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[U] Commonwealth v. O'Connell

Superior Court of Pennsylvania

July 18, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
KEVIN O'CONNELL, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
KEVIN O'CONNELL, Appellant

NON-PRECEDENTIAL DECISION

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

BEFORE: BENDER, J., LAZARUS, J., and STRASSBURGER, J.[*]

MEMORANDUM

BENDER, J.

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 ...

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