J-A35005-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

BRANDON CARGILE,

                            Appellant                   No. 52 WDA 2015


       Appeal from the Judgment of Sentence Entered December 9, 2014
               In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0014493-2013


BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                     FILED DECEMBER 30, 2015

        Appellant, Brandon Cargile, appeals from the judgment of sentence of

an aggregate term of 20-40 years’ incarceration, imposed following his

conviction for sexual offenses against a minor. Herein, Appellant challenges

the trial court’s denial of his trial attorney’s pretrial motion to withdraw as

counsel. After careful review, we affirm.

        The specific facts that led to Appellant’s conviction are not pertinent to

his appeal. Briefly stated, due to allegations that he had sexually molested

his eight year old daughter, Appellant was charged with attempted

involuntary deviate sexual intercourse with a child (attempted-IDSI),1


____________________________________________


1
    18 Pa.C.S. § 901; 18 Pa.C.S. § 3123(b).
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unlawful contact with a minor,2 corruption of minors,3 indecent exposure,4

and endangering the welfare of a child.5 Prior to trial, Appellant’s appointed

attorney from the Allegheny County Office of the Public Defender, Kathleen

Miskovich, Esq., filed a motion for leave to withdraw as counsel, citing

irreconcilable differences between herself and Appellant.           The trial court

denied the motion without a hearing.               Attorney Miskovich represented

Appellant through all subsequent pretrial, trial, and sentencing proceedings.

          A jury found Appellant guilty on all counts on September 3, 2014. On

December 9, 2014, the trial court sentenced Appellant to consecutive terms

of 10-20 years’ incarceration for attempted-IDSI and unlawful contact with a

minor.       Appellate counsel, Victoria Vidt, Esq., also from the Allegheny

County Office of the Public Defender, filed a timely notice of appeal on

Appellant’s behalf.          Appellant then filed a timely, court-ordered Pa.R.A.P.

1925(b) statement of errors complained of on appeal and, on May 20, 2015,

the trial court issued its Rule 1925(a) opinion. Appellant now presents the

following question for our review:

          Did the lower court err by failing to grant trial counsel’s mot[io]n
          to withdraw as counsel, or to even hold a recorded hearing
          thereon, after counsel asserted irreconcilable differences
          between herself and her client?

____________________________________________


2
    18   Pa.C.S.   §   6318(a)(1).
3
    18   Pa.C.S.   §   6301(a)(1)(i).
4
    18   Pa.C.S.   §   3127.
5
    18   Pa.C.S.   §   4304.



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Appellant’s Brief, at 5.

      The matter before us concerns the denial of Attorney Miskovich’s

pretrial motion to withdraw as Appellant’s counsel.       Appellant was not

seeking to proceed pro se at trial, nor does he allege that he was seeking to

replace Attorney Miskovich with private counsel. Thus, the issue before us is

whether the trial court abused its discretion by not appointing new counsel,

or by not holding a hearing to make that determination.

      Pennsylvania Rule of Criminal Procedure 122(C) provides “[a]
      motion for change of counsel by a defendant for whom counsel
      has been appointed shall not be granted except for substantial
      reasons.” Pa.R.Crim.P 122(C). To satisfy this standard, a
      defendant must demonstrate he has an irreconcilable difference
      with counsel that precludes counsel from representing him.
      Commonwealth v. Spotz, 562 Pa. 498, 756 A.2d 1139, 1150
      (2000) (citing Commonwealth v. Tyler, 468 Pa. 193, 360 A.2d
      617, 619 (1976)). The decision whether to appoint new counsel
      lies within the trial court's sound discretion.    Id. (citing
      Commonwealth v. Segers, 460 Pa. 149, 331 A.2d 462, 465
      (1975)).

Commonwealth v. Wright, 961 A.2d 119, 134 (Pa. 2008).

      Attorney’s Miskovich’s motion to withdraw stated, in pertinent part, as

follows:

      3. There are irreconcilable differences between [Appellant] and
      defense counsel, and as a result, defense counsel is not
      adequately able to effectively represent [Appellant].

      4. Defense counsel maintains that it would be in the best
      interests of [Appellant] for this Honorable Court to appoint new
      defense counsel.

Motion for Leave to Withdraw as Counsel (hereinafter, “the Motion”),

1/13/14, at 2.


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      In its Rule 1925(a) opinion, the trial court indicates that it denied the

Motion because:

      [D]efense counsel’s mere allegation that there were
      “irreconcilable differences” was not sufficient to warrant her
      withdrawal. Defense counsel performed ably and well at trial
      and [Appellant]’s rights and interests were well-represented.
      Whatever the dispute between [Appellant] and Ms. Miskovitch, it
      did not impede [Appellant]’s right to a fair trial and to effective
      counsel. This Court was well within its discretion in denying the
      Motion to Withdraw.

Trial Court Opinion (TCO), 5/20/15, at 2-3.

      Instantly, Appellant contends that the trial court abused its discretion

in denying the motion because, in addition to the bald assertion of

irreconcilable differences contained in the Motion, Appellant had twice filed

pro se motions indicating his dissatisfaction with counsel’s performance.

