J.S07034/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

 Appellee

v.

KYLE WUNDER

 Appellant No. 845 MDA 2015

Appeal from the PCRA Order May 1, 2015

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0004642-2012

BEFORE: BOWES, OTT, and FITZGERALD, *JJ.

MEMORANDUM BY FITZGERALD, J.: FILED MARCH 11, 2016

Appellant, Kyle Wunder, appeals from the order entered in the 

Lancaster County Court of Common Pleas denying his first, timely petition 

filed pursuant to the Post Conviction Relief Act1(“PCRA”). Appellant 

challenges the validity of his plea and contends trial counsel was ineffective 

for failing to investigate a plea offer by the Commonwealth and failing to file 

a direct appeal. PCRA counsel has filed with this Court a Turner/Finley2

letter and petition for leave to withdraw. Because the PCRA court committed 

 

*

Former Justice specially assigned to the Superior Court.

1

42 Pa.C.S. §§ 9541-9546.

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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an error of law, we vacate the order, deny the petition to withdraw, and 

remand for further proceedings. 

The facts underlying Appellant’s convictions are not relevant to our 

disposition. On July 12, 2013, Appellant pleaded guilty to one count each of 

first-degree murder,3robbery,4 burglary,5and two counts of criminal 

conspiracy.6 On August 15, 2013, the trial court imposed a sentence of life 

without the possibility of parole. Appellant did not file a post-sentence 

motion or a direct appeal. 

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

The PCRA court appointed counsel for Appellant on September 11, 2014, and 

PCRA counsel filed an amended petition on December 1, 2014. In 

Appellant’s amended PCRA petition, he alleged ineffective assistance of 

counsel based on trial counsel’s failures to investigate a plea offer and file a 

requested direct appeal. Appellant’s Amended PCRA Pet., 12/1/14, at 2 

(unpaginated). Alternatively, Appellant alleged trial counsel was ineffective 

for failing to “hold the Commonwealth to the terms of the plea 

agreement[.]” Id. 

 

3 18 Pa.C.S. § 2502(a).

4 18 Pa.C.S. § 3701(a)(1)(i).

5 18 Pa.C.S. § 3502(a).

6 18 Pa.C.S. § 903(a)(1).
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The PCRA court held an evidentiary hearing on February 24, 2015. 

Appellant testified that he saw an e-mail from the district attorney to his 

counsel in April of 2013 indicating that if Appellant was willing to plead 

guilty, the Commonwealth would allow him to plead to second-degree 

murder. N.T. PCRA Hr’g, 2/24/15, at 5-6. Appellant testified that he was 

under the “impression” that he would enter a plea to second-degree murder. 

Id. at 15. However, Appellant testified that he was not “disputing” that his 

plea to first-degree murder was voluntary. Id. The Commonwealth 

proceeded to review Appellant’s guilty plea colloquy with Appellant on the 

record. Id. at 17-18. Thereafter, the Commonwealth asked Appellant, 

“[d]id you or did you not choose to plead guilty to first degree murder 

knowing the nature of the charge and knowing the facts that backed up that 

charge?” Id. at 18. Appellant responded, “[k]nowingly, yes.” Id. 

Trial counsel explained at the hearing that the Commonwealth did not 

offer a plea of second-degree murder for Appellant. Id. at 27-28. He 

testified, “there were discussions about offering [Appellant’s] brother 

second[-degree murder] in exchange for his cooperation. Second[-degree 

murder] was never on the table for [Appellant].” Id. at 28. Trial counsel 

further testified that the Commonwealth had notified him of its intent to 

seek the death penalty in Appellant’s case, and his strategy was to avoid the 

imposition of the death penalty. Id. at 32-33. 

After the evidence came out, after I was able to 

review the evidence, the gravity and weight of the 
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evidence against [Appellant], I knew that the 

Commonwealth had a tremendous amount of 

evidence to convict him.

* * *

There are certain death penalty cases where 

the Commonwealth seeks the death penalty and 

they’re kind of grasping at straws. That was not the 

case here. So I knew he had a very high chance of 

getting the death penalty. Getting that off the table 

and getting a plea was of utmost importance.

Id. at 32-33.

Appellant also testified regarding his request for a direct appeal:

[Appellant’s PCRA counsel:] You were sentenced on 

August 15th of 2013. Did you have any discussion 

before either of those dates with [trial counsel] in 

regards to appeal?

[Appellant:] On the date of July, [trial counsel] came 

and saw me at the prison, at Lancaster County, with 

the plea agreement and all that, and we talked about 

any motions for relief, for restitution and any other 

forms of relief I could get filed-wise in the courts.

