J-S36008-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SCOTT NEWTON KERNS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1602 MDA 2018

Appeal from the Order Entered August 27, 2018

In the Court of Common Pleas of Berks County 

Criminal Division at No(s): CP-06-CR-0002858-2016

BEFORE: PANELLA, P.J., SHOGAN, J., and PELLEGRINI, J.*

MEMORANDUM BY PANELLA, P.J.: FILED NOVEMBER 07, 2019

Scott Newton Kerns appeals from the order entered in the Berks County 

Court of Common Pleas on August 27, 2018, which denied his post-sentence 

motion as untimely.

1 Additionally, Kerns’s court appointed counsel, John A. 

Fielding, III, Esquire, seeks to withdraw pursuant to Anders v. California, 

386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 

2009). Kerns has also filed an application with this Court requesting that the 

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* Retired Senior Judge assigned to the Superior Court.

1

In the notice of appeal, counsel additionally attempts to appeal from the 

judgment of sentence entered on September 30, 2016. Kerns’ judgment of 

sentence became final on October 30, 2016, after neither a timely postsentence motion nor a timely direct appeal was filed. Therefore, we only 

address the appeal from the August 27, 2018 order, as a direct appeal is not 

cognizable at this time. 
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appeal be remanded “to start again” with Kerns representing himself. We 

vacate the order denying Kerns’ motion as untimely and remand for further 

proceedings consistent with this memorandum. In addition, we grant counsel 

permission to withdraw, and deny Kerns’s application for remand as moot. 

In 2002, Kerns pled guilty to involuntary deviant sexual intercourse and 

was sentenced to seven and one-half to twenty years’ incarceration.

2

In 2007, 

he filed a civil lawsuit against the victim, accusing her of perjury and filing a 

false police report against Kerns. The case was dismissed. In 2015, Kerns 

again filed a civil lawsuit against the victim, raising the same issues. He was 

subsequently charged with unsworn falsification to authorities and barratry. 

On September 30, 2016, in the instant action, Kerns was convicted of 

barratry. He was sentenced the same day to six to twelve months’ 

incarceration, to be served consecutive to his 2002 sentence. On October 11, 

2016, Kerns filed a pro se motion for acquittal or modification of sentence. 

The trial court denied the pro se motion due to Kerns being represented by 

counsel3 and further finding the motion untimely. Kerns filed a pro se notice 

of appeal to this Court, which was subsequently withdrawn by counsel. 

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2 CP-06-CR-371-2001

3 There is no right to hybrid representation. Commonwealth v. Jette, 23 

A.3d 1032, 1036 (Pa. 2011). “When a counseled defendant files a pro se 

document, it is noted on the docket and forwarded to counsel pursuant to 

Pa.R.Crim.P. 576(A)(4), but no further action is to be taken.” 

Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super. 2016). 
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On March 16, 2017, Kerns filed a Motion to Open, Vacate 

Order/Sentence Pursuant to 42 Pa.C.S.A. § 5505 and to Proceed Pro Se. On 

August 24, 2017, a hearing was held on the Motion, during which Kerns was 

represented by newly appointed Attorney Fielding.

4

On February 2, 2018, Kerns filed a pro se notice of appeal arguing the 

trial court had failed to issue a final order either granting or dismissing the 

Motion. This Court issued a rule to show cause why the appeal should not be 

dismissed as interlocutory, since the trial court had not yet ruled on the

Motion. After receiving no response, this Court quashed the appeal and 

remanded to the trial court to consider whether the Motion was a postsentence motion or a PCRA petition, to address the merits if any, and for entry 

of a final order from which an appeal could be taken. The trial court entered 

an order characterizing the Motion as a post-sentence motion and denying it

as untimely. Counsel filed a notice of appeal.

5

 

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4 Both parties were given the opportunity to file a memorandum of law prior 

to the court issuing a decision. The Commonwealth filed a brief in which they 

argued the Motion should be denied as an untimely post-sentence motion and 

that it could not alternatively be considered a timely PCRA petition because it 

did not raise a cognizable claim. Attorney Fielding did not file a response. 

