J-S38023-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KYLE LAMAR BLACK 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 594 EDA 2022

Appeal from the PCRA Order Entered January 27, 2022

In the Court of Common Pleas of Bucks County

Criminal Division at CP-09-CR-0001750-2019

BEFORE: KUNSELMAN, J., MURRAY, J., and SULLIVAN, J.

MEMORANDUM BY MURRAY, J.: FILED DECEMBER 29, 2022

Kyle Lamar Black (Appellant) appeals pro se from the order denying his 

timely first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 

Pa.C.S.A. §§ 9541-9546. We affirm.

On May 23, 2018, Appellant and two accomplices robbed a minor female 

victim at gunpoint inside her home. They threatened and tortured the victim, 

and Appellant forced the victim to perform oral sex on him.

1

 The

Commonwealth charged Appellant with numerous crimes, and the case 

proceeded to trial in October 2019. Appellant was represented by retained 

counsel, David Knight, Esquire (Trial Counsel). The jury convicted Appellant 

of most charges, including robbery, burglary, indecent assault, simple assault, 

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1 The PCRA court provided a detailed recitation of the facts in its opinion. See

PCRA Court Opinion, 4/1/22, at 1-3.
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and conspiracy; the jury acquitted Appellant of involuntary deviate sexual 

intercourse and sexual assault.2 On February 6, 2020, the trial court 

sentenced Appellant to an aggregate 11 - 22 years in prison, followed by 10 

years of probation. Appellant did not file post-sentence motions or a direct 

appeal. 

On January 12, 2021, Appellant timely filed the instant pro se PCRA 

petition. The PCRA court appointed counsel (PCRA Counsel), who filed an 

amended PCRA petition on March 19, 2021. PCRA Counsel raised a single

claim that Trial Counsel was ineffective for failing to file a direct appeal. 

Amended PCRA Petition, 3/19/21, at ¶¶ 12-15. 

The PCRA court held an evidentiary hearing on August 9, 2021. 

Appellant, Trial Counsel, Appellant’s father, and Correctional Officer Ara 

Kimbrough (Lieutenant Kimbrough) testified. Pertinently, Appellant and his 

father claimed they repeatedly asked Trial Counsel to file a direct appeal prior

to the expiration of the appeal period, but Trial Counsel ignored them. N.T., 

8/9/21, at 9-14, 40-48. In support, Appellant attached to his amended PCRA 

petition two handwritten letters which he purportedly sent to Trial Counsel 

after sentencing. Amended PCRA Petition, 3/19/21, Exhibit A (letter dated 

February 7, 2020 (February 7 letter)), and Exhibit B (letter dated March 28, 

2020 (March 28 letter)); see also PCRA Hearing Exhibits D-1 and D-2 (same).

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2 The PCRA court explained the verdicts in its opinion. See PCRA Court 

Opinion, 4/1/22, at 3.
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Conversely, Trial Counsel testified that neither Appellant nor his father asked 

him to file an appeal. N.T., 8/9/21, at 24-32; see also id. at 31 (Trial Counsel 

testifying that during a phone call with Appellant’s father after sentencing, 

“my understanding was ... that they did not want to file an appeal.”). On 

cross-examination, Trial Counsel denied seeing the February 7 letter or March 

28 letter prior to the PCRA proceedings. Id. at 34, 38. Trial Counsel 

acknowledged he had discussed the appellate process with Appellant. Id. at 

26-27, 35. Trial Counsel informed Appellant that if he elected to appeal, Trial 

Counsel would file a notice of appeal, but Appellant would need to retain a

different attorney to represent him on appeal, as Trial Counsel did not handle 

appeals. Id. Trial Counsel referred Appellant to his former law partner, John 

Fioravanti, Esquire (Attorney Fioravanti). Id. at 27, 37.

On January 27, 2022, the PCRA court denied Appellant’s PCRA petition.

Appellant timely filed a pro se notice of appeal,

3 as well as a separate petition 

requesting permission to proceed pro se pursuant to Commonwealth v. 

