J-S26045-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

CODY D. WUNDER

                        Appellant                   No. 1664 MDA 2014


              Appeal from the PCRA Order September 25, 2014
             In the Court of Common Pleas of Lancaster County
            Criminal Division at No(s): CP-36-CR-0004643-2012


BEFORE: OTT, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                             FILED MAY 01, 2015

     Appellant Cody Wunder appeals from an order dismissing his petition

for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et

seq. We affirm.

     Appellant, along with codefendants Kyle Wunder (appellant’s brother)

and Stephen Harmer, broke into Douglas Herr’s residence in order to steal

the contents of a safe.   Appellant and Kyle Wunder knew that Herr kept

large sums of cash at the residence.      Harmer drove appellant and Kyle

Wunder to Herr’s residence and waited nearby in a vehicle while the brothers

entered the residence. Kyle Wunder shot and killed Herr during the break-

in. Appellant and Kyle Wunder stole cash from the safe and split the cash

with Harmer.



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        Subsequently, appellant and Kyle Wunder were arrested and charged

with homicide1 and related offenses. On July 12, 2013, appellant pled guilty

to second degree murder, robbery,2 conspiracy to commit robbery,3

burglary4 and conspiracy to commit burglary.5 On August 15, 2013, the trial

court sentenced appellant to life imprisonment without parole for second

degree murder and a concurrent term of 10-20 years’ imprisonment for

conspiracy to commit robbery.           The sentences on the remaining charges

merged for purposes of sentencing.

        On May 23, 2014, appellant filed a timely PCRA petition.     The court

appointed PCRA counsel, who filed an amended PCRA petition. On August

13, 2014, the PCRA court filed a notice of intent to dismiss the PCRA petition

without a hearing. On September 24, 2014, the PCRA court dismissed the

petition.   Through counsel, appellant filed a timely notice of appeal.   Both

appellant and the PCRA court complied with Pa.R.A.P. 1925.

        Appellant raises a single issue in this appeal:




____________________________________________


1
    18 Pa.C.S. § 2502.
2
    18 Pa.C.S. § 3701.
3
    18 Pa.C.S. § 903.
4
    18 Pa.C.S. § 3502.
5
    18 Pa.C.S. § 903.



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            Whether the lower court erred in denying
            [appellant’s] amended PCRA [petition] without
            holding a hearing[,] when counsel was ineffective by
            permitting [appellant] to plead guilty to second
            degree murder as part of a package plea agreement
            where the Commonwealth agreed not to seek the
            death penalty for his brother and codefendant, Kyle
            Wunder?

Brief for Appellant, p. 4.

      Our standard and scope of review are well-settled:

            We review an order dismissing a petition under the
            PCRA in the light most favorable to the prevailing
            party at the PCRA level. This review is limited to the
            findings of the PCRA court and the evidence of
            record. We will not disturb a PCRA court’s ruling if it
            is supported by evidence of record and is free of
            legal error. This Court may affirm a PCRA court’s
            decision on any grounds if the record supports it. We
            grant great deference to the factual findings of the
            PCRA court and will not disturb those findings unless
            they have no support in the record. However, we
            afford no such deference to its legal conclusions.
            Further, where the petitioner raises questions of law,
            our standard of review is de novo and our scope of
            review is plenary.

Commonwealth v. Rykard, 55 A.3d 1177, 1183–84 (Pa.Super.2012).

      When a petitioner alleges ineffective assistance of counsel,

            he must prove by a preponderance of the evidence
            that his conviction or sentence resulted from
            ineffective assistance of counsel which, in the
            circumstances of the particular case, so undermined
            the truth-determining process that no reliable
            adjudication of guilt or innocence could have taken
            place. We have interpreted this provision in the
            PCRA to mean that the petitioner must show: (1)
            that his claim of counsel’s ineffectiveness has merit;
            (2) that counsel had no reasonable strategic basis
            for his action or inaction; and (3) that the error of
            counsel prejudiced the petitioner - i.e., that there is

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            a reasonable probability that, but for the error of
            counsel, the outcome of the proceeding would have
            been different. We presume that counsel is
            effective, and it is the burden of Appellant to show
            otherwise.

Commonwealth v. DuPont, 860 A.2d 525, 531 (Pa.Super.2004), appeal

denied, 889 A.2d 87 (Pa.2005), cert. denied, 547 U.S. 1129, 126 S.Ct 2029,

164 L.Ed.2d 782 (2006) (internal citations and quotations omitted). The

petitioner bears the burden of proving all three prongs of this test.

Commonwealth v. Meadows, 787 A.2d 312, 319-320 (Pa.2001). “If an

appellant fails to prove by a preponderance of the evidence any of the[se]

prongs, the Court need not address the remaining prongs of the test.”

Commonwealth v. Fitzgerald, 979 A.2d 908, 911 (Pa.Super.2009), appeal

denied, 990 A.2d 727 (2010) (citation omitted).

      In his lone argument, appellant contends that trial counsel was

ineffective for permitting him to enter a guilty plea involuntarily. Appellant

insists that he was coerced into pleading guilty due to the Commonwealth’s

threat to pursue the death penalty against his brother, Kyle Wunder, if

Appellant proceeded to trial.

