentence motion on April 7, 2008, and averred it was filed “as per the client’s request.” And, upon denial of the post-sentence motion on April 10, 2008 — the “triggering event” for the thirty day appeal period under Criminal Rule 720 — counsel filed a timely notice of appeal.
If the clerk of courts had properly notified counsel about the pro se notice of appeal, in accordance with Criminal Rule 576(A)(4), counsel could have taken action within the thirty day appeal period to eliminate the complication caused by the pro se appeal, such as withdrawing it. Notably, there was no other impediment to the proper consideration of appellee’s sentencing claim on appeal: the issue was preserved in counsel’s post-sentencing motion; the trial court denied the motion; and the trial court addressed the issue in its opinion. To
Appellee’s pro se notice of appeal was indeed premature, in the sense that he filed it on his own, while still ostensibly represented by counsel, and before his appointed counsel had an opportunity to file a post-sentence motion on his behalf. The notice of appeal also was ill-advised: the unschooled appellee did not realize that he had to preserve sentencing claims by filing a post-sentence motion. Moreover, it was a complicating pro se filing by a defendant with appointed counsel of record, and instigated various procedural problems that are endemic to hybrid representation, and because of which such representation is not permitted. See Ellis, supra. But the prescribed procedure, designed to avoid the confusing result of pro se filings by represented criminal defendants, was not followed.
Under the circumstances of this case, where the trial court ruled on the appellee’s post-sentence motion and thus entered a final appealable order, we view the pro se appeal as merely premature, duplicative of the later counseled appeal, and subject to withdrawal or quashal on those grounds. But, contrary to the Superior Court panel’s determination, it definitely was not a “nullity,” especially once the counseled appeal was dismissed. The proper way to view the pro se appeal, after the counseled appeal was dismissed, is as a premature
This result squares with this Court’s overall treatment of appeals that are merely premature. Although Criminal Rule 720 does not expressly apply to these precise facts, the Explanatory Comments reflect the recognition of the common
Here, appellee was sentenced and filed a snap pro se notice of appeal. Subsequently, his counsel filed a timely post-sentence motion, which was denied, and then a second timely notice of appeal. The merely premature pro se appeal did not divest the trial court of jurisdiction to act upon the timely post-sentence motion later filed by appellee’s own counsel in accordance with Criminal Rule 720(A). Once the motion was decided, the thirty day appeal clock was triggered. Pa. R.Crim.P. 720, cmt., Timing (“When a defendant files a timely post-sentence motion, the 30-day period for the defendant’s direct appeal ... is triggered by the trial judge’s decision on the post-sentence motion”). Under the circumstances, where the proper, counseled appeal was quashed administratively,
For the foregoing reasons, we hold that the Superior Court erred in quashing the appeal and remanding to the trial court for further consideration of appellee’s counseled post-sentencing motions. We therefore vacate the order below and remand to the Superior Court for consideration of the merits of appellee’s direct appeal from the VOP judgment of sentence.
Jurisdiction relinquished.
. Since April 2000, appellee was represented in trial court proceedings by the Defender Association of Philadelphia.
. Appellee did not serve his counsel with the notice of appeal, though he did serve the District Attorney’s Office. There is no indication that the clerk of courts sent a copy of the notice of appeal to defense counsel in accordance with Pa.R.Crim.P. 576(A)(4) (in any case in which a defendant is represented by an attorney, if the defendant submits for filing a document that has not been signed by the attorney, the clerk shall accept it for filing and forward a copy to counsel).
. In addition to the pro se notice of appeal filed on March 31, 2008, appellant made other pro se filings on April 11, 2008, including a
. Despite the filing of two notices of appeal to the Superior Court and Judge Means’s April 10, 2008 order denying appellee’s counseled post-sentence motion, the trial court docket reflects that a “hearing notice” was issued on June 9, 2008. It is not clear from the docket whether any hearing was held, or whether the notice pertained to the already-denied post-sentence motion.
