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[U] Commonwealth v. Troche

Superior Court of Pennsylvania

March 5, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
ALBERT TROCHE, JR. Appellant COMMONWEALTH OF PENNSYLVANIA Appellee
v.
ALBERT TROCHE, JR. Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order June 27, 2013 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0002688-2007

Appeal from the PCRA Order June 27, 2013 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0002322-2007

BEFORE: MUNDY, J., OLSON, J., and STABILE, J.

MEMORANDUM

MUNDY, J.

Appellant, Albert Troche, Jr., appeals pro se from the June 27, 2013 order denying his petitions for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

The underlying facts of this case were summarized by a prior panel of this Court on direct appeal, and need not be reiterated here. See Commonwealth v. Troche, 13 A.3d 983 (Pa.Super. 2010) (unpublished memorandum at 2-3).

On May 10, 2007, Appellant was charged with two counts of possession of a controlled substance (cocaine), and one count each of possession with intent to deliver a controlled substance (PWID) and delivery of a controlled substance.[1] Appellant was formally arraigned on July 16, 2007, and the case was assigned to docket number CP-06-CR-0002688-2007. On May 15, 2007, Appellant was charged with two counts each of possession of a controlled substance (cocaine and marijuana) and PWID. Appellant was formally arraigned on June 17, 2007, and the case was assigned to docket number CP-06-CR-0002232-2007. Thereafter, on July 18, 2007, these cases were consolidated with a third case assigned to docket number CP-06-CR-0002689-2007.

Following multiple changes in counsel and several pro se filings, Appellant filed an omnibus motion to suppress evidence with regard to docket number CP-06-CR-0002232-2007. The trial court denied this motion on February 18, 2009. Appellant twice attempted to appeal from the denial of this motion, and both times this Court dismissed the appeal as interlocutory. Following a Grazier[2] hearing, the trial court entered an order on March 30, 2009, permitting Appellant to proceed pro se at trial and appointing Kurt Geishauser, Esquire (Attorney Geishauser) as standby counsel. On August 17, 2009, Appellant's jury trial commenced. Appellant was acquitted of the charges stemming from docket number CP-06-CR-0002689-2007, but found guilty of all remaining charges.

The PCRA court summarized the remaining procedural history of this case as follows.

[On August 19, 2009, Appellant] was subsequently sentenced to serve a term of twelve years and one month to fifty years['] incarceration in a state correctional facility.
[Appellant] then filed a direct appeal to the Pennsylvania Superior Court. Douglas J. Waltman, Esquire, was appointed to represent [Appellant], and filed a brief on [Appellant's] behalf. On September 14, 2010, the Pennsylvania Superior Court affirmed [Appellant's] judgment of sentence. [See Troche, supra.]
[Appellant did not file a petition for allowance of appeal with our Supreme Court.] On January 24, 2011, [Appellant] timely filed a pro se [PCRA] petition[.] Lara Glenn Hoffert, Esquire [(Attorney Hoffert)], was appointed on January 28, 2011 to represent [Appellant] regarding the disposition of the PCRA petition. After her careful review of the record, counsel was directed to file either an amended petition pursuant to Pennsylvania Rule of Criminal Procedure 905 detailing [Appellant's] eligibility for relief, or a [Turner/]Finley Petition detailing the reasons why th[e PCRA] court should allow counsel to withdraw. Commonwealth v. Finley, [550 A.2d 213 (Pa.Super. 1988) (en banc)]; Commonwealth v. Turner, [544 A.2d 927 (Pa. 1988)].
[Attorney Hoffert] reviewed the entire file and corresponded with [Appellant]. Thereafter, on March 12, 2013, [Attorney Hoffert] filed a petition for leave of court to withdraw as counsel and filed a brief in support of said petition. Within the [Turner/]Finley Petition, [Attorney Hoffert] expressed that after careful review of the record, in her professional judgment there were no meritorious issues that could be raised within [Appellant's] petition based on relevant excerpts from the record.

PCRA Court Order and Notice of Intent to Dismiss, 5/23/13, at 1-2 (some case citations added; citation formatting amended).

On May 23, 2013, the PCRA court provided Appellant with notice of its intent to dismiss his petition without a hearing, pursuant to Pa.R.Crim.P. 907. Attorney Hoffert's request to withdraw as counsel was granted by the PCRA court that same day. Appellant responded to the PCRA court's Rule 907 notice by filing a "Petition to Amend PCRA" and a motion requesting additional time to reply to the PCRA court's Rule 907 notice. On June 3, 2013, the PCRA court denied both of Appellant's motions. Nonetheless, on June 6, 2013, Appellant filed a third, pro se amended PCRA petition. Thereafter, on June 27, 2013, the PCRA court dismissed Appellant's petitions without a hearing. On July 9, 2013, Appellant filed a timely pro se notice of appeal with respect to docket numbers CP-06-CR-0002688-2007 and CP-06-CR-0002232-2007, and these cases were consolidated by this Court.[3]

On appeal, Appellant raises the following 11 issues ...


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