Appellant states:

      Mr. Cargile filed two pro se motions both before and after his
      trial date. On June 27, 2014, Mr. Cargile filed a Motion for
      habeas corpus …, contending, inter alia, that his appointed
      counsel was ineffective. In the motion, Mr. Cargile requests that
      the court appoint counsel to represent him on the motion. Then
      again, on November 4, 2014, which was after his trial but before
      sentencing, Mr. Cargile filed a “Motion for Appointed Counsel”
      which complained that his appointed counsel from the Public
      Defender’s Office had provided ineffective assistance of counsel.
      These motions demonstrate that Mr. Cargile indeed had no
      confidence in his appointed counsel and believed that the
      differences between himself and appointed counsel could not be
      remedied. In such a case, at a minimum, the court should have
      held a hearing on the request for new counsel.

Appellant’s Brief at 10-11.




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       We disagree with several aspects of Appellant’s argument. It is far too

common for criminal defendants to file pro se motions while represented by

counsel for this Court to give much credence to the notion that the filing of

such   motions,   alone,   provides   significant   evidence   of   ‘irreconcilable

differences’ for purposes of Rule 122(C). What may be relevant, of course,

is the content of such motions.        In this regard, we acknowledge that

Appellant did raise concerns regarding his counsel’s stewardship therein.

       However, the Motion was filed and denied by the trial court at least

five months’ prior to when Appellant’s first pro se motion was filed. As such,

it is not appropriate for us to review whether the trial court erred in denying

the Motion, with or without a hearing, based upon information received at a

later time. Indeed, Appellant’s complaints regarding counsel’s performance,

as raised in his June 27, 2014 habeas corpus motion, concerned counsel’s

failure to request dismissal of the charges on June 2, 2014, based on the

victim’s failure to appear on that date. That matter could not have served

as the basis for the ‘irreconcilable differences’ cited by counsel in the Motion

filed in January of 2014. By the same logic, with regard to the trial court’s

analysis, it is irrelevant to the merit of Appellant’s claim whether trial

counsel performed well at trial nine months after the court had denied the

Motion.

       Thus, the matter before us is really whether Appellant was entitled to

a hearing    on the    Motion   by simply citing      the   magic   language    of

‘irreconcilable differences,’ when, at the time of the Motion, nothing of

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record suggested or indicated what those differences were.      Appellant has

not cited any case law that directly compels this Court to conclude that it

would be a per se abuse of discretion to deny a motion to withdraw as

counsel without a hearing, where there has only been a bare assertion of

‘irreconcilable differences.’

      Appellant cites to Commonwealth v. Tyler, 360 A.2d 617 (Pa. 1976)

for support; however, for the following reasons, we find Tyler to be

unpersuasive in light of the circumstances presented by this case. In Tyler,

the defendant was denied his request for newly appointed counsel after

claiming ‘irreconcilable differences’ existed between himself and his attorney

over trial strategy.   When the court sought to inquire as to the nature of

those differences, counsel for the defendant asserted that attorney-client

privilege prevented any further elaboration.     The court then denied the

motion to appoint new counsel. The defendant refused to proceed with

appointed counsel and represented himself pro se at his trial.    On appeal,

our Supreme Court granted the defendant a new trial due, inter alia, to the

trial court’s failure to appoint new counsel.

      In the present matter, Appellant made an even less-detailed assertion

of ‘irreconcilable differences’ in the Motion (there was no mention of

differences in trial strategy), and counsel did not assert that the attorney-

client privilege prevented further elaboration. And, although the Motion had




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attached an appendix which included a blank order for a hearing, the Motion

itself did not contain any corresponding request for a hearing. 6 Although we

acknowledge that Tyler expresses a preference for a hearing, it does not

state, or appear to stand for, the proposition that a hearing is mandatory in

every instance in which appointed counsel seeks to withdraw by citing

‘irreconcilable differences.’     Accordingly, we cannot conclude that the trial

court clearly abused its discretion in denying the Motion without a hearing,

especially given the Motion’s lack of detail, or at least some explanation for

the lack of detail. Simply put, a bare assertion of ‘irreconcilable differences,’

without more, does not compel a trial court to hold a hearing to inquire

further into the nature of those differences.            To hold otherwise would

effectively mandate that a hearing be held in every instance in which a

motion to withdraw is filed, but no such rule is dictated by the Rules of

Criminal Procedure or by Pennsylvania caselaw.            As such, Appellant’s sole

claim lacks merit.

       Nevertheless, we reiterate that our decision herein does not at all rely

on the trial court’s reasoning that counsel “performed ably and well at trial”

or that Appellant’s right to a fair trial was not impeded by counsel’s

representation, see TCO, at 2-3.               Commonwealth v. Miller, 787 A.2d


____________________________________________


6
  The appendix also contained a blank order to deny or grant the withdrawal
request, with no reference to a hearing, which the trial court ultimately
utilized to deny the Motion.



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1036, 1038 (Pa. Super. 2001) (“[I]f a trial court's decision is correct, we

may affirm on any ground.”).     Instead, we conclude that, irrespective of

Attorney Miskovich’s trial performance, the Motion was inadequate to justify

the appointment of new counsel, or to even hold a hearing to consider the

same. In this regard, we note that Appellant is permitted, without prejudice,

to pursue claims of the ineffective assistance of counsel in a subsequent

collateral Post Conviction Relief Act petition, including, but not limited to,

counsel’s stewardship of the Motion.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/2015




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