5 Kerns also filed a pro se notice of appeal. We dismissed the appeal after 

receiving no response to show cause why his appeal should not be dismissed 

as duplicative of the instant appeal. 
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In response to multiple pro se filings received from Kerns6 and a petition 

to withdraw filed by Attorney Fielding7, the trial court subsequently issued an 

order requiring a Grazier8 hearing within thirty days. A timely hearing was 

held on December 21, 2018,

9 during which Attorney Fielding stated his intent 

to file an Anders brief. Kerns agreed to continue with representation by 

Attorney Fielding with the understanding that he would have the right to 

respond after the Anders brief was filed. 

On February 7, 2019, having not yet received an Anders brief from 

counsel, the trial court filed a statement in lieu of opinion urging this Court to 

dismiss the appeal. 

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6 Kerns sent two letters to the court and one letter to counsel, attempting to 

“fire” Attorney Fielding. These letters were noted on the docket and forwarded 

to counsel pursuant to Pa.R.A.P. 3304. See Jette Letter (1), 12/4/2018.

7 On December 3, 2018, prior to receiving the January 4, 2018 Jette letter, 

Attorney Fielding filed a petition to withdraw as counsel.

8 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).

9 On the same date, Kerns filed a pro se notice to the court asking for Attorney 

Fielding to be removed as counsel, to proceed pro se, and to be given all 

paperwork on his case. The trial court denied this application for relief as moot 

due to the outcome of the Grazier hearing.

 
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On May 3, 2019, Attorney Fielding filed an Anders brief.10 He was 

directed to file a proper petition to withdraw, which he filed the same day. 

Kerns has not filed a response. 

We turn first to counsel’s petition to withdraw. To withdraw pursuant to 

Anders, counsel must:

1) petition the court for leave to withdraw stating that, after 

making a conscientious examination of the record, counsel has 

determined that the appeal would be frivolous; 2) furnish a copy 

of the [Anders] brief to the [appellant]; and 3) advise the 

[appellant] that he or she has the right to retain private counsel 

or raise additional arguments that the [appellant] deems worthy 

of the court’s attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en 

banc) (citation omitted). With respect to the third requirement of Anders, 

that counsel inform the appellant of his or her rights in light of counsel’s 

withdrawal, this Court has held that counsel must “attach to their petition to 

withdraw a copy of the letter sent to their client advising him or her of their 

rights.” Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).

An Anders brief must comply with the following requirements:

(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 

counsel’s reasons for concluding that the appeal is frivolous. 

Counsel should articulate the relevant facts of record, controlling 

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10 In the meantime, Kerns had attempted to file two more documents, 

including a pro se appellant’s brief. These documents, dated March 25, 2019, 

were again forwarded to Attorney Fielding. See Jette Letter (2), 4/2/2019. 
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case law, and/or statutes on point that have led to the conclusion 

that the appeal is frivolous.

Santiago, 978 A.2d at 361. 

“[I]f counsel’s petition and brief satisfy Anders, we will then undertake 

our own review of the appeal to determine if it is wholly frivolous.” 

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (brackets 

added, citation omitted). 

Attorney Fielding filed a petition to withdraw, certifying he has reviewed 

the case and determined that Kerns’ appeal is frivolous. Further, Attorney 

Fielding attached to his petition a copy of his letter to Kerns, advising that he 

may retain new counsel, raise additional issues pro se, or discontinue his 

appeal. Attorney Fielding also filed a brief, which includes a summary of the 

history and facts of the case, potential issues that could be raised by Kerns, 

and his assessment of why those issues are meritless, with citations to 

relevant legal authority. 

Attorney Fielding has thus complied with the preliminary requirements 

of Anders and Santiago. Kerns has not filed a response. 

Before we examine the substance of Kerns’ appeal, we must determine

what order Kerns is appealing. To determine the appropriate order on appeal, 

we must ascertain which of Kerns’ post-trial filings was valid, an issue that 

intrinsically revolves around representation. The Pennsylvania Constitution 

guarantees the right to representation by an attorney in a criminal case and 

the right of appeal. The United States Constitution guarantees a criminal 
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defendant the right to self-representation, which may be exercised following 

a knowing and voluntary waiver of the right to counsel. Faretta v. California, 

422 U.S. 806, 820–21 (1975). However, there is no right to contemporaneous 

representation pro se and by counsel (“hybrid representation”) at trial or on 

appeal. Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. 1993); see also 

Commonwealth v. Pursell, 724 A.2d 293, 251 (Pa. 1999) (applying Ellis 

rationale prohibiting hybrid representation to PCRA proceedings). 