Q. Okay. Now, that would have been before your 

sentence correct?

A. Yes. 

* * *

Q. After you were sentenced, did you speak with 

[trial counsel] at all in regards to this appeal?

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

what it was.

Q. Do you recall what – I know you mentioned 

restitution, appeal about restitution. Do you recall 

any specific conversation you had with [trial 
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attorney] in regards to an appeal to the Superior 

Court, to a higher court about your sentence?

A. I can’t recall exactly, but I can recall talking about 

it, that I have 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. 

Id. at 7-9. 

When asked by the PCRA court what his expectation of counsel was 

following sentencing, Appellant explained he wanted trial counsel to file “any 

form of relief” on his behalf. Id. at 21. He further reiterated he wanted 

counsel to file, “[a]ny kind of motion for relief in sentencing, any basis of the 

whole case. Anything.” Id. at 22. 

Trial counsel testified as follows, with respect to Appellant’s request to 

file a direct appeal.

I explained to [Appellant] all along that, you 

know, by taking -- if we took a guilty plea, his 

appellate rights would be, you know, incredibly 

diminished. . . .

* * *

So we talked about the fact that if he did 

appeal -- or if he did plead guilty, there would be 

almost no basis whatsoever. Unless something went 

wrong in the courtroom here, 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 
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talked about, you know, appeal? Nah. I think that 

was his exact word, nah, n-a-h. There was no basis 

for an appeal, in my opinion, and he didn’t see one. 

Id. at 29. 

Trial counsel further testified, in response to the PCRA court’s inquiry, 

as follows. 

Q. Did [Appellant] 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 38. 

On May 1, 2015, the PCRA court filed an order and accompanying 

opinion denying Appellant’s petition. The court found Appellant understood 

at sentencing that he was entering a plea to first-degree murder, that he 

agreed to the Commonwealth’s factual basis for the charge, and that it was 

Appellant’s decision to plead guilty. PCRA Ct. Op., 5/1/14, at 6. Concerning 

trial counsel’s failure to file an appeal, the PCRA court noted that Appellant 

and trial counsel offered conflicting testimony regarding whether or not 

Appellant requested trial counsel to file an appeal. Id. at 3. The court 

reasoned, however, Appellant’s argument based on trial counsel’s failure to 

file a requested appeal was meritless because Appellant conceded his 
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sentence was not subject to any meritorious challenge, and Appellant could 

not articulate any other specific relief to seek on appeal. Id. at 4. 

On May 13, 2015, Appellant filed the instant, timely appeal. The PCRA 

court did not order compliance with Pennsylvania Rule of Appellate 

Procedure 1925(b). However, the PCRA court filed a statement pursuant to 

Rule 1925(a) referring this Court to its May 1, 2015 order and opinion for 

the reasons underlying its denial of Appellant’s petition. PCRA Ct. Order, 

8/27/15. On October 20, 2015, Appellant’s PCRA counsel filed a 

Turner/Finley letter and application to withdraw as counsel. Appellant filed 

a pro se response on November 20, 2015. 

Counsel identifies the following issues for our consideration.

I. Whether the [PCRA] court erred in determining 

that Appellant’s plea was not involuntary and 

induced due to a breached plea agreement and 

ineffective assistance of counsel[?]

II. Whether trial counsel was ineffective for failing to 

file an appeal on behalf of Appellant[?]

Turner/Finley Brief at 4.7 Additionally, Appellant argues, pro se, that trial 

counsel coerced Appellant into accepting a plea. Appellant’s Pro Se Resp. at 

2-3 (unpaginated).

On appeal from the grant or denial of PCRA relief, this Court examines 

whether the PCRA court’s findings are supported by the record and free from

 

7 We have reordered counsel’s identified issues to reflect the order in which 

the arguments are presented in the Turner/Finley brief.
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legal error. Commonwealth v. Walker, 110 A.3d 1000, 1003 (Pa. Super.), 

appeal denied, 125 A.3d 777 (Pa. 2015). 

[A] PCRA petitioner will be granted relief only when 

he proves, by a preponderance of the evidence, that 

his conviction or sentence resulted from the 

[i]neffective 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. Generally, counsel’s performance is presumed 

to be constitutionally adequate, and counsel will only 

be deemed ineffective upon a sufficient showing by 

the petitioner. To obtain relief, a petitioner must 

demonstrate that counsel’s performance was 

deficient and that the deficiency prejudiced the

petitioner. A petitioner establishes prejudice when 

he demonstrates that there is a reasonable 

probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been 

different. . . . [A] properly pled claim of 

ineffectiveness posits that: (1) the underlying legal 

issue has arguable merit; (2) counsel’s actions 

lacked an objective reasonable basis; and (3) actual 

prejudice befell the petitioner from counsel’s act or 

omission.

