J-S61033-14

* Retired Senior Judge assigned to the Superior Court. 

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, 

 Appellee 

v.

JEROME REGIS KIRSCH, JR., 

 Appellant 

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IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 No. 688 WDA 2014 

Appeal from the Order April 24, 2014,

in the Court of Common Pleas of Allegheny County, 

Criminal Division at No(s): CP-02-CR-0003050-2011 

BEFORE: FORD ELLIOTT, P.J.E., WECHT and STRASSBURGER,* JJ. 

MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 07, 2014 

 Jerome Regis Kirsch, Jr. (Appellant), appeals from the order entered 

on April 24, 2014, dismissing his petition filed pursuant to the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm. 

 The background underlying this matter was summarized by a prior 

panel of this Court. 

This matter arises out of [Appellant’s] arrest on December 

16, 2010[,] at which time [Appellant] was charged at 

[docket number] CC 201103050 [(hereinafter “3050”)] 

with two counts of Involuntary Deviate Sexual 

Intercourse[,] three counts of Criminal Solicitation[,] two 

counts of Aggravated Indecent Assault[,] two counts of 

Endangering the Welfare of Children, two counts of 

Indecent Exposure, two counts of Corruption of Minors, 

and one count of Indecent Assault. [Appellant] was also 

charged at [docket number] CC[]201201972 [(hereinafter 

“1972”)] with one count of theft. ...

On August 7, 2012, [Appellant] entered into a negotiated 

plea agreement at [docket number 3050. Pursuant to the 
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agreement, Appellant agreed to plead guilty to the 

following counts:] Count 7 (Endangering the Welfare of a 

Child), Count 9 (Indecent Exposure), Count 11 (Corruption 

of Minors)[,] and Count 13 (Indecent Assault)[. In 

exchange, the Commonwealth agreed to withdraw the 

remaining charges at the docket number and recommend 

that Appellant serve a term of ten years’ probation. At 

docket number 1972, Appellant] also entered into a plea 

agreement pursuant to which [Appellant] would plea[d 

guilty to theft and receive a sentence of probation.]

Commonwealth v. Kirsch, 93 A.3d 501 (Pa. Super. 2013) (unpublished 

memorandum at 1-2) (citation omitted). 

 The trial court sentenced Appellant at docket number 3050 to an 

aggregate term of 10 years of probation and at docket number 1972 to a 2 

year term of probation. Appellant did not file a direct appeal. 

 Appellant timely filed a PCRA petition. The PCRA court appointed 

counsel to represent Appellant, and counsel filed an amended PCRA petition. 

Appellant’s primary contention was that trial counsel rendered ineffective 

assistance by coercing and threatening Appellant into taking the plea 

agreement. According to Appellant, counsel’s ineffectiveness renders his 

plea unknowing, involuntary, and unintelligent. 

 The PCRA court scheduled a hearing for March 18, 2013. When 

Appellant failed to appear at the hearing, the Commonwealth moved to 

dismiss the PCRA petition for failure to prosecute. The PCRA court granted 

the Commonwealth’s motion. 

On April 15, 2013, [Appellant] filed a [m]otion for

[r]econsideration of the March 18, 2013 order[.] In his 

[p]etition, [Appellant averred] the following: 
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. . . 

[] 11. [On August 24, 2012, Appellant was arrested for 

an alleged violation of his probation.] On March 7,

2013, [Appellant] was released from the Allegheny 

County Jail. 

12. By order dated March 7[, 2013 and entered March 

11, 2013, the PCRA court scheduled a hearing on 

Appellant’s PCRA p]etition. 

13. On March 12, 2013 [Appellant’s counsel] ... first 

became aware of the March 18, 2013 PCRA hearing 

and, on March 13, 2013 [Appellant’s counsel] received 

a copy of the [PCRA court’s scheduling order].

14. [Appellant’s counsel] was not able to reach 

[Appellant] prior to the March 18, 2013 evidentiary 

hearing. 

15. On March 18, 2013, [Appellant’s PCRA counsel, 

Appellant’s trial counsel, and an attorney] for the 

Commonwealth appeared for the hearing scheduled for 

that date[. Appellant] failed to appear[. Appellant’s 

PCRA counsel was informed by the PCRA court’s staff 

that Appellant] received notice of the March 18, 2013 

hearing as a condition of [Appellant’s] release from 

jail[. The Commonwealth] orally moved to dismiss 

[Appellant’s PCRA petition] due to [Appellant’s] failure 

to prosecute[. The PCRA court granted the 

Commonwealth’s motion on March 18, 2013 and 

dismissed Appellant’s PCRA petition].

16. The following week, a warrant was issued for 

[Appellant’s] arrest for a suspected violation of 

[Appellant’s] probation and [Appellant] was arrested 

and lodged in the Allegheny County Jail. 

