J-S05038-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RYAN RICHARD,

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1365 MDA 2019

Appeal from the PCRA Order Entered July 15, 2019

in the Court of Common Pleas of Centre County 

Criminal Division at No(s): CP-14-CR-0000708-2013

COMMONWEALTH OF PENNSYLVANIA

v.

RYAN RICHARD,

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1366 MDA 2019

Appeal from the PCRA Order Entered July 15, 2019

in the Court of Common Pleas of Centre County 

Criminal Division at No(s): CP-14-CR-0000711-2013

BEFORE: SHOGAN, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 29, 2020

Ryan Richard (“Richard”) appeals from the Order denying his first 

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”). 

See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

Richard was convicted in 1989 of third-degree murder after he killed his 

wife at their home in Berks County. At some point while serving his sentence, 

Richard mailed two letters to his mother. The first letter, which was undated 
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and addressed to his mother (the “First Letter”), contained threats directed at 

some of the individuals involved in the criminal proceedings for his 1989 

murder conviction. The First Letter also contained a plan to break into a 

random home, kill the individuals inside, and kill any police officers who might 

attempt to apprehend him upon his release. The second letter, which was 

undated and addressed to himself (the “Hit List Letter”), contained death 

threats directed at multiple individuals involved in the 1989 murder conviction, 

as well as Richard’s specific plans for how he would kill several of the 

individuals upon his release.

At some point following the death of Richard’s mother on January 20, 

2010, the letters were discovered by Richard’s brother, Russell Richard 

(“Russell”). Russell provided the letters to the Pennsylvania State Police, who 

alerted the individuals named in the letters. In 2012, upon his release from 

prison, Richard was arrested and charged with multiple counts of terroristic 

threats and harassment1related to the letters, filed at docket number CP-14-

CR-0016-2013 (the “Letters Charges”). While awaiting trial on the Letters 

Charges, Richard filed a Motion to Quash, arguing that the letters were written 

outside of the five-year statute of limitations. On April 2, 2013, the trial court 

held a hearing on the Motion, at which Russell testified.

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1 18 Pa.C.S.A. §§ 2706(a)(1), 2709(a)(1).
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Two days later, Richard called his estranged daughter from the prison,

and made threatening remarks toward her and Russell regarding Russell’s 

testimony. Following the call, Richard was charged with two additional counts 

of terroristic threats, filed at docket number CP-13-CR-0711-2013, and one 

count of witness intimidation,2filed at docket number CP-14-CR-0708-2013 

(collectively, the “Telephone Charges”).

The Letters Charges and the Telephone Charges were consolidated for 

trial over Richard’s objection. On June 13, 2013, following a hearing, the trial 

court denied Richard’s Motion to Quash the Letters Charges. The trial court 

determined that, though it was unclear when exactly Richard wrote the letters,

or when the letters were sent, sufficient evidence existed suggesting that the 

letters had been sent within the statute of limitations, i.e., within five years

prior to December 13, 2012.

Before trial, but after the hearing on Richard’s Motion to Quash the 

Letters Charges, a second copy of the First Letter was located. This copy of 

the First Letter contained the date “July 5, 2007” handwritten at the top. 

Russell informed authorities that he believed that the date was written by his 

mother, which she would often do when receiving a letter from Richard.

After receiving the dated copy of the First Letter, Richard filed a 

supplemental Motion to dismiss the Letters Charges, again on the basis of the

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2 18 Pa.C.S.A. § 4952(a)(3).
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statute of limitations. The trial court held an evidentiary hearing on October 

28, 2013, during which Russell, Trooper Swank, and several other State 

Troopers testified. On November 20, 2013, the trial court issued an Opinion 

and Order denying Richard’s supplemental Motion.3 

The trial for the charges at all three docket numbers took place in 

November 2014, wherein the Commonwealth’s case focused largely on the 

contents of the letters. At the close of the Commonwealth’s case, Richard

filed a Motion for acquittal on the Letters Charges on statute of limitations 

grounds. The trial court granted Richard’s Motion for acquittal on the charges 

related to the First Letter, and denied his Motion as to the charges related to 

the Hit List Letter.4 The jury ultimately acquitted Richard of the charges 

related to the Hit List Letter, and convicted him on the charges related to the 

telephone threats. On August 6, 2015, the trial court sentenced Richard to 

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3 Prior to trial, Richard filed a Motion in limine, to preclude the Commonwealth 

from arguing its theory that the statute of limitations was not triggered until 

the threats were communicated to the intended targets, rather than when the 

threats were written. The trial court granted Richard’s Motion. The 

Commonwealth filed an interlocutory appeal, and this Court affirmed the trial 

court, holding that the statute of limitations was triggered when the letters 

were sent. See Commonwealth v. Richard, 105 A.3d 801 (Pa. Super. 2014) 

(unpublished memorandum).

