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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                     v.

KYLE WUNDER

                          Appellant                No. 623 MDA 2016


                  Appeal from the PCRA Order April 1, 2016
             In the Court of Common Pleas of Lancaster County
            Criminal Division at No(s): CP-36-CR-0004642-2012


BEFORE: BOWES, PANELLA AND JENKINS, JJ.

MEMORANDUM BY BOWES, J.:                        FILED OCTOBER 19, 2016

      Kyle Wunder appeals from the April 1, 2016 denial of his petition for

relief pursuant to the Post Conviction Relief Act (“PCRA”).   We affirm and

grant counsel’s petition to withdraw.

      On July 12, 2013, Appellant entered guilty pleas to murder, robbery,

burglary, and two counts of criminal conspiracy. The guilty pleas stem from

Appellant’s participation in the shooting death of Douglas Herr during the

burglary of decedent’s residence in Lancaster County. In return for the plea

of guilty to first-degree murder, the Commonwealth agreed to forgo seeking

the death penalty.    The trial court accepted the plea, and on August 15,

2013, it imposed life imprisonment for murder and current sentences of
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imprisonment for the remaining offenses.           Appellant did not file a direct

appeal.

     On August 28, 2014, Appellant filed a timely pro se PCRA petition

asserting trial counsel’s ineffectiveness for: (1) failing to investigate the

Commonwealth’s purported offer to reduce the grading of the homicide to

second-degree murder and (2) ignoring his request to file a direct appeal.

The PCRA court appointed Heather Adams, Esquire to represent Appellant

during the PCRA proceedings, and counsel honed Appellant’s claims in an

amended petition.

     Following an evidentiary hearing, wherein trial counsel, Jeffery Conrad,

Esquire, testified regarding his representation of Appellant during the plea

and sentencing proceedings, the PCRA court denied relief. The PCRA court

reasoned that, since the purported plea offer did not exist, Appellant

knowingly entered his plea to first-degree murder.             As to the second

component of Appellant’s ineffectiveness claim, the PCRA court noted that

Appellant and Attorney Conrad proffered conflicting testimony disputing

whether Appellant requested an appeal.            Rather than make a credibility

determination in favor of either witness, the PCRA court denied relief based

upon its reasoning that Appellant could not articulate a meritorious issue

that he would have raised on direct appeal.

     On   March     11,   2016,   this    Court    endorsed   the   PCRA   court’s

determination that the plea to first-degree murder was knowing and

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voluntary; however, we vacated the order denying PCRA relief because the

PCRA court’s rationale for rejecting Appellant’s second ineffectiveness claim

was contrary to the well-ensconced principle our Supreme Court espoused in

Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999). Stated plainly, “an

unjustified failure to file a direct appeal upon request is prejudice per se, and

. . . a defendant does not have to demonstrate his innocence or the merits

of the issue he would have pursued on appeal to be entitled to relief.”

Commonwealth v. Spencer, 892 A.2d 840, 842 (Pa. Super. 2006). Under

those facts, “no discussion of the potential merit of any claims is necessary.”

See Commonwealth v. Markowitz, 32 A.3d 706, 715 (Pa.Super. 2011).

Thus, we found that the PCRA court erred in deferring its fact-finding

regarding whether Appellant established that he requested the appeal and

remanded     the   case   for   the   PCRA    court   to   make   the   necessary

determinations of fact and credibility.      See Commonwealth v. Wunder,

2016 WL 941921 (Pa.Super. 2016) (unpublished memorandum filed March

11, 2016).

      On April 1, 2016, the PCRA court entered an opinion and order,

wherein it stated its finding that Attorney Conrad’s testimony was credible

and its conclusion that Appellant did not request that counsel file a direct

appeal. This timely appeal followed.




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       On May 31, 2016, Attorney Adams filed with this Court a petition to

withdraw from representation1 and a self-styled “Turner/Finely Brief”.2 As

a preliminary matter, we must address whether Attorney Adams has met the

requirements of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

Turner/Finley requires counsel to conduct an independent review of the

record before a court can authorize an attorney's withdrawal. Counsel must

then file a no-merit letter detailing the nature and extent of his review and

list each issue the petitioner wishes to have examined, explaining why those

issues   are   meritless.     Commonwealth          v.   Freeland,    106   A.3d     768

(Pa.Super.     2014)      (citations    omitted).        Counsel     is   required    to

contemporaneously serve upon his client his no-merit letter and application
____________________________________________


1
  This is Attorney Adams’s second request to withdraw from representation.
She filed her initial petition to withdraw during Appellant’s first appeal from
the order denying PCRA relief. As it was not certain at that juncture whether
Appellant’s ineffectiveness claim was meritless, we denied her petition. See
Commonwealth v. Wunder, 2016 WL 941921 (Pa.Super. 2016)
(unpublished memorandum at 14).
2
  Attorney Adams’s current filing is representative of a brief required by
Anders v. California, 386 U.S. 738 (1967), which outlines the procedure to
withdraw from a direct appeal. The proper procedure to withdraw in post-
conviction relief matters is to submit a no-merit letter pursuant to the
requirements of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). As
our jurisprudence views the Anders procedures as affording greater
protection than those prescribed under Turner/Finley, we overlook
counsel’s misstep. Commonwealth v. Widgins, 29 A.3d 816, 817 n.2
(Pa.Super. 2011).