17. On or about April 5, 2013, [Appellant] notified [his 

counsel] that he [did not] receive notice of the March 

18, 2013 hearing.[] 
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On April 15, 2013, the PCRA court denied Appellant’s 

motion for reconsideration and, that day, Appellant filed a timely 

notice of appeal to this Court. ...

Commonwealth v. Kirsch, 93 A.3d 501 (Pa. Super. 2013) (unpublished 

memorandum at 4-5) (citation omitted). 

On appeal, Appellant raised a number of issues, including whether the 

PCRA court erred by dismissing his PCRA petition for failure to prosecute 

without holding a hearing. This Court concluded that the PCRA court did err 

in this regard. Consequently, the Court vacated the order dismissing 

Appellant’s petition and remanded the matter to the PCRA court with 

instructions. More specifically, this Court directed the PCRA court to hold a 

hearing to determine whether Appellant’s failure to appear at the March 18, 

2013, hearing was voluntary or the result of a lack of notice to Appellant. 

The Court further stated that, if the PCRA court determined that Appellant’s 

failure to appear was the result of lack of notice, the court must then hold a 

hearing on Appellant’s PCRA petition.

The PCRA court held a hearing on April 10, 2014. At the beginning 

and end of the hearing, the court stated that it would assume that Appellant 

did not receive notice of the March 18, 2013, hearing and that it would 

decide the petition on its merits. Appellant and plea counsel were the only 

witnesses to testify at the hearing. 

On April 24, 2014, the PCRA court entered an order dismissing 

Appellant’s petition. Appellant timely filed a notice of appeal and 
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simultaneously filed a Pa.R.A.P. 1925(b) statement wherein he raised the 

same issue we noted above, i.e., trial counsel was ineffective by coercing 

Appellant’s guilty plea. The PCRA court responded to Appellant’s Pa.R.A.P. 

1925(b) statement by authoring an opinion. The court concluded, inter alia, 

that Appellant’s claim is contradicted by the record made at the time of the 

plea. 

In his brief to this Court, Appellant asks us to consider the question 

that follows. 

[]Whether [Appellant’s] plea was unknowing, involuntary, 

unintelligent, and entered as a result of ineffective assistance of 

counsel as [plea counsel] threatened/coerced [Appellant] into 

pleading guilty by representing that [Appellant] would be 

convicted if he went to trial and would receive a sentence of 20 

to 40 years [of] incarceration? 

Appellant’s Brief at 3 (unnecessary capitalization and PCRA court’s answer 

omitted). 

 Appellant summarizes his argument in support of his issue as follows. 

[Appellant’s] guilty plea is invalid and entered as the result 

of plea counsel’s ineffectiveness in coercing [Appellant] into 

accepting the plea agreement with threats that [Appellant] 

would get convicted if he went to trial and that he would receive 

a sentence of 20 to 40 years in prison. Plea counsel had no 

reasonable basis for making such threats. [Appellant] suffered 

prejudice because, but for said coercion/threats, he would not 

have plead guilty but, instead, would have proceeded to trial. ...

Id. at 10. 

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 great deference to the findings of the PCRA court, and we 
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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. 

A criminal defendant has the right to effective counsel 

during a plea process as well as during trial. A defendant is 

permitted to withdraw his guilty plea under the PCRA if 

ineffective assistance of counsel caused the defendant to enter 

an involuntary plea of guilty. 

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.A. § 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 [an a]ppellant 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. [An a]ppellant 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. 

Moreover, trial counsel is presumed to be effective. 

Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa. Super. 2006) 

(citations and quotation marks omitted). 

 During his plea colloquy, Appellant was asked whether any threats or 

promises, other than the potential plea agreement, may have influenced his 

decision to plead guilty. N.T., 8/7/2012, at 7. Appellant responded, “No.” 
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Id. In addition, Appellant stated that he was satisfied with his counsel’s 

advice and representation.1

 Id. at 12-13. “Appellant is bound by these 

statements, and he may not now assert grounds for withdrawing the plea 

which contradict the statements.” Commonwealth v. Timchak, 69 A.3d 

765, 774 (Pa. Super. 2013). 

 For these reasons, we conclude that the PCRA court properly dismissed 

Appellant’s PCRA petition. We, therefore, affirm that court’s order.

 Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 10/7/2014 

 

1

 In his written explanation of his guilty plea, Appellant stated that no one 

forced him to enter his plea, that he was entering his plea on his free will, 

and that no one had threatened him to enter the plea. Guilty Plea 

Explanation of Defendant’s Rights, 8/7/2012, at ¶¶ 53-55. Appellant further 

stated that he was satisfied with his counsel’s legal advice and 

representation. Id. at ¶61.