Id. (citation and internal quotation marks omitted). 

We review counsel’s petition to withdraw for compliance with the 

following procedure.

The Turner/Finley decisions provide the manner for 

postconviction counsel to withdraw from 

representation. The holdings of those cases 

mandate an independent review of the record by 

competent counsel before a PCRA court or appellate 

court can authorize an attorney’s withdrawal. The 

necessary independent review requires counsel to 

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 
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issues are meritless. The PCRA court, or an 

appellate court if the no-merit letter is filed before it, 

then must conduct its own independent evaluation of 

the record and agree with counsel that the petition is 

without merit. . . . 

[T]his Court [has] imposed additional requirements 

on counsel that closely track the procedure for 

withdrawing on direct appeal. . . . [C]ounsel is 

required to contemporaneously serve upon his [or 

her] client his [or her] no-merit letter and application 

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. . . . 

Commonwealth v. Reed, 107 A.3d 137, 140 (Pa. Super. 2014) (citations 

omitted).

Instantly, counsel has complied with all the procedural requirements of 

Turner/Finley. We therefore proceed to an independent evaluation in order 

to determine if Appellant’s issues are without merit. See Reed, 107 A.3d at 

140. 

The first issue counsel identifies concerns Appellant’s plea agreement. 

Specifically, Appellant asserts that his plea was not knowing or voluntary 

because the Commonwealth “breached” his plea agreement, and trial 

“counsel was ineffective for failing to follow through and investigate a plea 

offer by the Commonwealth whereby he was offered a plea agreement for 

second degree murder.” Turner/Finley Brief at 13-14. We hold Appellant 

is not entitled to relief on this claim. 
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We observe, “[a] criminal defendant has the right to effective counsel 

during a plea process as well as during trial.” Commonwealth v. Rathfon, 

899 A.2d 365, 369 (Pa. Super. 2006) (citation omitted). Further, if 

counsel’s ineffectiveness caused a defendant to plead guilty involuntarily, 

the defendant is permitted to withdraw his guilty plea under the PCRA. Id. 

In the instant case, Appellant conceded he entered his plea knowingly 

and did not dispute the voluntariness of his plea. N.T. PCRA Hr’g, at 15, 18. 

Moreover, assuming, arguendo, he saw an email8from the Commonwealth 

offering second-degree murder, Appellant testified he was aware of this offer 

in April, three months before he knowingly and voluntarily pleaded guilty to 

first-degree murder. See id. at 10. Appellant reiterated at the PCRA 

hearing he understood to what he was pleading guilty, and we discern no 

basis on which to grant Appellant relief.

Based on the foregoing, we conclude the PCRA court’s findings are 

supported by the record, and Appellant has failed to carry his burden to 

demonstrate his plea was involuntarily induced. See Walker, 110 A.3d at 

1003; Rathfon, 899 A.2d at 369. Therefore, we agree with counsel that 

this issue is without merit. See Turner/Finley Brief at 19-20; Reed, 107 

A.3d at 140.

 

8 Trial counsel testified, contrary to Appellant’s claim, the Commonwealth 

never offered Appellant a plea to second-degree murder. N.T. PCRA Hr’g, at 

28.
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We next address the issue raised in Appellant’s pro se response to 

counsel’s Turner/Finley letter. Appellant argues, “[t]here simply was no 

benefit in this plea that counsel advised [Appellant to] take.” Appellant’s Pro 

Se Resp. at 3. He contends trial counsel coerced him into waiving his 

constitutional rights for “counsel’s own interests.” Id. at 2. We disagree.

As discussed above, Appellant’s plea to first-degree murder was 

knowing and voluntary. Further, the record belies Appellant’s contentions 

that counsel acted in his own interest and that the plea was of no benefit to 

Appellant. Counsel testified he believed there was a strong chance Appellant 

would receive the death penalty if convicted, in light of the Commonwealth’s 

evidence and the gravity of the crime. N.T. PCRA Hr’g, at 32-33. Therefore, 

he determined it was in Appellant’s best interest to negotiate a plea with the 

Commonwealth where the death penalty would not be sought. Id. at 29; 

see also id. at 25 (“My strategy from the inception was, number one, get 

the death penalty off the table.”). Accordingly, Appellant has failed to 

demonstrate counsel’s actions lacked an objectively reasonable basis, and 

his claim fails. See Walker, 110 A.3d at 1003.