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to withdraw along with a statement that, if the court granted counsel's

withdrawal request, the client may proceed pro se or with a privately

retained attorney. Id. at 774. Thereafter, the reviewing court must conduct

its own independent evaluation of the record and agree with counsel that the

petition is meritless.

      Here, we find that counsel has substantially complied with the

requirements of Turner/Finley. Counsel represented that she reviewed the

record, docket entries, the case files, and the relevant legal authority. She

advised Appellant in a letter that she could not identify any issues of

arguable merit, furnished him with a copy of her petition to withdraw and

the appellate brief explaining why his claim was meritless, and advised him

that he had the right to retain other counsel or represent himself pro se and

file a response to the petition to withdraw. Appellant did not file a response.

      Counsel presents the following question for our review: “Whether trial

counsel was ineffective for failing to file an appeal on behalf of Appellant.”

Turner/Finley brief at 4.        Our standard of review regarding an order

denying a petition under the PCRA is whether the determination of the PCRA

court is supported by the evidence of record and is free of legal error.

Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Id.




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      As we outlined, supra, the crux of Appellant’s contention is that he

directed trial counsel to file a direct appeal on his behalf and trial counsel

ignored his request. We briefly reiterate the following legal principles that

are pertinent to our review:

            Generally, if counsel ignores a defendant's request to file a
      direct appeal, the defendant is entitled to have his appellate
      rights restored. Commonwealth v. Lantzy, 558 Pa. 214, 736
      A.2d 564 (1999). . . . However, such relief is appropriate only
      where the petitioner pleads and proves that a timely appeal was
      in fact requested and that counsel ignored that request.
      Commonwealth v. Harmon, 738 A.2d 1023, 1024
      (Pa.Super.1999). A mere allegation will not suffice to prove that
      counsel ignored a petitioner's request to file an appeal. Id.

Spencer, supra at 842. Thus, Appellant is entitled to relief so long as he

pled and proved that he requested Attorney Conrad to file a direct appeal

and that his request was unjustifiably ignored.

      In rejecting Appellant’s claim, the PCRA court concluded that Attorney

Conrad testified credibly that Appellant did not request that he file a direct

appeal.   The certified record sustains the court’s credibility determination.

During the evidentiary hearing, Appellant testified, albeit cryptically, that he

requested counsel to file a direct appeal on his behalf.

      Q. After you were sentenced, did you speak with [Attorney
      Conrad] at all in regards to this appeal?

      A. I know we spoke, but I can’t recall on exactly what it was.

      Q. Okay. . . . Do you recall any specific conversation you had
      with Attorney Conrad in regards to an appeal to the Superior
      Court, to a higher court about your sentence?



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      A. I can’t recall exactly, but I can recall talking about it, that I
      . . . asked him that he file any paperwork that we can for relief
      and reconsiderations.

      Q. Okay. And was anything ever filed on your behalf?

      A. No.

N.T., 2/24/15, at 8-9.

      In contrast to Appellant’s intimation, Attorney Conrad testified during

the PCRA hearing that Appellant declined to request a direct appeal.         He

explained,

             So we had talked about the fact that[,] if he did . . . plead
      guilty, there would be almost no basis [to appeal] whatsoever.
      Unless something went wrong in the courtroom . . . , there
      would be no basis for appeal.

            And that’s, in fact, how it went down. We talked about
      that. We came in here and pled guilty. And I chatted with
      [Appellant] just afterward and talked about, you know, appeal?
      [“]Nah[”] I think was his exact word, [“]nah[”], n-a-h. There
      was no basis for an appeal in my opinion and he did not see one.

Id. at 29-30.

      Thereafter, Attorney Conrad reiterated that he recalled having a

conversation with Appellant in the holding cell after the sentencing hearing

where he discussed whether to file an appeal. Id. at 30. Again, he disputed

that Appellant made a blanket statement to “file for any relief you can[.]”

Id.

      Later, the following exchange occurred between Attorney Conrad and

the PCRA court.



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             Just to be clear, you never had any discussions with
      [Appellant] after sentencing about any desire he may have had
      to file an appeal in this case for whatever reason? I mean, I
      understand what you said about the inadvisability of doing that,
      but even beyond that, did you ever have any conversations with
      [him] about his desire to file an appeal?

      [Attorney Conrad]: Just back in the holding cell, your Honor,
      afterwards. I routinely go back and see a client[.]

      Q. Did he indicate to you any interest in filing an appeal for any
      reason?

      A. No, Your Honor. No.

      Q. Did you, at any time prior to receipt of this PCRA petition,
      have any indication from him contrary to that?

      A. No. No, Your Honor.

Id. at 37-38.

      As the record supports the PCRA court’s decision to credit Attorney

Conrad’s testimony that Appellant did not request a direct appeal instead of

Appellant’s contrary testimony, that credibility determination is binding on

this Court. Accordingly, we must conclude that an appeal was not requested

and that the PCRA court correctly denied reinstatement of Appellant’s direct

appeal rights. See Markowitz, supra (affirming PCRA court’s credibility

determination that petitioner did not request direct appeal).

      After independent review of the record, we find no meritorious issues

that have been preserved for our review.     Hence, agree with counsel that

the petition is meritless.




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     Petition of Heather Adams, Esquire, to withdraw granted.   Order

affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/19/2016




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