J-S23033-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

*Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA, 

 Appellee

v.

DAVID JULIUS PRICE, SR.,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1647 EDA 2014

Appeal from the Judgment of Sentence Entered April 30, 2014, 

in the Court of Common Pleas of Delaware County, 

Criminal Division, at No(s): CP-23-CR-0006350-2013

BEFORE: DONOHUE, SHOGAN, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 11, 2015

David Julius Price, Sr. (Appellant) appeals from the judgment of 

sentence entered April 30, 2014, following his guilty plea to one count of 

driving under the influence of alcohol (DUI) - highest rate of alcohol - third 

offense, three counts of recklessly endangering another person, and one 

count of driving while operating privilege was suspended or revoked. 

Counsel for Appellant has filed a petition to withdraw and brief pursuant to 

Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. 

Santiago, 978 A.2d 349, 361 (Pa. 2009). Upon review, we deny counsel’s 

petition to withdraw and order counsel to file a supplemental brief. 

Appellant was arrested and charged with various offenses following an 

incident that occurred on September 18, 2013. On March 3, 2014, Appellant 

entered into an open guilty plea to the aforementioned charges. On April 
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20, 2014, Appellant was sentenced to an aggregate term of 2 to 11 years’ 

incarceration. No post-sentence motion was filed. Appellant filed a pro se 

notice of appeal. The trial court forwarded this notice to Appellant’s counsel 

of record and directed counsel to file a statement of errors complained of on 

appeal.1 Counsel complied with the court’s directive by filing notice of his 

intent to file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4).

 

1 Appellant was sentenced on April 20, 2014, and had 30 days, or until May 

30, 2014, to file a timely notice of appeal. Appellant’s notice of appeal was 

entered on the docket on June 3, 2014. 

“[I]n the interest of fairness, the prisoner mailbox rule provides that a 

pro se prisoner’s document is deemed filed on the date he delivers it to 

prison authorities for mailing.” Commonwealth v. Chambers, 35 A.3d 34, 

38 (Pa. Super. 2011). The rule allows this Court “to accept any reasonably 

verifiable evidence of the date that the prisoner deposits the appeal with the 

prison authorities....” Commonwealth v. Perez, 799 A.2d 848, 851 (Pa. 

Super. 2002). 

Instantly, the certificate of service attached to Appellant’s notice of 

appeal is dated May 27, 2014, which arguably supports a conclusion that 

Appellant’s appeal was timely filed under the prisoner mailbox rule. 

However, the envelope containing the notice is postmarked June 2, 2014. 

Nonetheless, there is nothing of record that would indicate that Appellant did 

not place the document in the hands of prison authorities on May 27, 2014, 

or shortly thereafter. 

However, pursuant to well-established Pennsylvania law, a defendant 

is not entitled to hybrid representation. See Commonwealth v. Ellis, 626 

A.2d 1137, 1141 (Pa. 1993) (a defendant does not have the constitutional 

right of self-representation together with counseled representation at the 

trial or appellate level); see also Commonwealth v. Jette, 23 A.3d 1032, 

1036 (Pa. 2011) (citing Pennsylvania’s long-standing policy that precludes 

hybrid representation). Additionally, Rule 120(A)(4) of the Rules of Criminal 

Procedure states that an “[a]n attorney who has been retained . . . shall 

continue such representation through direct appeal or until granted leave to 
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withdraw by the court pursuant to paragraph (B).” Pa.R.Crim.P. 120(A)(4). 

Paragraph (B) of that rule states that “[c]ounsel for a defendant may not 

withdraw his or her appearance except by leave of court.” Pa.R.Crim.P. 

120(B)(1).

Here, the record demonstrates that trial counsel was still counsel of 

record at the time Appellant filed his pro se notice of appeal. Despite his 

claim in his motion to withdraw that his representation of Appellant “did not 

include taking an appeal” to this Court, Petition to Withdraw As Counsel, 

6/9/2014, at ¶ 2, counsel did not move to withdraw at any point prior to 

Appellant’s pro se filing. Moreover, Appellant did not request leave to 

proceed pro se, nor did he request that plea counsel withdraw. Pursuant to 

the Rules of Criminal Procedure outlined above, it was improper for him to 

file a pro se notice of appeal with the trial court. The above errors 

notwithstanding, we decline to quash this appeal.

We further note that, although Appellant filed his notice of appeal pro 

se while ostensibly represented by counsel, that does not deprive this Court 

of jurisdiction to hear Appellant’s claims. Generally, our courts will not 

entertain pro se filings while an appellant remains represented, and such 

filings have been described as legal nullities. See Commonwealth v. Ali, 

10 A.3d 282, 293 (Pa. 2010). However, pro se notices of appeal present a 

special case. In Commonwealth v. Cooper, 27 A.3d 994 (Pa. 2011), our 

Supreme Court held that a pro se notice of appeal, filed while Cooper was 

represented by counsel, was not automatically a legal nullity, but was simply 

“premature.” Id. at 1007. Admittedly, Cooper was a case with a unique 

procedural history that can be distinguished from that of the instant matter. 

Nonetheless, this Court and our Supreme Court have faced pro se notices of

appeal filed by represented appellants both before and after Cooper, and we 

have not considered this defect to be fatal. See, e.g., Commonwealth v. 

Wilson, 67 A.3d 736, 738 (Pa. 2013) (explaining that “[Wilson] filed a pro 

se notice of appeal; it is not clear why his court-appointed counsel did not 

file the notice,” and proceeding to review the merits of Wilson’s case without 

further discussion); Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa. 