As an appellant does not have a right to hybrid representation, any pro 

se post-sentence motions filed while represented by counsel are “a nullity,

having no legal effect.” Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa.

Super. 2007). Moreover, the Rules of Appellate Procedure generally prohibit a 

represented litigant from submitting his or her own motion, instead directing

the court not to docket any such filing, but to forward it to counsel of record.

Pa.R.A.P. 3304. This Court, however, “is required to docket a pro se notice of

appeal despite Appellant being represented by counsel.” Williams, at 624 

(citation omitted). 

Here, the court sentenced Kerns on September 30, 2016. Neither his 

first post-trial filing, the October 11, 2016 pro se motion for judgment of 

acquittal or modification of sentence, nor his second, the March 16, 2017 pro 

se “Motion to Open, Vacate Order/Sentence Pursuant to 42 Pa.C.S.A. 5505 

and to Proceed Pro Se”, should have been docketed or heard – instead, both 

should have been forwarded to Kerns’ counsel of record for counsel to make 
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a determination of whether to proceed further. See Pa.R.A.P. 3304; see also 

Jette, at 1044 (“proper response to any pro se pleading is to refer the 

pleading to counsel, and to take no further action on the pro se pleading

unless counsel forwards a motion”) (emphasis added).

The court properly denied the October 11, 2016 post-sentence motion, 

stating Kerns had no right to hybrid representation, and in any event finding 

the motion untimely. Similarly, the March 16, 2017 post-trial filing should not 

have been docketed or heard – instead, it should have been forwarded to 

Kerns’ counsel of record. See Pa.R.A.P. 3304; see also Jette, at 1044. 

Therefore, it was error for the lower court to docket this motion and hold 

the August 24, 2017 hearing on the motion. This error was further 

compounded by the lower court subsequently labeling the motion as a postsentence motion and dismissing it as untimely filed, since “any petition filed 

after the judgment of sentence becomes final will be treated as a PCRA 

petition.” Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa. Super. 

2002). Kerns’ judgment of sentence became final on October 30, 2016, after 

neither a timely post-sentence motion nor a timely direct appeal was filed. 

Consequently, it is clear Kerns’ March 16, 2017 motion, filed more than five 

months later, should have been treated as a PCRA petition rather than a postsentence motion. 

Pennsylvania law requires unequivocally that prisoners seeking postconviction relief by whatever name be afforded the assistance of counsel. See 
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Pa.R.Crim.P. 904; see also Commonwealth v. Albrecht, 720 A.2d 693, 699 

(Pa. 1999) (“The denial of PCRA relief cannot stand unless the petitioner was 

afforded the assistance of counsel.”); Commonwealth v. Kutnyak, 781 A.2d 

1259, 1262 (Pa. Super. 2001) (holding that appellant is entitled to 

representation of counsel on first PCRA petition “despite any apparent 

untimeliness of the petition or the apparent non-cognizability of the claims 

presented.”) 

In this instance, both the court and Attorney Fielding improperly treated 

Kerns’ filing as an untimely post-sentence motion. We therefore vacate the 

order characterizing the motion as a post-sentence motion and denying it as 

untimely, and remand to the trial court for a hearing regarding appointment 

of counsel to assist Kerns in pursuing any claims under the PCRA.

Since Kerns has made several accusations of ineffective assistance 

against current counsel, we find it necessary to grant counsel’s petition to 

withdraw, as we cannot expect counsel to argue his own ineffectiveness. If 

Kerns moves to proceed pro se despite the availability of counsel, the PCRA 

court must hold a Grazier hearing. Given this disposition, we conclude Kerns’s 

application for remand and self-representation is moot.

Order vacated. Case remanded to the trial court for further proceedings 

consistent with this memorandum. Petition to withdraw granted. Application 

for remand denied as moot. Jurisdiction relinquished. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/07/2019