      “Allegations of ineffectiveness in connection with the entry of a guilty

plea will serve as a basis for relief only if the ineffectiveness caused the

defendant to enter an involuntary or unknowing plea.” Commonwealth v.

Hickman, 799 A.2d 136, 141 (Pa.Super.2002) (citing Commonwealth v.

Allen, 557 Pa. 135, 732 A.2d 582 (1999)). Whether a plea is voluntary



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“depends on whether counsel’s advice was within the range of competence

demanded of attorneys in criminal cases.” Commonwealth v. Lynch, 820

A.2d 728, 733 (Pa.Super.2003), appeal denied, 835 A.2d 709 (Pa.2003)

(quoting Hickman, 799 A.2d at 141). “[T]he law does not require that [the

defendant] be pleased with the outcome of his decision to enter a plea of

guilty: All that is required is that [his] decision to plead guilty be knowingly,

voluntarily, and intelligently made.” Commonwealth v. Willis, 68 A.3d

997, 1001 (Pa.Super.2013) (quoting Commonwealth v. Anderson, 995

A.2d 1184, 1192 (Pa.Super.2010) (alterations in original)). A guilty plea

colloquy must “affirmatively demonstrate the defendant understood what the

plea connoted and its consequences.” Id. at 1002 (quoting Commonwealth

v. Lewis, 708 A.2d 497, 501 (Pa.Super.1998)). After a defendant enters a

guilty plea, “it is presumed that he was aware of what he was doing, and the

burden    of    proving   involuntariness   is   upon    him.”   Id.    (quoting

Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa.Super.2008)).

      Courts must deem a guilty plea involuntary "if the accused was

innocent but pled guilty solely to eliminate the possibility of another's

jeopardy."     Commonwealth v. DuPree, 275 A.2d 326, 327 (Pa.1971)

(emphasis added).     The proper inquiry, DuPree held, is "whether [the]

appellant primarily entered his guilty plea [to eliminate the possibility of

another's jeopardy] or whether it was only one of many considerations." Id.

at 328.


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      Based on our review of the record, we agree with the PCRA court that

appellant’s claim lacks arguable merit.    During appellant’s guilty plea, the

court informed appellant of the nature of the charges, and appellant stated

that he understood each of the charges. N.T., 7/12/13, at 8-11. The court

asked the Assistant District Attorney (“ADA”) to read the factual basis for the

plea, and the ADA stated the factual basis. Id. at 11-13. Appellant stated

that he understood the factual basis and that he did not disagree with these

facts. Id. at 13-14. The court informed appellant of the maximum ranges

of each of the charges. Id. at 14-16. Appellant stated he understood. Id.

The court inquired into the guilty plea colloquy, asking appellant if he signed

the line above his name as well as if he understood the rights contained

therein. Id. at 16-17. Appellant stated he understood these rights and did

not have any questions. Id. The court informed appellant of his right to a

jury trial. Id. at 17-18. Appellant stated he understood.      Id.   The court

informed appellant that he is presumed innocent, and it would be the

Commonwealth’s burden to prove his guilt beyond a reasonable doubt. Id.,

p. 17.   Appellant stated he understood.    Id.   The court asked appellant if

anyone had promised him anything, threatened him, or coerced him in any

way. Id., p. 18. Appellant stated “no.” Id.

      Additionally, at sentencing on August 15, 2013, the ADA stated that

appellant provided a detailed statement of all participants’ involvement in

the homicide, and that his cooperation and testimony was critical in the


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successful prosecution of Stephen Harmer. N.T., 8/15/13, p. 6. The court

asked appellant if he had anything that he wished to say.          Id. at 8.

Appellant answered “no.” Id. Furthermore, appellant was present while his

co-defendant and brother, Kyle Wunder, was sentenced.        The ADA stated

that Kyle had provided a detailed statement of all participants’ involvement

in the homicide, and that his cooperation led to appellant’s statement. Id.

at 12.   The ADA noted that Kyle took full responsibility for his role and

provided a sequence of events surrounding the shooting of Douglas Herr, the

disposal of the shotgun, and an accounting of his proceeds from the robbery.

Id. at 12-13.    The ADA stated that in exchange for Kyle Wunder’s guilty

plea, the Commonwealth would not be seeking the imposition of the death

penalty. Id. at 13.

      Based on our review of the record, we conclude that appellant

knowingly, voluntarily and intelligently entered into his guilty plea. He told

the court that nobody forced him to plead guilty, that he understood the

charges against him, and that he understood the permissible range of

sentences for all charges.         Moreover, as the Commonwealth noted at

sentencing, appellant voluntarily provided a statement that inculpated

himself as well as his brother and Harmer. The record leaves no doubt as to

the validity of his guilty plea.

      The record also demonstrates that appellant did not plead guilty

primarily to save his brother from prosecution or from the death penalty.


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While helping his brother might have factored into appellant's decision,

appellant's   primary   motivation   for   pleading   guilty   was   because   of

overwhelming evidence of his guilt arising from his brother's comprehensive

confession and his own confession relating to the murder.            No realistic

alternative existed for appellant other than to plead guilty and accept the

negotiated penalty.     Unlike DuPree, this is not a case where an innocent

defendant pled guilty simply to avoid subjecting a beloved relative to

prosecution. Nothing in the record indicates that appellant pled guilty under

circumstances that render his plea involuntary.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/1/2015




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