4 The Commonwealth conceded at trial that the evidence showed the First 

Letter was, in fact, sent in July 2007. N.T. (Trial), 11/14/14, at 279-83.
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serve an aggregate term of 7 to 17 years in prison, with credit for 849 days 

of time served.

This Court affirmed Richard’s judgment of sentence.

5

 Richard did not 

seek allowance of appeal in the Supreme Court. Richard filed the instant, 

timely, pro se Petition for relief pursuant to the PCRA on January 6, 2017.

The PCRA court appointed Richard counsel, who filed an Amended Petition on 

November 21, 2017. A hearing was conducted over two days in November 

2018. On July 15, 2019, the PCRA court entered an Order denying the 

Petition. Richard filed a Motion for reconsideration, which the PCRA court 

denied without a hearing. On August 13, 2019, Richard filed two separate, 

but otherwise identical, Notices of Appeal, with each Notice listing docket 

numbers CP-14-CR-0708-2013 and CP-13-CR-0711-2013. On September 9, 

2019, this Court directed Richard to show cause why we should not quash his 

appeal based on his apparent failure to comply with our Supreme Court’s 

ruling in Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018) (stating 

that “when a single order resolves issues arising on more than one lower court 

docket, separate notices of appeal must be filed. The failure to do so will 

result in quashal of the appeal.” (citing Pa.R.A.P. 341)). See also 

Commonwealth v. Creese, 216 A.3d 1142, 1144 (Pa. Super. 2019) 

(quashing an appeal pursuant to Walker where the appellant filed a separate 

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5 See Commonwealth v. Richard, 150 A.3d 504 (Pa. Super. 2016).
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notice of appeal at each docket number, but where each notice of appeal listed 

multiple docket numbers). Richard filed a Response, and on September 26, 

2019, this Court discharged the show cause Order and referred the issue to 

the merits panel.

Richard raises the following questions for our review:

I. Did the trial court commit an abuse of discretion and/or error of 

law in finding that the [Commonwealth] did not engage in 

prosecutorial misconduct so as to bar a retrial or entitle [Richard] 

to a new trial?

II. Did the trial court commit an error of law and/or abuse of 

discretion in not finding [Richard’s] trial counsel ineffective for the 

following reasons:

a. Allowing a written confession (the “hit list[”]) to go 

out with the jury in violation of applicable rules of 

criminal procedure[;]

b. Failing to attack the prosecution of [Richard] 

(related to the letters authored by [Richard]) on 

jurisdictional grounds[;]

c. Failing to request a jury instruction on terroristic 

threats relating to spur of the moment statements and 

transitory anger[;]

d. Failing to raise on direct appeal the trial court’s 

ruling on a Commonwealth Motion in limine which 

prohibited [Richard] from introducing the balance of 

[Richard’s] statement made to a State Trooper[; and]

e. Failure to object to prosecutorial comments 

regarding [Richard?]

Brief for Appellant at 4-5.

Prior to addressing the merits of Richard’s argument, we must first 

determine whether his counseled appeal complies with our appellate rules of 
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procedure. While Richard’s appeal was pending before this Court, we issued 

our decisions in Commonwealth v. Johnson, 2020 PA Super 164, at *12 

(Pa. Super. filed July 9, 2020) (en banc) and Commonwealth v. Larkin, 

2020 PA Super 163, at *3 (Pa. Super. filed July 9, 2020) (en banc), in which 

this Court held that where separate notices of appeal are filed at each docket 

number, the inclusion of multiple docket numbers on each notice of appeal 

does not invalidate the notices of appeal, thereby overruling Creese, and 

declined to quash the appeals. In this case, Richard filed two separate Notices 

of Appeal, one at each docket, and each identifying docket numbers CP-14-

CR-0708-2013 and CP-13-CR-0711-2013. Pursuant to Johnson and Larkin, 

we conclude that Richard has complied with the dictates of Walker and 

Pa.R.A.P. 341.

However, we must also determine whether we have jurisdiction to 

consider all of Richard’s claims. See Commonwealth v. Gentry, 101 A.3d 

813, 816 (Pa. Super. 2014) (“[the Superior Court] may raise issues 

concerning jurisdiction sua sponte”). Here, Richard’s two Notices of Appeal 

list the two docket numbers (CP-14-CR-0708-2013 and CP-13-CR-0711-2013) 

related to the Telephone Charges. He did not file a Notice of Appeal at docket 

number CP-14-CR-0016-2013 – which involved the Letters Charges. 

