J-S12007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

BRANDIN LEE KASICK

                            Appellant                No. 1760 EDA 2015


                  Appeal from the PCRA Order April 24, 2015
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0004708-2011


BEFORE: MUNDY, J., OLSON, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.:                              FILED APRIL 11, 2016

        Appellant, Brandin Lee Kasick, appeals pro se from the April 24, 2015

order dismissing, without a hearing, his first petition filed pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful

consideration, we conclude Appellant has waived his right to file a PCRA

petition and, therefore, we affirm.

        We summarize the pertinent procedural history of this case as follows.

On September 21, 2011, Appellant was arrested and charged with two

counts of homicide in connection with the deaths of an elderly woman and

her daughter, whose throats had been slit in the course of an apparent

robbery in their home. On January 14, 2014, Appellant entered a negotiated

____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
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nolo contendere plea to two counts of first-degree murder. In accord with

the plea agreement, the Commonwealth withdrew its request for a death

penalty, and, in exchange, Appellant waived his direct appeal and post-

conviction rights. See Written Waiver of Appeal Rights Colloquy, 1/14/14,

1-7.   On the same day Appellant entered his plea, the trial court sentenced

him to two consecutive terms of life imprisonment without possibility of

parole.    No direct appeal was filed.           On or before February 12, 2015,

Appellant filed a timely pro se PCRA petition.1 By order entered that day,

the PCRA court appointed Sean Thomas Poll, Esquire, to represent Appellant.

On March 30, 2015, Attorney Poll filed a motion to withdraw and a

Turner/Finley letter.2 On March 31, 2015, the PCRA court filed a notice of

its intent to dismiss Appellant’s PCRA petition without a hearing, pursuant to

Pennsylvania Rule of Criminal Procedure 907.             Appellant filed a pro se
____________________________________________
1
   On April 2, 2014, Appellant filed a pro se “Motion to File an Appeal
Extension,” which the trial court denied on April 7, 2014. On October 28
2014, Appellant filed a pro se motion for transcripts, which the trial court
denied by order entered on November 14, 2014. In neither instance did the
trial court treat Appellant’s filings as a PCRA petition, or appoint counsel to
represent Appellant. See Commonwealth v. Jerman, 762 A.2d 366, 368
(Pa. Super. 2000) (noting“[t]here is no requirement that a PCRA petition be
on any particular form,” and recognizing that post-sentence filings
requesting relief cognizable under the PCRA should be treated as PCRA
petitions). The instant PCRA petition was docketed on February 12, 2015 as
an attachment to the PCRA court’s order appointing counsel. The petition,
however, bears a time stamp from Judge Banach’s chambers of January 16,
2015.
2
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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response to Attorney Poll’s motion to withdraw and the trial court’s notice of

intent to dismiss on April 17, 2015.           On April 24, 2015, the PCRA court

dismissed Appellant’s pro se PCRA petition without a hearing.          The PCRA

court did not address Attorney Poll’s motion to withdraw at that time. On

May 26, 2015, Appellant filed a pro se notice of appeal.3


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3
  May 24, 2015, the 30th day following the PCRA court’s April 24, 2015 order,
fell on a Sunday, and Monday, May 25, 2015, was a Court holiday.
Accordingly, Appellant’s pro se notice of appeal was timely filed. See 1
Pa.C.S. § 1908 (“Whenever the last day of any such period shall fall on
Saturday or Sunday, or on any day made a legal holiday …, such day shall
be omitted from the computation”). We further note that Appellant was
represented by counsel when he filed his pro se notice of appeal implicating
the prohibition against hybrid representation.

       We have held that a criminal defendant’s pro se actions have no legal
effect while he or she remains represented by counsel. Commonwealth v.
Hall, 476 A.2d 7, 9-10 (Pa. Super. 1984); see also Commonwealth v.
Nischan, 928 A.2d 349, 355 (Pa. Super. 2007) (noting that a defendant’s
pro se filings while represented by counsel are legal nullities), appeal denied,
936 A.2d 40 (Pa. 2007); Commonwealth v. Pursell, 724 A.2d 293, 301
(Pa. 1999) (holding, based upon principles discouraging hybrid
representation, that only issues presented in a counseled amended PCRA
petition shall be addressed by the PCRA court), cert. denied, Pursell v.
Pennsylvania, 528 U.S. 975 (1999). However, our Supreme Court has
held that a pro se notice of appeal filed by an appellant while represented by
counsel shall be considered merely premature if counsel and the trial court
take appropriate actions to perfect the appeal. Cooper, supra at 1008 (Pa.
2011).