The second issue counsel identifies is “trial counsel was ineffective for 

failing to file an appeal on [Appellant’s] behalf.” Turner/Finley Brief at 20. 

PCRA counsel reasons that Appellant is not entitled to relief on his claim 

because “[n]o appealable issues of merit exist and Appellant was unable to 

state any issue that should be addressed on appeal[.]” Id. at 21. She 
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relies, in part, on Appellant’s admission that “he had no specific relief in 

mind” to support her position that Appellant’s issue is meritless. Id. 

In Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999), our 

Supreme Court discussed the impact the failure to file a direct appeal has in 

the context of seeking PCRA relief. The Court observed, “[s]ince the failure 

to perfect a requested appeal is the functional equivalent of having no 

representation at all, Strickland,

[9] on its own terms, establishes the right to 

relief.” Lantzy, 736 A.2d at 571 (citation omitted). 

Thus, we hold that, where there is an unjustified 

failure to file a requested direct appeal, the conduct 

of counsel falls beneath the range of competence 

demanded of attorneys in criminal cases, denies the 

accused of the assistance of counsel guaranteed by 

the Sixth Amendment to the United States 

Constitution and Article I, Section 9 of the 

Pennsylvania Constitution, as well as the right to 

direct appeal under Article V, Section 9, and 

constitutes prejudice for purposes of Section 

9543(a)(2)(ii).

Id. at 572 (footnote omitted). 

In Commonwealth v. Haun, 32 A.3d 697 (Pa. 2011), a PCRA 

petitioner alleged in his petition and testified at his PCRA hearing that his 

counsel failed to file a direct appeal despite petitioner’s explicit request to do 

so. Haun, 32 A.3d at 701. Trial counsel testified that he had explained to 

petitioner that he did not believe the trial court abused its discretion in the 

handling of petitioner’s case and that petitioner never requested counsel to 

 

9 Strickland v. Washington, 466 U.S. 668 (1984).
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file an appeal. Id. The PCRA court denied relief to petitioner without 

making a credibility determination regarding the disputed request for an 

appeal. Id. The court reasoned petitioner was not eligible for relief because 

he admitted guilt to the crimes for which he sought post conviction relief. 

Id. The Superior Court reversed the PCRA court, and our Supreme Court 

affirmed holding, “a concession of guilt does not, per se, foreclose prisoner 

access to the PCRA.” Haun, 32 A.3d at 705. Importantly, the Supreme 

Court rejected the Commonwealth’s claim that the PCRA hearing established

petitioner did not request a direct appeal. Id. The Court noted, “the parties 

presented conflicting evidence on the subject and the PCRA court made no 

factual finding. In the circumstances, the Commonwealth cannot rely on a 

credibility judgment which does not exist[.]” Id. 

Instantly, Appellant and trial counsel offered conflicting testimony 

regarding the request to file a direct appeal. Compare N.T. PCRA Hr’g, at 8, 

with id. at 38. PCRA counsel’s explanation as to why Appellant’s direct 

appeal argument is meritless is not relevant in light of our Supreme Court’s 

analyses in Lantzy and Haun. See Turner/Finley Brief at 21. Further, the 

PCRA court acknowledged that trial counsel and Appellant offered conflicting 

testimony but made no factual finding as to whether the request in fact was 

made. PCRA Ct. Op., 5/1/14, at 3-4; see Haun, 32 A.3d at 705. Instead, it 

dismissed Appellant’s petition because Appellant conceded the trial court had 

no discretion in imposing its sentence and Appellant could not articulate any 
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meritorious issues to raise on appeal. Id. Our Supreme Court’s decisions in 

Lantzy and Haun compel us to conclude the PCRA court committed an error 

of law when it dismissed Appellant’s petition without making a credibility 

determination on whether or not there was an unjustified failure by trial 

counsel to file a requested direct appeal. See Walker, 110 A.3d at 1003;

Haun, 32 A.3d at 705; Lantzy, 736 A.2d at 572. Accordingly, we disagree 

with counsel’s assessment of this issue and deny her petition to withdraw. 

See Reed, 107 A.3d at 140. We remand to the PCRA court for further 

proceedings, including making the credibility determination necessary to 

resolve Appellant’s claim of ineffectiveness. 

Order vacated. Petition to withdraw denied. Case remanded for 

further proceedings. Panel jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/11/2016