Com. v. Ellis, R. ( 2017 )

J-S24038-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RUSSELL L. ELLIS :
:
Appellant : No. 1642 WDA 2016
Appeal from the PCRA Order September 28, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002327-2013
BEFORE: PANELLA, STABILE, JJ., and STEVENS, P.J.E.*
JUDGMENT ORDER BY STEVENS, P.J.E.: FILED JULY 10, 2017
This matter returns to us after we ordered the PCRA court to conduct
an evidentiary hearing to clarify whether Appellant, who ostensibly filed a
pro se appeal with this Court although represented by appointed counsel
below, was doing so in compliance with our jurisprudence governing self-
representation. Having conducted the hearing, the PCRA court now confirms
that Appellant never waived his right to appointed PCRA counsel and
Attorney Hathaway remained counsel of record at all times relevant to the
instant appeal.
In light of the PCRA court’s determination, we are precluded, under
Commonwealth v. Glacken, 32 A.3d 750 (Pa.Super. 2011) and its
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S24038-17
proscription against hybrid representation, from reviewing Appellant’s self-
styled pro se brief. Critically, that leaves us without a brief to review in the
present matter.
In much the same way as occurred herein, the Glacken panel was
presented with only a pro se brief in a case where PCRA counsel had never
filed a no-merit letter and petition to withdraw, the court had never
permitted counsel to withdraw, and Glacken had never waived his right to
counsel. Id. at 751, 753. We, therefore, observed that governing authority
requiring an appellant to “either allow his attorney to represent him or
request permission to proceed pro se” constrained us to quash Glacken’s
appeal for lack of a counseled brief. Id. at 753.1 Without a counseled brief
in the present matter, we, too, must quash Appellant’s appeal.
Appeal quashed.
____________________________________________
1
Glacken observed, further, that if the appellant should choose to file
another PCRA petition, Pa.R.Crim.P. 904 permitted, inter alia, appointment
of counsel if it is necessary in the interests of justice. The panel also
admonished that counsel, if appointed, “must either serve as an advocate or
proceed in accordance with [Commonwealth v. Turner, 544 A.2d 927
(1988)] and [Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988)].
It appears from the record that current counsel did neither, to the detriment
of his client.” Glacken, 32 A.3d at 753.
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J-S24038-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/2017
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