Super. 2009) (remanding for a Grazier hearing where, after the denial of 

Robinson’s counseled petition pursuant to the Post Conviction Relief Act, 

Robinson filed a timely pro se appeal, and a petition requesting that he be 

allowed to proceed pro se, and the PCRA court entered an order permitting 

counsel to withdraw). Thus, we will not treat Appellant’s pro se notice of 

appeal as a nullity.
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On February 10, 2015, Appellant’s counsel filed with this Court a 

petition to withdraw as counsel and an Anders brief. As a preliminary 

matter, we address counsel’s application to withdraw before reaching the 

merits of the issues raised in the brief. Commonwealth v. Rojas, 874 

A.2d 638, 639 (Pa. Super. 2005) (quoting Commonwealth v. Smith, 700 

A.2d 1301, 1303 (Pa. Super. 1997)) (“When faced with a purported Anders

brief, this Court may not review the merits of the underlying issues without 

first passing on the request to withdraw.”).

To withdraw pursuant to Anders, counsel must: 1) petition the Court 

for leave to withdraw, certifying that after a thorough review of the record, 

counsel has concluded the issues to be raised are wholly frivolous; 2) file a 

brief referring to anything in the record that might arguably support the 

appeal; and 3) furnish a copy of the brief to the appellant and advise him or 

her of the right to obtain new counsel or file a pro se brief to raise any 

additional points that the appellant deems worthy of review. 

Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010). 

Thereafter, this Court independently reviews the record and issues. Id.

Our Supreme Court has explained that, in an Anders brief, counsel 

seeking to withdraw must:

(1) provide a summary of the procedural history and facts, with 

citations to the record; (2) refer to anything in the record that 

counsel believes arguably supports the appeal; (3) set forth 

counsel’s conclusion that the appeal is frivolous; and (4) state 
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counsel’s reasons for concluding that the appeal is frivolous. 

Counsel should articulate the relevant facts of record, controlling 

case law, and/or statutes on point that have led to the 

conclusion that the appeal is frivolous.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

Here, counsel for Appellant states one issue of arguable merit: 

whether Appellant’s sentence of 2 to 11 years’ incarceration is harsh or 

excessive. Appellant’s Brief at 3. However, counsel’s conclusion that this 

argument is frivolous, because “the Superior Court has no authority to 

permit a challenge to the discretionary aspects of sentence” following the 

entry of an open guilty plea, is a clear misstatement of the law. See e.g.

Commonwealth v. Tirado, 870 A.2d 362, 368 n. 5 (2005) (noting that

“while a guilty plea which includes sentence negotiation ordinarily precludes 

a defendant from contesting the validity of his or her sentence other than to 

argue that the sentence is illegal or that the sentencing court did not have 

jurisdiction, open plea agreements are an exception in which a defendant 

will not be precluded from appealing the discretionary aspects of the 

sentence.”) (emphasis in original). Complicating the issue is counsel’s 

failure to file a separate Pa.R.A.P. 2119(f) statement stating the reasons 

relied upon for allowance of this appeal, and his failure to indicate, or even 
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mention, whether Appellant’s sentencing issue presented a substantial 

question for our review.2

In Santiago, our Supreme Court explained why it is important that 

counsel articulate her reasons for concluding that an appeal is frivolous.

We are persuaded that requiring counsel to articulate the 

basis for his or her conclusion of frivolity will advance the twin 

functions counsel's Anders brief is to serve, i.e., it will assist the 

intermediate appellate courts in determining whether counsel 

has conducted a thorough and diligent review of the case to 

discover appealable issues and whether the appeal is indeed 

frivolous. In this context, we believe that there is real value in 

putting pen to paper. As the United States Supreme Court has 

noted, the task of articulating reasons can shed new light on 

what may at first appear to be an open-and-shut issue. It can 

also reveal to counsel previously unrecognized aspects of the 

record or the law and thereby provide a safeguard against a 

hastily-drawn or mistaken conclusion of frivolity. In addition, we 

believe that it is often the case that the basis for an attorney's 

 

2

It is well settled that, with regard to the discretionary aspects of 

sentencing, there is no automatic right to appeal.

Before [this Court may] reach the merits of [a challenge to 

the discretionary aspects of a sentence], we must engage 

in a four part analysis to determine: (1) whether the 

appeal is timely [filed]; (2) whether Appellant preserved 

his issue; (3) whether Appellant’s brief includes a concise 

statement of the reasons relied upon for allowance of 

appeal with respect to the discretionary aspects of 

sentence; and (4) whether the concise statement raises a 

substantial question that the sentence is appropriate under 

the sentencing code.... [I]f the appeal satisfies each of 

these four requirements, we will then proceed to decide 

the substantive merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations 

omitted).
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opinion that an appeal is frivolous is not readily apparent, and 

that accordingly, counsel's explanation will significantly assist 

the courts in passing upon the soundness of counsel's 

conclusion, which, in turn, vindicates the right to counsel.

Id. at 360-61 (citations omitted). 

Instantly, absent any attempt by counsel to meet this requirement, we 

conclude that his brief does not comply substantially with Santiago. As a 

result, we deny counsel’s petition to withdraw without prejudice. Counsel 

shall file either an advocate’s brief or a supplemental Anders brief within 30 

days of the date of this memorandum.

Petition to withdraw as counsel denied. Case remanded with 

instructions. Panel jurisdiction retained. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/11/2015
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