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[U] Commonwealth v. O'Connell

Superior Court of Pennsylvania

July 18, 2013



Appeal from the Order Entered April 11, 2012 In the Court of Common Pleas of Blair County Criminal Division at No(s): CP-07-CR-0000741-2010, CP-07-CR-0001395-2011




Appellant, Kevin O'Connell, appeals pro se from his judgment of sentence imposed following his conviction on two counts of loitering and prowling at night time, and from his judgment of sentence imposed for violation of probation due to those convictions. Appellant asserts multiple claims of ineffective assistance of counsel. Because we conclude that Appellant's claims are not cognizable on direct appeal, we affirm.

On January 18, 2012, Appellant was tried for two counts of loitering and prowling at night time, 18 Pa.C.S. § 5506, at CP-07-CR-0001395-2011. The jury returned a verdict of guilty as to both counts. On April 11, 2012, the trial court sentenced Appellant to consecutive terms of 6 – 12 months' incarceration, for an aggregate sentence of 1 – 2 years' incarceration. Due to these new convictions, the trial court found Appellant to be in violation of preexisting probationary sentences at CP-07-CR-0000741-2010. By order also dated April 11, 2012, the trial court sentenced Appellant to three consecutive terms of 6 – 12 months' incarceration for an aggregate term of 18 – 36 months' incarceration, less time served, to be served consecutively to the sentence imposed at CP-07-CR-0001395-2011. Appellant's post-sentence motions were collectively denied by amended order dated April 26, 2012.

Following the trial court's denial of Appellant's post-sentence motions, Appellant filed timely notices of appeal.[1] Appellant's privately retained appellate counsel filed two Pa.R.A.P. 1925(b) concise statements, raising several claims as follows. At CP-07-CR-0000741-2010, counsel challenged the discretionary aspects of sentencing as well as the legality of the sentence due to the fact that appellant had not yet begun serving one or more of the probations that were revoked by the trial court. At CP-07-CR-0001395-2011, counsel alleged the Commonwealth improperly amended the criminal information, that the verdict was against the weight of the evidence, that the evidence was not sufficient (and, therefore, that the trial court erred when it denied the motion for acquittal), and the discretionary aspects of sentencing.

Following the filing of the concise statements described above, Appellant fired his appellate counsel and proceeded with his appeals pro se. Counsel petitioned the trial court for leave to withdraw on October 19, 2012. A hearing to address the matter was held on November 15, 2012. The trial court engaged in a substantial colloquy concerning Appellant's decision to fire his privately retained appellate counsel, his decision to waive his right to appointed counsel, and his decision to proceed with the instant appeal(s) pro se. Following the hearing, the trial court issued an order granting appellate counsel's withdrawal and found Appellant's waiver of his right to counsel to be knowing, intelligent, and voluntary. Subsequently, and in consideration of the November 15, 2012 proceeding in the trial court, this Court granted counsel's petition to withdraw, and extended Appellant's deadline for filing his pro se brief.

In his pro se brief, Appellant presents the following statement of the questions involved:

(A.) Was trial counsel ineffective assistance counsel when He did not argue properly when questioning each witnesses, for the commonwealth, and also argue against the evidence that was produce by the commonwealth?
(B.) And also why did not bring in the alibi witnesses that was witnesses for the defense and would have changed the outcome of the trial in the favor of the defendant?
(C.) And why did not the counsel on appeal want to argue to the superior court, argue ineffective assistance of trial counsel?
(D.) The Honorable court would not have had a full understanding of the issue of ineffective assistance of counsel. If the Appellant did not take over the appeal Pro se.

Appellant's Brief, at 4 (unaltered from original).

Appellant was marginally more specific in his claims as he listed them in his brief's table of contents:

(A.) Counsel was ineffective, and acted ineffectively and prejudice, the Appellant during the trial.
(B.) The performance of counsel, made seriously prejudicial mistake in the course of the Appellant case.
(C.) Counsel failed to impeachment of witness on their bias, interest corrupt motive.
(D.) Counsel failed to call missing witness that would have change the outcome of the trial.
(E.) Counsel failed to have the commonwealth turn all statutory disclosure duties of discovery.
(F.) Counsel failed to argue of witnesses prior consistent statements.
(G.) Counsel failed to argue, that the commonwealth admitted prior acts.
(H.) Counsel failed to argue, Police misconduct.
(I.) Counsel failed to produce a alibi defense when He knew it.
(J.) Counsel failed to use important evidence or Testimony at trial.
(K.) Counsel failed to pursue defense available to the defendant.
(L.) Counsel failed to investigate, or perform certain pretrial function.

Appellant's Brief, at (i) – (ii) (unaltered from original).

In his brief, Appellant only raises claims concerning ineffective assistance of trial or appellate counsel. The trial court never conducted an evidentiary hearing concerning any of these issues. Furthermore, none of these claims were addressed by the trial court in its Pa.R.A.P. 1925(a) opinion, which instead only addressed those issues raised by appellate counsel in the two concise statements he filed prior to being fired by Appellant. In these circumstances, we are compelled to dismiss Appellant's claims without prejudice.

In Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), our Supreme Court held that claims of ineffective assistance of counsel should ordinarily be reserved for collateral review. The Grant Court abrogated the rule of Commonwealth v. Hubbard, 372 A.2d 687 (Pa. 1977), which required a newly-appointed attorney to raise ineffective assistance of prior counsel at the earliest opportunity, including on direct appellate review. Grant, 813 A.2d at 726. In Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003), the Supreme Court allowed ineffective assistance claims to be litigated on direct appeal where the defendant raised them before the trial court and the trial court conducted a hearing to determine the merits of those claims. The Bomar exception currently stands as the only exception to the general rule set forth in Grant.

Moreover, the Bomar exception was qualified due to our Supreme Court's holdings in Commonwealth v. Wright, 961 A.2d 119 (Pa. 2008), and Commonwealth v. Liston, 977 A.2d 1089 (Pa. 2009). As an en banc panel of this Court recently stated in Commonwealth v. Barnett, 25 A.3d 371 (Pa. Super. 2011), "[b]ased on the opinion of a majority of participating justices in Wright and Liston, this Court cannot engage in review of ineffective assistance of counsel claims on direct appeal absent an 'express, knowing and voluntary waiver of PCRA review.'" Barnett, 25 A.3d at 377 (quoting Liston, 977 A.2d at 1096 (Castille, C.J., concurring)).

Here, there was no express, knowing, and voluntary waiver of Appellant's right to PCRA review of record, nor did the trial court conduct a hearing on the merits of Appellant's ineffective assistance of counsel claims. Accordingly, pursuant to the general rule in Grant, and due to Appellant's failure to establish a Bomar exception as refined by Barnett, we are not permitted to address Appellant's ineffective assistance of counsel claims on direct appeal. Therefore, as Appellant only presents us with ineffective assistance of counsel claims, we dismiss those claims without prejudice to raise them in a subsequent PCRA petition.

Judgment of sentence affirmed.

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