Com. v. Kiadee, H.

Opinion

J-S56039-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : HUSSAIN KIADEE : : Appellant : No. 3186 EDA 2018

Appeal from the Judgment of Sentence Entered September 28, 2018 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0007557-2016

BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.

JUDGMENT ORDER BY NICHOLS, J.: FILED NOVEMBER 08, 2019

Appellant Hussain Kiadee appeals from the judgment of sentence

imposed following his jury trial convictions for first-degree murder and

possessing instruments of crime (PIC).1 Appellant challenges the legality of

his arrest, the voluntariness of his confession, and the admissibility of certain

hearsay statements. We quash the appeal as premature.

The relevant procedural history of this appeal is as follows. A jury

convicted Appellant of the aforementioned offenses on August 16, 2018. On

September 28, 2018, the trial court sentenced Appellant to life imprisonment

without parole for the first-degree murder conviction, plus a consecutive term

of one to two years’ imprisonment for PIC. Privately retained trial counsel

(trial counsel) timely filed a post-sentence motion on Appellant’s behalf on

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1 18 Pa.C.S. §§ 2502(a) and 907, respectively. J-S56039-19

October 2, 2018. That same day, trial counsel also filed a motion for leave to

withdraw.

On October 10, 2018, the trial court granted trial counsel’s motion to

withdraw and directed the public defender to determine whether Appellant

qualified for post-sentence representation within ten days. If the public

defender determined that Appellant did not qualify for its legal representation,

then the trial court directed that Appellant would be responsible for retaining

private counsel. Further, the trial court dismissed Appellant’s post-sentence

motion without prejudice, such that Appellant could re-file the motion after

newly retained counsel entered their appearance.

Subsequently, privately retained counsel (private counsel) entered their

appearance on October 23, 2018, and filed a supplemental post-sentence

motion on October 26, 2018. The public defender, however, was unaware

that Appellant had retained private counsel, and the public defender filed a

notice of appeal on October 26, 2018.

The trial court concluded that it lacked jurisdiction to entertain the

merits of the supplemental post-sentence motion, and it did not order

Appellant to file a Pa.R.A.P. 1925(b) statement. See Trial Ct. Op., 4/1/19, at

2-3. On April 1, 2019, the trial court filed an opinion asking this Court to

quash the appeal and remand the matter for further proceedings.

Preliminarily, we must evaluate whether we have jurisdiction over this

appeal. “[S]ince the question of appealability implicates the jurisdiction of

this Court, the issue may be raised by this Court sua sponte.”

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Commonwealth v. Horn, 172 A.3d 1133, 1135 (Pa. Super. 2017) (citation

and internal alterations omitted). “[T]he final, appealable order for a

defendant’s direct appeal in a criminal case is the judgment of sentence, not

the conviction.” Commonwealth v. Claffey, 80 A.3d 780, 782-83 (Pa.

Super. 2013) (citation omitted). If a defendant files a timely post-sentence

motion, then the notice of appeal must be filed within thirty days of the entry

of the order deciding the motion. Pa.R.Crim.P. 720(A)(2)(a). “No direct

appeal may be taken by a defendant while his or her post-sentence motion is

pending.” Pa.R.Crim.P. 720 cmt. (citation omitted).

Instantly, trial counsel filed a timely post-sentence motion, as well as a

separate motion for leave to withdraw on October 2, 2018. The trial court

permitted trial counsel to withdraw and dismissed Appellant’s post-sentence

motion without prejudice such that Appellant could re-file the motion after

new counsel entered their appearance. Private counsel subsequently entered

their appearance and filed a supplemental post-sentence motion.

Nevertheless, the public defender filed a notice of appeal before the trial court

could rule on the supplemental post-sentence motion.

Because the entry of an appropriate order is a prerequisite to this Court’s

exercise of jurisdiction, we conclude Appellant’s notice of appeal was

premature. See Pa.R.Crim.P. 720(A)(2)(a) & cmt.; Claffey, 80 A.3d at 782-

83. Accordingly, we are compelled to quash the appeal. Upon remand, the

trial court should consider the merits of Appellant’s supplemental post-

sentence motion. See Commonwealth v. Borrero, 692 A.2d 158, 161 (Pa.

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Super. 1997) (quashing the appellant’s premature appeal and explaining that

the interests of justice required the trial court to consider the post-sentence

motions on remand, nunc pro tunc).

Appeal quashed. Case remanded for further proceedings consistent with

this decision. Jurisdiction relinquished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/8/19

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