J-S74007-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TYREEK TORRENCE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1906 EDA 2018

Appeal from the Order Entered June 12, 2018

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0009952-2013

BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: Filed: February 7, 2020

Appellant, Tyreek Torrence, appeals from the order denying his petition 

for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. 

§§ 9541-9546. After careful review, we affirm. 

On April 7, 2015, Appellant entered an open guilty plea to the crimes of 

robbery, robbery of a motor vehicle, conspiracy to commit robbery, and two 

firearm offenses. At Appellant’s guilty plea hearing, the Commonwealth 

summarized the factual basis for the plea as follows:

[I]f the Commonwealth w[ere] to go to trial, it would present the 

live testimony of Ronald Brown, who was 44 at the time of the

incident. [H]e would indicate that he was working at Carnival Four 

Pizza back on July 17th of 2013, around 10 o’clock or so in the 

evening, when he received a phone call for a delivery of pizza to 

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* Former Justice specially assigned to the Superior Court.
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the address of 1139 Union Street in West Philadelphia. The phone 

number that called him was (702) 540-[...].

[W]hen Mr. Brown got to th[at] address..., he went up the stairs, 

rang the doorbell and was waiting for individuals to come to the 

door. At the same time, ... Mr. Brown saw [Appellant], as well as 

Marvin Alsbrook, ... both of whom were known to him in the area. 

He [had] seen them on five to six occasions in the area of 1123 

North 41st Street. He saw them approaching him while he was 

standing on those steps. 

[]Marvin Alsbrook was armed with a .38 revolver and approached 

Mr. Brown and asked him what was up. At that time[,] Mr. Brown 

[dropped] his keys, and [Appellant grabbed him] by his shirt collar 

and led him down the steps. At that time, Marvin Alsbrook went 

up the steps [and] picked up Mr. Brown’s keys. [Appellant] then 

took Mr. Brown to the ground and went into his pockets and took 

his money and ... his wallet.

[Subsequently,] Marvin Alsbrook went into the victim’s vehicle, 

and [Appellant] followed in after. Marvin Alsbrook drove the 

vehicle away.

[T]he Commonwealth would also present the live testimony of 

Police Officer Robinson.... He would indicate that he was on duty 

as a 39th District police officer four days after the carjacking on

July 21st of 2013, around 6:17 or so in the evening.

[Officer Robinson] was working in the area of the 3400 block of 

Sydenham Street ... when he came into contact with the vehicle 

that was taken during the carjacking. It was a 2003 gray Chrysler 

Town and Country minivan.

[]Officer Robinson conducted a[] check of that vehicle, and ... 

confirmed that the vehicle was in stolen status and was taken at 

a point of gun, in a carjacking, four days before.

Officer Robinson followed the vehicle, at which time he noticed 

that [it] picked up speed, and he lost sight of [it] due to the rate 

of speed that [it] was traveling. When he finally caught up to the 

vehicle, he noticed [Appellant and Appellant’s] girlfriend[] exiting 

[it] rather quickly. [Officer Robinson ordered] them to stop.

[S]ubsequently, Mr. Brown made an identification of [Appellant]

as being the individual [who] went into his pockets and led him 

down the steps during the carjacking.
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Additionally, it should be noted that[, on the night of the incident,]

Mr. Brown ... positively identified Marvin Alsbrook ... in the 

computer system.

Mr. Brown would testify that he did not give [Appellant] or Marvin 

Alsbrook permission to take his money, his cell phone[,] or his car 

keys, and the car keys were recovered from [Appellant] when he 

was arrested.

[Appellant] is not licensed to carry a firearm in the Commonwealth 

of Pennsylvania. And[,] if we were to go to trial, for purposes of 

[18 Pa.C.S. §] 6105, ... I would mark [Appellant]’s criminal extract 

out of CP-90498-2009, which indicates a prior felony adjudication 

for robbery, gunpoint robbery, which makes him ... ineligible to

possess a firearm [pursuant to Section 6105], and I would move 

those items into evidence and rest.

N.T., 4/7/15, at 17-21. 

The trial court accepted Appellant’s plea, and the case immediately 

proceeded to sentencing. “The Commonwealth requested a sentence of 20 to 

40 years[’]” incarceration, while the “defense made no recommendation as to 

the term of the sentence, but did request a downward departure from the 

sentencing guidelines.” PCRA Court Opinion (“PCO”), 5/16/19, at 2. When 

afforded his right to allocution, Appellant apologized to Mr. Brown for his 

crimes. Id. at 3. Subsequently, the trial court sentenced Appellant to an 

aggregate term of 61⁄2-33 years’ incarceration, followed by a 20-year term of 

probation. Appellant did not file post-sentence motions, nor did he file a direct 

appeal, despite the trial court’s advising him of his rights to do so following 

sentencing. Id. at 3-4. 