      Instantly, upon receipt of Appellant’s pro se notice of appeal, the clerk
of courts alerted Appellant as to defects with the notice of appeal regarding
the payment of a fee or obtaining leave to proceed in forma pauperis. On
June 9, 2015, Appellant subsequently filed for leave to proceed in forma
pauperis together with a second, superfluous notice of appeal. On June 15,
2015, the PCRA court granted counsel’s motion to withdraw and granted
Appellant leave to proceed in forma pauperis. Accordingly, per Cooper, we
(Footnote Continued Next Page)

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      On appeal, Appellant raises the following issues for our review.

             1.     Did counsel render ineffective assistance for
             failing to conduct pre-trial investigation and render
             ineffective assistance for failing to utilize funds
             available to acquire evidence of actual innocence,
             and did counsel render ineffective assistance for
             coercing [Appellant] to plea[d] nolo contendere when
             there is a greater chance of being found not guilty by
             jury trial based on a lack of evidence showing guilt?

             2.    Has the district attorney withheld material DNA
             evidence and other evidence showing [Appellant’s]
             factual innocence and has this deprived [Appellant]
             of 14th Amendment due process right to fairness in
             the judicial process?

             3.    Did judicial misconduct occur in the plea
             process when there was no factual basis for the plea
             placed on the record?

             4.     Did the [PCRA] court commit plain error in it’s
             [sic] review of [Appellant’s] [PCRA] petition, and did
             the [PCRA] court commit reversible error by
             appointing unrequested counsel and then allow[ing]
             counsel to withdraw without a hearing, and is
             [Appellant] entitled to withdraw the plea and
             proceed to trial?

Appellant’s Brief at 5.

      “Our standard of review of [an] order granting or denying relief under

the PCRA requires us to determine whether the decision of the PCRA court is

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

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


                       _______________________
(Footnote Continued)
deem Appellant’s premature pro se notice of appeal to be timely and
perfected.


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findings in the certified record.”   Commonwealth v. Melendez-Negron,

123 A.3d 1087, 1090 (Pa. Super. 2015) (citation omitted).

            To be entitled to PCRA relief, appellant must
            establish, by a preponderance of the evidence, his
            conviction or sentence resulted from one or more of
            the enumerated errors in 42 Pa.C.S. § 9543(a)(2),
            his claims have “not been previously litigated or
            waived[,]” and “the failure to litigate the issue prior
            to or during trial, … or on direct appeal could not
            have been the result of any rational, strategic or
            tactical decision by counsel.” Id., § 9543(a)(3)-(4).
            An issue is previously litigated if “the highest
            appellate court in which [appellant] could have had
            review as a matter of right has ruled on the merits of
            the issue[.]” Id., § 9544(a)(2). An issue is waived
            if appellant “could have raised it but failed to do so
            before trial, at trial, … on appeal or in a prior state
            post[-]conviction proceeding.” Id., § 9544(b).

Commonwealth v. Fears, 86 A.3d 795, 803-804 (Pa. 2014).

      In this case, because the PCRA court dismissed Appellant’s petition

without first conducting a hearing, we note the following.

            [A] petitioner is not entitled to a PCRA hearing as a
            matter of right; the PCRA court can decline to hold a
            hearing if there is no genuine issue concerning any
            material fact and the petitioner is not entitled to
            post-conviction collateral relief, and no purpose
            would be served by any further proceedings. A
            reviewing court on appeal must examine each of the
            issues raised in the PCRA petition in light of the
            record in order to determine whether the PCRA court
            erred in concluding that there were no genuine
            issues of material fact and in denying relief without
            an evidentiary hearing.

Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa. Super. 2015)

(internal quotation marks and citations omitted).


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      As remarked by the Commonwealth and the PCRA court, as part of his

plea agreement, Appellant agreed to waive his direct appeal rights and his

right to collaterally challenge his plea. Commonwealth’s Brief at 9-10; PCRA

Court Order 4/24/15, at 2 n.2; see Written Waiver of Appeal Rights

Colloquy, 1/14/14, 1-7. We proceed to address the validity of this waiver as

a threshold issue.

            This Court has recognized “the importance of the
            plea bargaining process as a significant part of the
            criminal justice system. Under this aspect of the
            system, a defendant is permitted to waive valuable
            rights in exchange for important concessions by the
            Commonwealth when the defendant is facing a slim
            possibility of acquittal.”

Commonwealth v. Widmer, 120 A.3d 1023, 1027 (Pa. Super. 2015),

quoting Commonwealth v. Byrne, 833 A.2d 729, 735 (Pa. Super. 2003).