Accordingly, we do not have jurisdiction to consider Richard’s claim regarding

prosecutorial misconduct, or his ineffective assistance claims related to the Hit 

List Letter going out with the jury, jurisdictional issues related to the letters, 
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and the Commonwealth’s Motion in limine related to Trooper Swank’s 

testimony regarding the letters. Commonwealth v. Hardy, 99 A.3d 577, 

578-79 (Pa. Super. 2014) (concluding that our appellate jurisdiction was 

limited to reviewing the judgment of sentence at the docket number listed by 

the defendant on his notice of appeal, and that we lacked jurisdiction to review 

any claim related to the judgment of sentence at any other docket number).

In his first claim within our jurisdiction, Richard argues that trial counsel 

was ineffective in failing to request a Kidd instruction6for the terroristic 

threats charge. Brief for Appellant at 39. Richard points to trial counsel’s 

recognition that he was aware of the existence of a Kidd instruction, and his 

lack of explanation as to why he did not request one. Id. at 39-40. Though 

Richard recognizes that the telephone threats at issue were made several days 

after the hearing, he asserts that a Kidd instruction was nevertheless 

warranted because he was in prison at the time the telephone calls were 

made. Id. at 40-41. Accordingly, he could not make an immediate phone 

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6 Commonwealth v. Kidd, 442 A.2d 826 (Pa. Super. 1982). In Kidd, the 

defendant was arrested for public drunkenness and, while being transported 

to the hospital for treatment, continuously yelled obscenities at police officers, 

including a threat to “kill them, machine gun them, if given a chance.” Kidd, 

442 A.2d at 827. This Court concluded that the defendant did not demonstrate 

an intent to terrorize the arresting officers, as he was merely expressing 

transitory anger, which the terroristic threats statute was not intended to 

criminalize. Id. Cf. Commonwealth v. Tizer, 684 A.2d 597, 600-01 (Pa. 

Super. 1996) (concluding that a defendant’s threats were not made in a spurof-the-moment transitory anger when the victim did not threaten or provoke 

the defendant, the defendant initiated the interaction, and the threats were 

not made during the course of a heated argument). 
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call to express his displeasure, and was required to wait several days before 

having the opportunity to do so. Id. According to Richard, “the jurors should 

have been allowed to conclude whether the statements were spur of the 

moment and/or made from transitory anger[,]” and, as a result, a Kidd

instruction was necessary. Id. at 41.

Our standard of review related to claims of ineffective assistance of 

counsel is well settled:

To be entitled to relief on an ineffectiveness claim, [an appellant] 

must prove the underlying claim is of arguable merit, counsel’s 

performance lacked a reasonable basis, and counsel’s 

ineffectiveness caused him prejudice. Prejudice in the context of 

ineffective assistance of counsel means demonstrating there is a 

reasonable probability that, but for counsel’s error, the outcome 

of the proceeding would have been different. This standard is the 

same in the PCRA context as when ineffectiveness claims are 

raised on direct review. Failure to establish any prong of the test 

will defeat an ineffectiveness claim.

Commonwealth v. Keaton, 45 A.3d 1050, 1060-61 (Pa. 2012) (footnote 

omitted). Further, we generally presume that counsel is effective. 

Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009).

In reviewing a trial court’s jury instructions,

[a] jury charge will be deemed erroneous only if the charge as a 

whole is inadequate, not clear or has a tendency to mislead or 

confuse, rather than clarify, a material issue. A charge is 

considered adequate unless the jury was palpably misled by what 

the trial judge said or there is an omission which is tantamount to 

fundamental error. Consequently, the trial court has wide 

discretion in fashioning jury instructions. The trial court is not 

required to give every charge that is requested by the parties and 

its refusal to give a requested charge does not require reversal 

unless the [defendant] was prejudiced by that refusal.
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Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013) (citation 

omitted).

The PCRA court addressed this claim as follows:

Unlike the cases that turn on the spur-of-the-moment rule, in this 

case, the context surrounding the threats at issue were not shown 

to involve a chance encounter or a heated exchange. To the 

contrary, the underlying allegations were that [Richard] had 

connived to make an unrecorded telephone call from the jail to his 

estranged daughter, that the unrecorded nature of the call 

violated correctional facility policy, and that the call took place two 

days after the alleged inciting event. It was in the context of that 

pre-planned call that [Richard] made the threatening remarks at 

issue. These facts are not at all analogous to the cases applying 

the spur-of-the-moment rule, and the [PCRA c]ourt questions 

whether a specific instruction in this regard would have been given 

even had it been requested.

