J-S15022-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RUSSELL A. WALLERY,

Appellant No. 3243 EDA 2014

Appeal from the PCRA Order of October 22, 2014

In the Court of Common Pleas of Northampton County

Criminal Division at No(s): CP-48-CR-0001596-2009

BEFORE: BENDER, P.J.E., OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.: FILED MARCH 07, 2016

Appellant, Russell A. Wallery, appeals from the order entered on 

October 22, 2014, dismissing his first petition pursuant to the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We remand for 

the filing of a counseled concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b).

The PCRA court briefly summarized the facts and procedural history of 

this case as follows:

On July 16, 2010, [Appellant] was convicted by a jury of his 

peers [of] one count of rape of a child (18 Pa.C.S.A. 

§ 3121(c)); one count of involuntary deviate sexual 

intercourse (18 Pa.C.S.A. § 2123(a)(7)); one count of 

indecent assault (18 Pa.C.S.A. § 3126(a)(7)); and one 

count of corruption of minors (18 Pa.C.S.A. § 6301(a)(1)), 

in connection with allegations of sexual contact with the 

minor daughter of his live-in companion. Subsequent to the 

verdict, [Appellant] was evaluated by a member of the 

Sexual Offender Assessment Board, and on October 14, 
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2010, a hearing was held ... [and, upon] consideration of 

the evidence presented, the [trial] court adjudged 

[Appellant] a sexually violent predator. Thereafter, he was 

sentenced for his crimes to an aggregate term of 

twenty-seven (27) to fifty-four (54) years of imprisonment. 

[Appellant] filed timely post-sentence motions on October 

22, 2010. The [trial] court entered an order denying the 

motions on February 21, 2011. On March 18, 2011, 

[Appellant] appealed [his judgment of sentence]. [We] 

issued a ruling on June 19, 2012, [affirming Appellant’s] 

convictions on all charges[.] However, [we] vacated and 

remanded the sentence of twelve (12) to twenty-four (24) 

years [of imprisonment] on the charge of involuntary 

deviate sexual intercourse (“IDSI”) for the purpose of 

allowing [the trial] court to place its reasons for the 

aggravated sentence on the record.

The [trial] court held a resentencing hearing as to the IDSI 

charge on August 17, 2012 at which time the [trial] court 

imposed the same sentence of twelve (12) to twenty-four 

(24) years [of imprisonment] upon [Appellant], stating its 

reasons on the record. On August 27, 2012, [Appellant] 

filed [for reconsideration], which [the trial] court denied by 

an order entered on October 5, 2012. 

On August 14, 2013, [Appellant] filed a pro se petition for 

[PCRA relief]. Upon receipt of the petition, the [PCRA] court 

appointed counsel to represent [Appellant]. Attendant with 

that appointment, counsel sought and obtained certain 

records in furtherance of [Appellant’s] claims, which 

required that the hearing on [Appellant’s] petition be 

continued several times. A hearing was ultimately held on 

June 24, 2014. Contemporaneously with the date of the 

hearing, [Appellant] filed a supplemental PCRA petition 

through counsel for the purpose of more fully setting forth 

the issues raised during the hearing. On October 22, 2014, 

the [PCRA] court denied [Appellant’s] PCRA petition[.] 

PCRA Court Opinion, 1/13/2015, at 1-2 (superfluous capitalization omitted). 
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Thereafter, on November 14, 2014, Appellant filed a pro se notice of 

appeal, despite still being represented by counsel.1 The trial court docket 

indicates that the clerk of courts forwarded a copy of the pro se notice of 

appeal to Appellant’s counsel of record.2 Appointed PCRA counsel took no 

further action. Subsequently, on November 20, 2014, the PCRA court 

entered an order pursuant to Pa.R.A.P. 1925(b) directing Appellant to file a 

concise statement of errors complained of on appeal within 21 days. The 

docket reflects that the PCRA court sent the Rule 1925(b) order directly to 

Appellant, but not to appointed counsel. Appellant then filed a pro se Rule 

1925(b) statement that was timely under the prisoner mailbox rule.3 The 

docket reflects that appointed counsel did not receive a copy of the pro se

Rule 1925(b) statement. The PCRA court issued an opinion pursuant to 

Pa.R.A.P. 1925(a) on January 13, 2015. 

____________________________________________

1

 There is no indication that appointed PCRA counsel ever sought to 

withdraw.

2 As discussed at length infra, our Prothonotary entered a per curiam order 

directing the PCRA court to explain Appellant’s representation status, 

because while Appellant proceeded pro se, counsel of record had not been 

permitted to withdraw. That per curiam order states, “there is no indication 

on the docket that the PCRA court forwarded Appellant’s pro se notice of 

appeal” to counsel of record. See Order, 6/23/2015, at 1 (unpaginated). 

However, upon closer inspection of the PCRA court’s docket, there is a

notation indicating that notice of appeal was sent to counsel. See

Northhampton County Criminal Docket #CP-48-CR-0001596-2009, at 23.