            It is beyond cavil that a defendant has an absolute
            right to appeal, Pa. Const. art. V, sec. 9, and the
            ultimate decision of whether to do so must be made
            by the defendant and not counsel. At the same
            time, it is well settled that a defendant may waive
            the right to appeal, provided such waiver is a
            knowing and intelligent act on the part of a
            defendant.

Commonwealth v. Dosch, 501 A.2d 667, 670 (Pa. Super. 1985) (internal

quotation marks and citations omitted) (holding the defendant’s knowing

and voluntary waiver of post-trial review in one case, as part of a plea

bargain in a separate case, was valid).

            We are aware of no authority that provides an
            impediment to a defendant’s express, knowing, and
            voluntary waiver of a statutory right if that waiver is

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           key in obtaining a bargained-for exchange from the
           Commonwealth. Indeed… the case law supports the
           conclusion that a statutory right can be waived.

Byrne, supra at 736.     “Most jurisdictions permit a capital defendant to

waive direct appellate review and/or post-conviction proceedings, and

Pennsylvania is no exception.”   Commonwealth v. Saranchak, 810 A.2d

1197, 1199 (Pa. 2002).

     It is axiomatic, however, that guilty pleas, including nolo contendere

pleas, and waivers of constitutional rights must be made knowingly,

intelligently, and voluntarily. See Dosch, supra.

           The determination whether an accused has
           knowingly and voluntarily waived his constitutional
           rights depends on the facts of each particular case.
           These circumstances include the background,
           experience, and conduct of the accused. The
           government has the burden to prove, by a
           preponderance of the evidence, that the waiver was
           the product of a free and deliberate choice rather
           than intimidation, coercion, or deception and was
           made with a full awareness both of the nature of the
           right being abandoned and the consequences of the
           decision to abandon it.

Commonwealth v. Kunkle, 79 A.3d 1173, 1182 (Pa. Super. 2013)

(internal quotation marks and citations omitted), appeal denied, 114 A.3d

1039 (Pa. 2015).

     Instantly, Appellant claims his plea, and by extension his waiver of his

direct appeal and collateral challenge rights, were not voluntary, but were

coerced by his plea counsel.     Specifically, Appellant claims that the trial

court had authorized significant resources to the defense for representation

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and investigation purposes, but that “after all that [m]oney was granted to

Counsel for [Appellant’s] [d]efense [c]ounsel [c]oercively forced [Appellant]

to [p]lea [n]olo [c]ontendere to the Commonwealth’s allegations in the

Information alleging the [s]tatute [v]iolations.” Appellant’s Brief at 10-11.

Appellant surmises that a more extensive investigation would have raised a

question as to the correct time of death, which in turn would have bolstered

an alibi defense. Id. at 12-14. “[Plea counsel] rendered further ineffective

assistance by coercing [Appellant] to believe he had no chance of wining

[sic] a [t]rial by [j]ury and that it would be best for him to [p]lea [n]olo

[c]ontendere to the [c]rimes [a]lleged, under the warped concept that he

would maintain his innocence….” Id. at 15.

           [A]s a result of Counsels[’] action [Appellant] was
           deprived of the [r]ight to the effective assistance of
           [c]ounsel for his defense and his 6th and 14th
           Amendment right to have a [t]rial by [j]ury, thus,
           the [p]lea of [n]olo [c]ontendere must be
           [w]ithdrawn and [Appellant] must be permitted to
           proceed to [t]rial before a [j]ury, wherein the clear
           [d]efense of [a]libi can be presented … or in the
           least this matter should be remanded back to the
           [t]rial/[p]lea [c]ourt so that a[] [r]ecord can be
           created so that [plea counsel] can explain why they
           coerced [Appellant] ….

Id. at 16-17.

     Appellant’s contentions are belied by the record.    We recognize that

“[a] valid guilty plea must be the defendant’s own voluntary and intelligent

choice, not merely the choice of counsel.” Commonwealth v. Velasquez,

263 A.2d 351, 353 (Pa. 1970) (citation omitted). However, “[d]isappointed

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expectations alone do not vitiate guilty pleas.         Likewise, a desire to limit

one’s penalty by pleading guilty is not a ground on which to base a claim of

involuntariness.”      Commonwealth v. Siers, 464 A.2d 1307, 1311 (Pa.

Super. 1983) (citations omitted).              In addition, an appellant may not

challenge the voluntariness of a guilty plea by asserting he lied under oath

during the trial court’s colloquy.         Commonwealth v. Pollard, 832 A.2d

517, 523 (Pa. Super. 2003).