. Judge Means addressed only the claims raised in the Rule 1925(b) statement filed by counsel. Judge Means did not address the pro se filings by appellee in response to the Rule 1925(b) order.
. Rule 720's Explanatory Comment provides:
*444 Given that the Commonwealth has 10 days to file a motion to modify sentence under Rule 721(B)(1), it is possible that the defendant might elect to file a notice of appeal under Rule 720(A)(3) followed by the Commonwealth's filing a timely motion to modify sentence. When this occurs, the defendant’s notice of appeal is rendered premature, because the entry of the order disposing of the Commonwealth’s motion to modify sentence then becomes the triggering device for the defendant’s notice of appeal. In this situation, counsel for the defendant should be aware that Pa.R.A.P. 905(a) addresses this problem. In response to an extensive history of appeals that were quashed because of the premature filing of the notice of appeal, the last sentence of Pa.R.A.P. 905(a) was drafted to create a legal fiction that treats a premature notice of appeal as filed after the entry of the appealable order.
Pa.R.Crim.P. 720, cmt., Miscellaneous (emphasis in original).
. Criminal Rule 721 provides that the "Commonwealth may challenge a sentence by filing a motion to modify sentence, by filing an appeal on a preserved issue, or by filing a motion to modify sentence followed by an appeal.” Pa.R.Crim.P. 721(A)(1).
. The Explanatory Comment to Rule 721 states:
*445 Given that a defendant has 10 days to file a post-sentence motion under Rule 720(A)(1), it is possible that the Commonwealth might file a notice of appeal under paragraph (B)(2)(a)(ii) followed, by the defendant’s filing a timely post-sentence motion. When this occurs, the Commonwealth's notice of appeal is rendered premature, because it is the entry of the order disposing of the defendant’s post-sentence motion that becomes the triggering device for the Commonwealth’s notice of appeal. In this situation, counsel for the Commonwealth should be aware that Pa.R.A.P. 905(a) addresses this problem. In response to an extensive history of appeals which were quashed because of the premature filing of the notice of appeal, the last sentence of Pa.R.A.P. 905(a) was drafted to create a legal fiction that treats a premature notice of appeal as filed after the entry of the appealable order.
Pa.R.Crim.P. 721, cmt., No Commonwealth Motion to Modify Sentence Filed (emphasis in original). As we discuss infra, the comments to Criminal Rules 720 and 721 indicate that, in certain situations addressed by those Rules, the premature appeal should not be quashed. See, e.g., Pa.R.A.P. 905(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); K.H. v. J.R., 573 Pa. 481, 826 A.2d 863, 872 (2003) (appeal from order denying post-trial motions is interlocutory, but where judgment is subsequently entered, premature appeal is treated as filed after final order).
. We note that, by its placement in the Appellate Rules under Chapter 33 ("Business of the Supreme Court”), Rule 3304 governs filings in the Supreme Court only. However, the disapproval of hybrid representation is effective at all levels. See Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137, 1139 (1993) (criminal defendant has no right to hybrid representation in either trial or appellate courts). Criminal Rule 576(A)(4) addresses hybrid representation before the courts of common pleas, mandating that the pro se filing be received and docketed, but then forwarded to counsel: "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” and send a copy to the attorneys of record in the case. The Superior Court’s Internal Operating Procedures, likewise direct that the pro se filing be docketed and then forwarded to counsel. Pa.Super. I.O.P. § 65.24.
. Appellee’s argument on this point does not account for the fact that the trial court here did not grant reconsideration, and indeed denied his post-sentence motion on April 10, 2008, before purporting to grant
. Appellee’s claim regarding the continuing validity of the April 18 counseled appeal is undermined by his simultaneous argument that the
. Alternatively, the Superior Court prothonotary could have assigned the second, timely, counseled appeal to a panel for decision, and administratively dismissed appellee’s pro se, hybrid notice of appeal. Or, the two appeals could have been consolidated. See Pa.R.A.P. 513 (where there is more than one appeal from the same order, the appellate court may order that they be argued together).