On March 7, 2016, Appellant filed a pro se PCRA petition, and appointed 

counsel filed an amended petition on his behalf on November 1, 2017. In 

essence, Appellant argued, inter alia, that his guilty plea was involuntarily and 
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unlawfully induced by pressure from his trial counsel. The PCRA court held an 

evidentiary hearing on June 12, 2018, where both Appellant and his trial

counsel, Attorney Jason C. Kadish, testified. As recounted by the PCRA court, 

Appellant

testified that he took an open plea and that he was “okay” with 

the minimum sentence of 61⁄2 years[’ incarceration], but was 

under the impression that his maximum sentence would be 13 

years[’ incarceration]. N.T., [6/12/18], [at] 10.... He also testified 

that [Attorney] Kadish had advised him afterwards that he would 

file a Motion for Reconsideration of Sentence. [Id. at 11.] This 

conversation allegedly occurred in the “basement” [of the Criminal 

Justice Center]. [Id.]

On cross-examination, [Appellant] acknowledged signing the 

written guilty plea colloquy and understood that he could have 

been sentenced up to 72 years in prison. [Id. at 18]. [Appellant] 

also testified that afterwards he asked trial counsel only for 

reconsideration, but not an appeal. [Id. at 19]. 

The Commonwealth called [Attorney] Kadish ... who testified 

that[,] prior to the start of the underlying trial[,] he had filed a 

motion to suppress evidence[,] which was denied, but that he was 

successful in arguing against the Commonwealth’s motion to 

admit prior bad acts of his client. [Id. at 22]. To the best of his 

recall at the time, he believed the minimum aspect of the sentence 

was negotiated at 61⁄2 years, but the “top end” was not. [Id. at 

23]. He also recalled

[]discussing the case with [Appellant]. I remember talking 

about the strength of the case against him and Mr. Alsbrook. 

Because I do believe that Mr. Alsbrook subsequently went 

to trial. But I think I talked about if we went to trial[,] the 

case was going to proceed against the both of them 

together. It was going to be a joint trial. I t[ol]d ... him that 

I did not think that there was a likely chance that we would 

prevail in a significant way at the time of trial. I told him 

that, based upon the charges in the case, that if we did not 

prevail in a significant manner, meaning that the serious 

charges you were acquitted of, that he would be facing a 

very severe sentence from the [c]ourt after a jury trial. And 
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I discussed with him that the customary things that I would 

-- that if we did enter into a non-trial the standard rights he 

would be giving up. But the fact is that we had already 

litigated a pretrial motion to suppress, so the difference 

[was] what [we] would ... be able to appeal would be limited 

afterwards.

[Id.]

[Attorney] Kadish had no recollection of speaking with [Appellant] 

once the matter concluded in the courtroom. [Id. at 30]. He 

further had no recall of speaking to his client “downstairs”

afterwards. [Id. at 30-31]. He also stated that in [a] case 

involving a plea, if a client asked to file an appeal, his general 

practice would be to file a post-sentence motion in light of the 

appellate rights waived when the plea is entered. [Id. at 31-32]. 

If counsel believed the sentence imposed was illegal, he would 

himself file a motion for post-trial relief. [Id. at 32].

When asked on cross-examination as t[o] whether he was taken 

aback by the sentence imposed, [Attorney] Kadish stated:

[]I am not taken aback. I mean, I would have hoped -- I 

mean, I am always trying to get the lowest possible 

sentence for my client. I think it’s worth discussion if you’re 

asking me to evaluate the sentence, was that this case was 

ready to proceed to trial before Judge Wogan and it was my 

impression that after trial, which I did not feel that we would 

prevail in any significant way after he testified, that Judge 

Wogan, after a jury trial, in both my experience from 2005 

to 2011 as a prosecutor and that following from 2011 up 

until the time of [Appellant]’s plea, that in both cases I 

prosecuted and in cases I’ve defended in front of Judge 

Wogan, that after a jury trial in many cases he had a 

practice of imposing consecutive sentences on charges for 

which somebody was convicted....

And given that I believe that the guidelines were somewhat 

significant in this case, the Commonwealth had presented 

through other[-]acts evidence that they weren’t going to be 

able to introduce at trial, but I believe that through my 

discussions with [the prosecutor], [she] felt that there were 

a number of aggravating circumstances in this case, which 

would be emphasized if we went to sentencing. And I don’t 

know what exactly was read onto the record, without 
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reviewing it, at the time of the plea and then subsequent 

sentencing.

[Id. at 33-34.] 

Upon conclusion of the testimony, this [c]ourt found [Attorney] 

Kadish’s testimony to be credible and also determined that 

[Appellant]’s open guilty plea was made in a[] knowing, intelligent 

and voluntary manner, and was not in any way coerced, resulting 

in a denial of PCRA relief.