Grazier, 713 A.2d 81 (Pa. 1998). The PCRA court conducted a Grazier

hearing in accordance with this Court’s directive on May 19, 2022, and granted 

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3 Appellant filed his notice of appeal at docket 605 EDA 2022. Four days later, 

PCRA Counsel filed a notice of appeal at the instant docket, 594 EDA 2022.

Appellant thereafter filed in this Court an application to consolidate the 

appeals. On May 6, 2022, we dismissed the appeal at 605 EDA 2022 as 

duplicative and denied Appellant’s application to consolidate as moot.
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Appellant leave to proceed pro se. The PCRA court did not order Appellant to 

file a concise statement of errors pursuant to Pa.R.A.P. 1925(b).

Appellant presents two questions for review:

1. [Wa]s [Trial C]ounsel ineffective per se in failing to appeal 

[Appellant’s] case, thereby abandoning his client and 

completely depriving [Appellant] of the right to appeal?

2. Did the PCRA Court abuse its discretion in failing to find [T]rial 

[C]ounsel ineffective in failing to file an appeal, and/or take the 

necessary steps to protect [Appellant’s] right to appeal?

Appellant’s Brief at iv. We address Appellant’s issues together.

“Our standard of review for issues arising from the denial of PCRA relief

is well-settled. We must determine whether the PCRA court’s ruling is 

supported by the record and free of legal error.” Commonwealth v. Spotz, 

171 A.3d 675, 678 (Pa. 2017). “We will not disturb findings of the PCRA court 

that are supported by the certified record.” Commonwealth v. Bedell, 954 

A.2d 1209, 1211 (Pa. Super. 2008) (citation omitted). 

Regarding ineffectiveness claims, Pennsylvania law presumes that 

counsel was effective, and a PCRA petitioner bears the burden of proving

otherwise. Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018). 

[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 “ineffective assistance of counsel which, in the 

circumstances of the particular case, so undermined the truthdetermining process that no reliable adjudication of guilt or 

innocence could have taken place.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (quoting 42 

Pa.C.S.A. § 9543(a)(2)(ii)).
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To establish a claim of ineffectiveness, a PCRA petitioner must plead and 

prove three prongs:

(1) the underlying claim has arguable merit; (2) no reasonable

basis existed for counsel’s action or failure to act; and (3) he

suffered prejudice as a result of counsel’s error, with prejudice

measured by whether there is a reasonable probability the result

of the proceeding would have been different. Commonwealth v.

Chmiel, 30 A.3d 1111, 1127 (Pa. 2011) (employing ineffective

assistance of counsel test from Commonwealth v. Pierce, 527

A.2d 973, 975-76 (Pa. 1987)). ... Additionally, counsel cannot be

deemed ineffective for failing to raise a meritless claim. Finally,

because a PCRA petitioner must establish all the Pierce prongs to

be entitled to relief, we are not required to analyze the elements

of an ineffectiveness claim in any specific order; thus, if a claim

fails under any required element, we may dismiss the claim on

that basis.

Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015) (citations 

modified); see also Commonwealth v. Lesko, 15 A.3d 345, 380 (Pa. 2011) 

(“When evaluating ineffectiveness claims, judicial scrutiny of counsel’s 

performance must be highly deferential.” (citation omitted)).

Appellant argues the PCRA court abused its discretion in rejecting his

claim that Trial Counsel rendered ineffective assistance by failing to file a 

requested direct appeal. See Appellant’s Brief at 1-9; see also id. at 6 

(“[Appellant] did, in fact, state that he wanted to file an appeal[;] however, 

[Trial C]ounsel felt that he needed to talk to [Appellant’s] father to see if his 

father was willing to pay for that service.”). Appellant contends that at the 

PCRA hearing, Trial Counsel “basically admits that he abandoned” Appellant, 

and cites the following excerpt from PCRA Counsel’s cross-examination of Trial

Counsel:
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Q. [] My understanding from your direct testimony was when you 

left your visit with [Appellant] in jail, he had not directed you to 

file an appeal, but you said you would speak to his family?

A. Yes.

Q. When you left, did you think it was up to [Appellant’s] family 

to decide whether to file the appeal? How did you leave that with 

your client?