       Here, at the time of his plea, Appellant was fully aware of the

circumstances he now cites as supporting a defense at trial. These include

the facts supporting the charges against him, the extent of the defense

investigations, and any potential alibi defense he might have.4 Even if plea

counsel opined about Appellant’s chances if the case proceeded to trial, and

advised Appellant to accept the plea offer in this case, such would not

constitute coercion.       Cf. Velasquez, supra (holding where, inter alia,

counsel sought to withdraw if defendant would not accept a plea,

subsequent plea was not voluntary).




____________________________________________
4
  As recited by the Commonwealth during Appellant’s plea hearing, those
facts include, inter alia, Appellant’s admission, corroborating witness
statements, that he solicited others to help him rob the victims; Appellant’s
departure shortly after the murders for Florida, flush with an unaccustomed
amount of cash; Appellant’s statement to one of his girlfriends that he was
present at the victims’ home at the time of the murders, but “that it wasn’t
supposed to go down like that”; and blood matching one of the victims found
on a pair of Appellant’s sneakers. See N.T., 1/14/14, at 49-55.


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      Instantly, Appellant signed a written plea agreement wherein he

expressly waived his right to file an appeal or a collateral attack on his plea.

See Written Waiver of Appeal Rights Colloquy, 1/14/14, 1-7.             Therein,

Appellant further acknowledged the following.

            6. …
                   g.    I agree to never seek or file, or have
                   filed on my behalf, any claims of ineffective
                   assistance of counsel, including but not limited
                   to: a claim of lack of preparation for trial, lack
                   of defense strategy, failure to file pre-trial
                   motions and/or a claim of any defense attorney
                   errors. I know that I am now giving up these
                   rights forever.

                                        …

            9.   I have read this colloquy same, in its entirety,
            with my counsel Paul Levy, Esquire and David
            Melman, Esquire. I have no questions regarding the
            terms and conditions of this agreement and I
            understand exactly what is written here.

            10. I am satisfied with advice and service I have
            received from my counsel Paul Levy[,] Esquire and
            David Melman, Esquire. I have discussed my case
            fully with defense counsel. My Lawyers have spent
            sufficient time on my case and I had sufficient time
            to discuss my case fully with my lawyers.

            11. My lawyers, Paul Levy, Esquire and David
            Melman, Esquire, have left the final decision as to
            what to do on my case with me, and I have decided,
            myself, to accept the terms and conditions of this
            agreement.

            12. My lawyers, Paul Levy, Esquire and David
            Melman, Esquire, have fully explained to me what it
            means to accept the terms and conditions of this
            agreement and have reviewed and explained this
            written agreement colloquy with me and it is my

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             decision to accept all terms and conditions this
             written agreement.

             13. I     admit    and    acknowledge   that    the
             Commonwealth has sufficient evidence to convict me
             of two (2) counts of First Degree Murder for the
             deaths of Althea and Jeannette Walbert.

Id. at 4, 6 ¶¶ 6-g, 9-13.

      In addition, the trial court performed an extensive oral colloquy

advising Appellant of the nature of the charges, the nature of a nolo

contendere plea, a summary of the facts underlying the charges, the

elements of the plea agreement, and the rights Appellant gives up by

entering his plea.   N.T., 1/14/14, 1-24.    During the colloquy, Appellant

unequivocally stated he had explored all issues with plea counsel and that he

was satisfied with their representation. Id. at 30-31, 35. Appellant denied

anyone forced him to enter his plea. Id. at 36. Additionally, the trial court

carefully reviewed with Appellant his waiver of his appeal and collateral

challenge rights, to which Appellant acknowledged his understanding and

agreement. Id. at 37-40. That exchange included the following.

             THE COURT:       Okay. Again, you can’t and you
             won’t make allegations about your counsel, Correct?

             [APPELLANT]:     Yes, Your Honor.

             THE COURT:       You won’t come back and say the
             reason that I ended up pleading was because my
             counsel were two dopes who led me astray.

             [APPELLANT]:     No, Your Honor.

Id. at 40.

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      Our review of the record leads us to conclude Appellant’s nolo

contendere plea and his waiver of his collateral challenge rights were

knowing, intelligent and voluntary. Appellant has alleged nothing to support

his self-serving allegation of coercion by plea counsel.   His speculations

about a possible defense are not based on new or unknown facts and do not

support his claim of coercion. We agree with the PCRA court that Appellant’s

right to seek post-conviction relief was validly waived and Appellant is not

entitled to relief.   See Kunkle, supra; Dosch, supra.      Accordingly we

affirm the PCRA court’s April 24, 2015 order dismissing Appellant’s PCRA

petition without a hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/11/2016




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