PCO at 4-6. 

Appellant filed a timely notice of appeal, and a timely, court-ordered 

Pa.R.A.P. 1925(b) statement. The PCRA court issued its Rule 1925(a) opinion 

on May 16, 2019. Appellant now presents the following question for our 

review: “Whether the [PCRA] court erred in not granting relief on the PCRA 

petition alleging counsel was ineffective[?]”

1

 Appellant’s Brief at 7.

As Appellant filed a timely PCRA petition, and because there is no 

dispute that his ineffectiveness-of-counsel claim is cognizable under the PCRA 

statute, we immediately proceed to the merits of his infectiveness claim. 

Our standard in reviewing a PCRA court order is abuse of 

discretion. We determine only whether the court’s order is 

supported by the record and free of legal error. This Court grants 

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1

In Appellant’s Rule 1925(b) statement, he raised two claims. As presented 

in his brief, Appellant alleged that counsel was ineffective for “causing 

[Appellant] to enter an unknowing or involuntary guilty plea.” Appellant’s 

Amended 1925(b) Statement, 8/17/18, at 1 ¶ A. He also asserted that the 

“guilty plea was unlawfully induced.” Id. at ¶ B. Appellant abandons the 

second claim in his statement of the questions presented, but then raises the 

matter as a subpart of his ineffectiveness claim in the Argument section of his 

brief. See Appellant’s Brief at 16. We conclude that these claims are, in fact, 

identical, as both assert that counsel’s ineffectiveness caused Appellant to 

enter his plea involuntarily. Accordingly, we decline to deem Appellant’s 

unlawful-inducement claim waived due to his failure to present it separately 

in his statement of the questions presented.
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great deference to the findings of the PCRA court, and we will not 

disturb those findings merely because the record could support a 

contrary holding. We will not disturb the PCRA court’s findings 

unless the record fails to support those findings.

Commonwealth v. Rathfon, 899 A.2d 365, 368–69 (Pa. Super. 2006) 

(cleaned up). 

It is axiomatic that criminal defendants have a right to the effective 

assistance of counsel when entering a guilty plea. Id. at 369. Additionally, a 

“defendant is permitted to withdraw his guilty plea under the PCRA if 

ineffective assistance of counsel caused [him] to enter an involuntary plea of 

guilty.” Id. (quoting Commonwealth v. Kersteter, 877 A.2d 466, 468 (Pa.

Super. 2005)).

We conduct our review of such a claim in accordance with the 

three-pronged ineffectiveness test under section 9543(a)(2)(ii) of 

the PCRA, 42 Pa.C.S.[] § 9543(a)(2)(ii). The voluntariness of the 

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

competence demanded of attorneys in criminal cases.

In order for Appellant to prevail on a claim of ineffective assistance 

of counsel, he must show, by a preponderance of the evidence, 

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. Appellant must demonstrate: (1) the underlying claim is of 

arguable merit; (2) that counsel had no reasonable strategic basis 

for his or her action or inaction; and (3) but for the errors and 

omissions of counsel, there is a reasonable probability that the 

outcome of the proceedings would have been different. The 

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

Id. (cleaned up). 

We begin our analysis by determining whether there is arguable merit 

to Appellant’s ineffective-assistance-of-counsel claim(s). Appellant asserts 
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that there is arguable merit to his ineffectiveness claim(s) because trial 

counsel’s “coercive actions played a large roll in the unlawful inducement of”

his guilty plea. Appellant’s Brief at 17. He alleges that trial counsel never 

adequately informed him regarding the maximum sentence he could receive, 

nor the fact that he could not appeal the denial of his suppression motion if 

he entered a guilty plea. Appellant also claims that he requested, but trial 

counsel failed to file, a post-sentence motion for reconsideration of his 

sentence.

As to the first allegation, Appellant asserts that through conversations 

with Attorney Kadish, he expected the minimum sentence of 61⁄2 years’

incarceration. Id. at 13. However, “Appellant was under the impression after 

speaking to [Attorney Kadish] that the maximum” sentence would be twice 

the minimum, or 13 years’ incarceration. Id. Thus, Appellant contends that 

his maximum sentence was 20 years longer than he expected based on his 

consultation with Attorney Kadish. 

The PCRA court determined that the “only conclusion one can reach 

based upon [Appellant]’s PCRA hearing testimony is that he was unhappy with 

the maximum sentence that was imposed. Nothing in the record suggests 

that Attorney Kadish made representations that his sentence would simply be 

double the minimum....” PCO at 10. The trial court informed Appellant of the 

maximum penalties for each of the offenses during the guilty plea colloquy. 

See N.T., 4/7/15, at 7-8. Nothing in the record of the plea/sentencing hearing 
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indicates Appellant’s expectation for a specific maximum sentence. 