A. I thought ... they spoke by phone at least, [Appellant] and [his 

father,] and [Appellant’s] mother, I am sure, also. So I am sure 

it was a family decision as to what they wanted to do. [Attorney] 

Fioravanti’s name and number I gave him. [Appellant and his 

parents] knew [Attorney Fioravanti from prior experience.] And 

that is pretty much the last I heard, except I think at one point in 

time I did receive a phone call, and I might have received a card

or a letter from [Appellant’s] parents.

Q. When you had this phone call with his -- I believe you said it 

was [Appellant’s] father that you spoke with?

A. Yes.

Q. Was that something that you initiated or did he contact you? 

A. I believe he called me.

N.T., 8/9/21, at 35-36; see also Appellant’s Brief at 2-3.

Appellant further asserts that Trial Counsel “never attempted to find 

out” whether Appellant wanted to appeal. Appellant’s Brief at 3; see also id.

at 6 (arguing Trial Counsel “never stated that either [Appellant] or 

[Appellant’s] father specifically told [counsel] not to file an appeal.” (emphasis

in original)). Finally, Appellant contends Trial Counsel improperly “did 

whatever he could to discourage the filing of an appeal, including stating that 

there were no appealable issues and stating that it would cost additional 
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money,” and “tried to pawn this case off on [A]ttorney [] Fioravanti....” Id. at

8-9.

The law is well-settled. The United States Supreme Court has held:

[C]ounsel has a constitutionally imposed duty to consult with the

defendant about an appeal when there is reason to think either

(1) that a rational defendant would want to appeal (for example,

because there are nonfrivolous grounds for appeal), or (2) that

this particular defendant reasonably demonstrated to counsel that

he was interested in appealing. In making this determination,

courts must take into account all the information counsel knew or

should have known.

Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000). Counsel’s unexplained

failure to file a requested direct appeal constitutes ineffective assistance per

se, such that the petitioner is entitled to reinstatement of direct appeal rights

nunc pro tunc without establishing prejudice. Commonwealth v. Lantzy,

736 A.2d 564, 572 (Pa. 1999). However, “[b]efore a court will find 

ineffectiveness of trial counsel for failing to file a direct appeal, [an a]ppellant 

must prove that he requested an appeal and that counsel disregarded this 

request.” Commonwealth v. McGarry, 172 A.3d 60, 71 (Pa. Super. 2017) 

(citation omitted).

Upon review, we find the PCRA court’s analysis persuasive. The PCRA 

court explained: 

In the instant case, there is no dispute that Trial Counsel 

discussed the appellate process with [Appellant] (N.T., 8/9/21, at 

7, 9, 25, 27, 33-35) and that the costs associated with that appeal 

were part of those discussions[.] Id. at 9, 30-32. There is also 

no dispute that Trial Counsel was aware of his obligation to file an 

appeal if requested to do so to preserve [Appellant’s] appellate

rights. Id. at 35. Trial Counsel was privately retained. Id. at 7.
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Both Trial Counsel and [Appellant] testified that Trial Counsel told 

[Appellant] that, if he chose to appeal, Trial Counsel would file the 

notice of appeal, but that [Appellant] would then have to retain 

another private attorney to represent him on appeal.

[FN2] Id. at 

19. Both Trial Counsel and [Appellant] testified that Trial Counsel 

referred [Appellant] to ... [Attorney] Fioravanti ... for that purpose.

Id. at 9-10, 18-19, 27, 35.

[FN2] Trial Counsel also advised [Appellant] that he could 

apply for public defender representation if he could not 

afford to retain private counsel. Id. at 35. 

The sole dispute is whether [Appellant] instructed 

Trial Counsel to file an appeal. [Appellant] testified that he 

instructed Trial Counsel to file an appeal immediately after 

sentencing while they were still in the courtroom (id. at 8-9), in 

[the February 7] letter [] he sent from Bucks County Correctional 

Facility ... (id. at 11-12; PCRA Exhibit D-1), and again [in person]

during a prison visit with Trial Counsel on February 11, 2020. 