Furthermore, as noted by the Commonwealth, the jury instruction 

given by the trial court with respect to the terroristic threats 

charge and the witness intimidation charge included instructions 

on intent, instructing the jury that it was the Commonwealth’s 

burden to prove intent. Thus, the subject matter to be covered

by the “Kidd instruction” was covered in the general charge, and 

[Richard] cannot meet his burden of proving actual prejudice as a 

result of trial counsel’s alleged failure.

PCRA Court Opinion, 7/15/19, 18-19.

We discern no abuse of discretion in the PCRA court’s conclusion, which 

is supported by the record. In this case, Richard’s telephone threats to his 

brother and daughter were made several days after the incident which 

provoked him, i.e., the testimony made against Richard. Because Richard’s 

threats were not made in a spur-of-the-moment bout of anger, we cannot 

conclude that Richard’s Kidd claim has arguable merit, and the PCRA court 

did not abuse its discretion in concluding that counsel was not ineffective in 
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not requesting a Kidd instruction. See Commonwealth v. Spotz, 18 A.3d 

244, 299-300 (Pa. 2011) (stating that counsel is not ineffective for failing to 

raise a jury instruction that the defendant was not entitled to).

Next, Richard argues that trial counsel was ineffective in failing to object 

to various prejudicial comments made by the prosecutor during trial. Brief for 

Appellant at 44. Richard asserts that, on a number of occasions during the 

trial, the Commonwealth referred to him as “the monster sitting inside his 

cage,” and a liar. Id. According to Richard, the Commonwealth’s 

“engage[ment] in a course of conduct to dehumanize” him created a fixed 

bias, hostility, and collective fear in the minds of the jury. Id. at 45. Richard 

implores us to conclude that the prejudice he experienced in these instances—

combined with the other instances of prejudice discussed above—creates 

sufficient cumulative prejudice to grant him relief. Id. at 45-46.

[A] claim of ineffective assistance grounded in counsel’s failure to 

object to a prosecutor’s comments may succeed when the 

petitioner demonstrates that the prosecutor’s [comments] 

violated a constitutionally or statutorily protected right, such as 

the Fifth Amendment privilege against compulsory selfincrimination or the Sixth Amendment right to a fair trial, or a 

constitutional interest such as due process. ... A prosecutor may 

make fair comment on the admitted evidence and may provide 

fair rebuttal to defense arguments .... Reversible error occurs only 

when the unavoidable effect of the challenged comments would 

prejudice the jurors and form in their minds a fixed bias and 

hostility toward the defendant such that the jurors could not weigh 

the evidence and render a true verdict.

Spotz, 18 A.3d at 288 (Pa. 2011) (internal citations and quotations omitted).

The PCRA court addressed Richard’s claim as follows:
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In the present case, although the [PCRA c]ourt agrees the 

prosecutor’s comments crossed the line, particularly with respect 

to counsel expressing his opinion that [Richard] is a “liar,” the 

[c]ourt does not believe the improper comments were so 

inflammatory and prejudicial that they would have the 

unavoidable effect of creating a “fixed bias and hostility” in the 

minds of the jurors. Looking to the trial outcome, it is evident 

that the jurors assessed each of the charges separately on their 

own merits, indicating that the verdict as to the Telephone 

Charges was not the result of some undue prejudice or fixed bias 

or hostility. The [c]ourt thus finds [Richard] has failed to 

demonstrate a right to PCRA relief with respect to this claim.

Trial Court Opinion, 7/15/19, at 21.

We discern no error in the PCRA court’s conclusion that Richard failed to 

establish the requisite prejudice to warrant relief on this claim. In reviewing 

the trial transcript, we agree with the PCRA court’s determination that while 

certain comments made by the Commonwealth “crossed the line,” we note 

that “[n]ot every unwise, intemperate, or improper remark made by a 

prosecutor mandates the grant of a new trial.” Spotz, 18 A.3d at 288. In 

this case, Richard does not present evidence that the Commonwealth referring 

to Richard as a “liar” on several occasions created a “fixed bias and hostility” 

against him in the minds of the jurors. Instead, the record discloses that the 

jury ably considered each of the charges against Richard despite the 

Commonwealth’s comments and, in fact, returned a not guilty verdict on the 

charges related to the Hit List Letter. Accordingly, this claim fails.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 09/29/2020