. Of course, we recognize that the panel’s decision to quash and remand may have been influenced by its awareness of the trial judge’s intention to subsequently grant reconsideration sua sponte and significantly reduce appellee's VOP sentence. Irrespective of the Superior Court's intentions, as we explain below, the panel’s determination that the "premature” appeal was also somehow void is erroneous. If the reconsideration represented by the trial court’s second thoughts is a basis for appellate relief and resentencing, it should derive from the merits of the appeal, and not the unexplained procedural circumstances.
. Moreover, Appellate Rule 1701(b)(3) did not authorize the trial court to grant reconsideration when it purported to do so on July 16, 2008. Appellee’s post-sentence motion was denied on April 10, 2008, there was no additional motion filed in the trial court, and any further reconsideration was foreclosed after 30 days in any event. See Pa. R.A.P. 1701 (b)(3)(i)-(ii).
. The Comment to Criminal Rule 576(A)(4) indicates that "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.” The dissent relies on this disclaimer regarding the legal import of the pro se filing as further support for viewing it as a nullity, but, in this case, the clerk’s failure to comply with the Rule's mandate that the pro se filing be forwarded to counsel undermines that position. The dissent perceives our view of the Rule’s requirement as overburdening the trial court with a duty to "scrutinize such filings for after-the-fact significance,” Dissenting Op. at 465, 27 A.3d at 1011, but it provides instead a minimally burdensome safeguard to prevent the very confusion that arose here in its breach.
. The trial court issued its 1925(b) order in response to the pro se notice of appeal, further undermining the dissent's view that the filing was unconditionally void, and that the trial court could easily discern its hybrid nature at that time.
. We reject the Commonwealth’s argument, based on the language of Pa.R.A.P. 3304, that the restrictions on hybrid representation do not apply to pro se notices of appeal. Appellate Rule 3304 applies to filings in this Court only. The relevant rule in this instance is actually Pa.R.Crim.P. 576(A)(4), which expressly applies to a "notice” filed pro se in the trial court by a counseled defendant.
. The dissent views these errors as a breakdown in the court’s operations that might have warranted a nunc pro tunc appeal, Dissenting Op.
. The dissent takes issue with our conclusion that the pro se notice of appeal was not automatically a legal nullity but rather a premature filing, opining that this conclusion is in conflict with Commonwealth v. Piscanio, 530 Pa. 293, 608 A.2d 1027 (1992). In Piscanio, a represented defendant filed a pro se notice of appeal from the denial of bail. While the appeal on the bail issue was pending, the defendant was tried and convicted on charges relating to passing bad checks. The question before the Court was whether the trial court could proceed with trial on the merits after the defendant filed his pro se notice of appeal of the bail question, despite Rule 1701. The Court concluded that, because the subject matter of the appeal was distinct from the charges for which the defendant was tried, Rule 1701 did not divest the trial court of jurisdiction.
Respectfully, we believe that Piscanio is distinguishable from this case for several reasons. First, the legal nullity language relied upon by the Dissent was not part of the holding in Piscanio, but rather confined to a footnote noting that the defendant was never granted leave to proceed pro se; therefore, his pro se notice of appeal from the denial of bail was deemed a legal nullity. Second, the criminal proceedings.in Piscanio were ongoing, and the fact of the defendant's continued representation by counsel apparently was clear. This case involves a notice of appeal from a final judgment of sentence. Given that our cases have recognized that a criminal defendant has a right to self-representation on appeal, see Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998); but see Commonwealth v. Staton, 608 Pa. 404, 12 A.3d 277 (2010) (noting that federal constitution does not recognize such a right), the fact of counsel's continued representation is not automatic. This is particularly so in the case of retained counsel. Finally, an appeal from the denial of bail is interlocutory (and collateral to the main issues at trial), while an appeal from a judgment of sentence is not. The factual context of this unusual case supports our determination that the pro se appeal here was merely premature, rather than automatically void. The dissent's reference to Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282 (2010), where the pro se appeal was filed while appellant was clearly represented on appeal, is also inapposite, in our view.