3

 “Under the prisoner mailbox rule, we deem a pro se document filed on 

the date it is placed in the hands of prison authorities for mailing.” See

Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011). 
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On January 20, 2015, our Prothonotary issued a briefing schedule. On 

March 2, 2015, April 16, 2015, and June 15, 2015, Appellant submitted pro 

se requests for extensions to file his appellate brief. We granted the first 

two extension requests. With regard to the third request, Appellant averred 

he may be represented by counsel. Accordingly, our Prothonotary entered a 

per curiam order on June 23, 2015, directing the PCRA court to explain the 

status of Appellant’s representation within 14 days. In that per curiam 

order, this Court recognized that PCRA counsel was listed as Appellant’s 

counsel of record and there was no indication that he received permission to 

withdraw. We further noted, as explained above, that the PCRA court 

directed its Pa.R.A.P. 1925(b) statement to Appellant and Appellant 

subsequently filed a pro se Rule 1925(b) statement. Further, while the 

PCRA court’s January 2015 Rule 1925(a) opinion states Appellant sought 

new appellate counsel, the court accepted the request, and entered a 

separate order of court making a new appointment, no such documentation 

appears in the certified record. Thus, we ordered the PCRA court to notify 

our Prothonotary, in writing, of Appellant’s representation status within 14 

days. Thereafter, pursuant to the order of our Prothonotary, on June 26, 

2015, the PCRA court entered an order removing prior PCRA counsel and 

appointing Tyree Blair, Esquire, as new counsel for Appellant. That order 

was filed with this Court on July 2, 2015. Subsequently, on November 25, 

2015, Attorney Blair filed a brief on behalf of Appellant with this Court, 
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presenting issues related solely to original PCRA counsel’s alleged 

ineffectiveness.

“Our standard of review of an order granting or denying relief under 

the PCRA requires us to determine whether the decision of the PCRA court is 

supported by the evidence of record and is free of legal error.” 

Commonwealth v. Melendez-Negron, 123 A.3d 1087, 1090 (Pa. Super. 

2015). 

Here, we conclude the PCRA court erred by accepting Appellant’s pro 

se Rule 1925(b) statement while he was still represented by counsel and 

compounded its error by issuing a subsequent Rule 1925(a) opinion based 

upon the pro se filing. Our Supreme Court recently stated:

What our jurisprudence has consistently prohibited at both 

trial and appellate levels when strategic disagreements arise 

between defendant and counsel is the option of hybrid 

representation, where an otherwise represented defendant 

acts as de facto co-counsel exercising control over parts of 

the defense. [See Commonwealth v. Ellis, 626 A.2d 1137 

(Pa. 1993)] (holding there is no right to hybrid 

representation on appeal); cf Commonwealth v. Cooper,

27 A.3d 994, 1000 (Pa. 2011) (upholding court's decision to 

acknowledge and give force to a pro se filing from a 

counseled defendant where it dovetailed with counsel's 

strategy and where counsel ultimately adopted it)[;] See 

also Pennsylvania Rule of Appellate Procedure 3304. Hybrid 

Representation [(“Where 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.”)] The purpose behind the policy is to promote 

efficiency in representation and to avoid conflicting 

strategies in the defense. Id. In the event a represented 

defendant presents a pro se pleading, motion, or filing to 

the court, therefore, the court shall not entertain it but 
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shall, instead, forward it to counsel who may then decide 

whether to act on the defendant's concern. Ellis, supra.

Commonwealth v. Mason, 2015 WL 9485173, at *49 (Pa. 2015) (footnote 

incorporated) (emphasis supplied). “Generally, pro se filings by a defendant 

who at the time of filing is represented by counsel are considered legal 

nullities.” Commonwealth v. Leatherby, 116 A.3d 73, 86 (Pa. Super. 

2015) (citation omitted). “[Because] [A]ppellant was represented by 

counsel on appeal, [] his pro se Rule 1925(b) statement was a legal nullity.” 

Commonwealth v. Ali, 10 A.3d 282, 293, (Pa. 2010), citing

Commonwealth v. Ellis, 626 A.2d 1137, 1139, 1141 (Pa. 1993).

Here, Appellant was still represented by PCRA counsel at the time he 

filed his pro se Rule 1925(b) statement.4 Thus, the pro se filing was a legal 

nullity. Accordingly, we are constrained to remand this case and its record 

____________________________________________

4

 We also recognize that Appellant was represented by counsel when he 

filed his pro se notice of appeal. However, the pro se notice of appeal was 

forwarded to PCRA counsel who, in turn, did nothing further. We find, 

therefore, the pro se filing does not offend the rule prohibiting hybrid 

representation, because PCRA counsel effectively abandoned Appellant. See 

Leatherby, 116 A.3d at 79 (“Leatherby was effectively abandoned by 

counsel and the trial court failed to timely appoint new counsel, Leatherby's 

pro se filing does not offend considerations of hybrid representation.”). 

“[An appellant] should not be precluded from appellate review based on 

what was, in effect, an administrative breakdown on the part of the trial 

court.” Id. Thus, we conclude that Appellant preserved his appellate rights 

by filing a pro se notice of appeal, despite his representation. “To conclude 

otherwise would result in a miscarriage of justice.” Id., citing Chartiers 

Valley Industrial & Commercial Dev. Authority v. City of Pittsburgh,

569 A.2d 405 (Pa. Cmwlth. 1990) (where breakdown in court processes 

interferes with post trial proceedings resulting in the expiration of the period

for appeal, justice requires appellate review of the merits so as not to 

unjustly penalize appellant for circumstances beyond its control).
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to the PCRA court for the filing of a counseled Rule 1925(b) statement. 

Hence, we direct appointed counsel, Tyree Blair, Esquire to file a counseled 

Rule 1925(b) statement with the PCRA court within 30 days of the date of 

this order. Once counsel files a new Rule 1925(b) statement, the PCRA 

court has 30 days from the date of that filing to issue a Rule 1925(a) 

opinion. Thereafter, upon return of the record to this Court, we direct our 

Prothonotary to establish a new briefing schedule. 

Case and record remanded for filings consistent with this 

memorandum. Jurisdiction retained. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/7/2016