Furthermore, Attorney Kadish testified he would have discussed with Appellant 

what the parameters of the plea were or what the guidelines were. 

But it was an open guilty plea. I am sure we would have discussed 

that the [c]ourt had the complete discretion to sentence, to 

impose whatever sentence. I think I probably would have 

discussed what I believe that -- I always talk with the client about 

what I believe they would receive for a sentence.

N.T., 6/12/18, at 34. The PCRA court found Attorney Kadish’s testimony 

credible.

Appellant’s entering an open plea gave the trial court wide discretion in 

crafting his sentence, and Attorney Kadish advised him of that fact. Although 

it appears that Attorney Kadish may have predicted a lesser maximum in his 

discussions with Appellant, that prediction was issued with the caveat that the 

sentence imposed was bound only by the statutory maximum sentences for 

the pled-to offenses. Appellant was informed of those parameters by the trial 

court during his plea colloquy. See N.T., 4/7/15, at 7-8. During the colloquy, 

Appellant indicated that his guilty plea was not contingent upon any promises 

made to him. Id. at 9. As the PCRA court found Attorney Kadish’s testimony 

credible, it necessarily found Appellant’s account not credible to the extent 

that he contends that Attorney Kadish promised him a particular maximum 

sentence when advising him to enter his guilty plea. Thus, we conclude that 

there is no arguable merit to this aspect of Appellant’s ineffectiveness claim. 

Appellant next asserts that Attorney Kadish failed to inform him that he 

would surrender his right to appeal from the order denying suppression as a 
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result of entering a guilty plea. However, nowhere in Appellant’s brief does 

he direct this Court’s attention to where in the record this claim is 

substantiated. Indeed, Appellant testified that he requested that Attorney 

Kadish file for reconsideration of his sentence, but that he did not request that 

his attorney file a direct appeal on his behalf. N.T., 6/12/18, at 11. This is 

simply incongruent with a claim that Appellant wanted or expected to appeal 

from the denial of his suppression motion; yet it is consistent with Attorney 

Kadish’s testimony that he did advise Appellant that, by entering a guilty plea, 

he would forgo certain appellate rights. Id. at 23-24. The fact that Attorney 

Kadish did advise Appellant of his forfeiture of such rights is further supported

by Attorney Kadish’s statement to Appellant on the record following 

sentencing. Id. at 55 (“You have thirty days to file a petition with the [c]ourt, 

with a higher [c]ourt, in regards to appeal on the limited grounds we’ve 

discussed prior to entering your guilty plea.”). In any event, at no time during 

Appellant’s testimony during the PCRA hearing did he state that he was not 

informed by counsel that he gave up his right to appeal on the suppression 

issue when he entered a guilty plea. Id. at 6-19. Moreover, the trial court 

informed Appellant during the plea colloquy of the limited grounds for appeal 

following a guilty plea, none of which included the right to challenge the denial 

of his suppression motion. N.T., 4/7/15, at 12-14. Consequently, due to the 

foregoing, we conclude that there is also no arguable merit to this aspect of 

Appellant’s ineffectiveness claim. 
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Finally, Appellant asserts that Attorney Kadish provided ineffective 

assistance of counsel by failing to file a motion for reconsideration of sentence 

on his behalf, despite ostensibly having asked him to do so. However, 

immediately following sentencing, Attorney Kadish asked Appellant, on the 

record, if Appellant wanted him to file a motion for reconsideration or an 

appeal on Appellant’s behalf. Id. at 55. Appellant answered, “[n]o.” Id. At 

the PCRA hearing, Appellant stated that he asked Attorney Kadish to file a 

motion for reconsideration of sentence after the hearing in the basement of 

the courthouse, and that the attorney responded that he would. See N.T., 

6/12/18, at 11. However, during Attorney Kadish’s testimony, he indicated 

that he did not recall speaking with Appellant after the plea/sentencing 

hearing. Id. at 30. He also indicated that had Appellant asked him to file the 

motion, he would have done so. Id. at 31. Based on this conflicting 

testimony, the PCRA court resolved the credibility question involved in favor 

of Attorney Kadish’s version of events. As such, the record supports the 

court’s conclusion that Appellant did not ask Attorney Kadish to file a motion 

for reconsideration of sentence on his behalf, and therefore there is no 

arguable merit to this aspect of his ineffective-assistance-of-counsel claim. 

As there are no issues of arguable merit underlying Appellant’s 

ineffectiveness-of-counsel claim(s), he is not entitled to relief. “Failure to 

prove any prong of th[e ineffectiveness] test will defeat an ineffectiveness 

claim.” Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014). 
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Accordingly, we conclude that the PCRA court did not err or abuse its discretion 

in denying Appellant’s PCRA petition. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/7/20