N.T., 8/9/21, at 9-10. [Appellant] testified that he wrote a second 

letter[, i.e., the] March 28 [letter,] while housed at a state 

correctional facility[,] in which he inquired about the status of his 

appeal. N.T., 8/9/21, at 13-14; PCRA Exhibit D-2. Trial Counsel 

testified that [Appellant] did not ask him to file an appeal while 

they were in the courtroom on February 6 (N.T., 8/9/21, at 34), 

that he did not receive the February 7 letter or the March 28 letter 

from [Appellant] (id. at 28, 34, 38), and that [Appellant] never 

mentioned the February 7 letter or asked him to file an appeal 

during the February 11[, 2020,] prison visit[.] Id. at 28, 34, 38.

This court found Trial Counsel’s testimony to be 

credible. Trial Counsel is an experienced trial attorney who 

specializes in criminal law. He has been practicing criminal law 

since 1985. Criminal matters constitute 95 percent of his criminal 

practice. Id. at 33. Given the effort Trial Counsel took to make 

sure [Appellant] and his family understood his appellate rights (id.

at 29-31, 52)[FN3] and understood [Appellant’s] options regarding 

legal representation on appeal (id. at 35), it makes little sense 

that Trial Counsel would simply choose not to file a notice of 

appeal if he had been requested to do so. Moreover, Trial 

Counsel’s testimony that he never received any letters regarding 

an appeal from [Appellant] was supported by the fact that the 

original letters were not produced at the PCRA Hearing; 

presumably because they were not in the case file Trial Counsel 
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turned over to PCRA Counsel. See id. at 28, 34. The only 

evidence produced regarding the letters was [Appellant’s] 

testimony and photocopies of what were purported to be carbon 

copies of two handwritten letters. PCRA Exhibits D-1, D-2. There 

was no evidence from any independent source to establish when 

each document was created and if and when they were ever 

mailed.

[FN3] Trial Counsel met with [Appellant’s] father and 

mother following sentencing and spoke with [Appellant’s] 

father by telephone before the appeal period lapsed. Id.

at 29-31, 52.

This court found [Appellant’s] testimony to be of 

questionable reliability for several reasons. First, 

[Appellant’s] account of what occurred following his 

conviction was contradicted by other evidence. [Appellant] 

testified that he wrote the first letter to Trial Counsel while housed 

at Bucks County Correctional Facility on February 7, 2020. Id. at 

11-12; PCRA Exhibit D-1. Lieutenant [] Kimbrough, the 

administrative lieutenant responsible for overseeing records and

reception at Bucks County Correctional Facility, testified that on 

the date the [February 7] letter was allegedly written, 

[Appellant] was on restrictive status at the prison and had 

no access to pen and paper. N.T., 8/6/21, at 62, 66-68; PCRA 

Exhibit C-2. [Appellant] also testified that he did not learn that 

the appeal had not been filed until almost a year after he was 

sentenced. N.T., 8/6/21, at 13. That testimony was contradicted 

by [Appellant’s] father[,] who testified he had informed 

[Appellant] that he had spoken to Trial Counsel prior to the 

expiration of the appeal period and that Trial Counsel had not filed 

an appeal. Id. at 60. [Appellant’s] testimony that his family was 

also communicating with Trial Counsel at the same time he was 

allegedly attempting to communicate with counsel regarding an 

appeal raises the implication that [Appellant’s] parents were 

acting on his behalf regarding the appeal. Id. at 12. However, 

Trial Counsel testified that [Appellant’s] father did not direct him 

to file an appeal (id. at 38) and had instead informed him that he 

was not going to spend more money for an appeal. Id. at 30. 

Although [Appellant’s] father’s testimony was confused and 

inconsistent, to the extent that it can be relied on, it established 

that he was not acting as [Appellant’s] representative regarding 

his communications with Trial Counsel. [Appellant’s father] 

testified that his son was a “young adult” and that he was handling 
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everything regarding the potential appeal. Id. at 41, 53. 

Second, [Appellant’s] testimony was internally 

inconsistent. [Appellant] testified that he was told by Trial 

Counsel that “[counsel] had to investigate the issues of 

[Appellant’s] case” and then he would file the appeal. Id. at 9. 

[Appellant] later testified that Trial Counsel told him that “he was 

going to file the notice of appeal that day.” Id. at 10. 

[Appellant’s] testimony that he believed Trial Counsel was going 

to “investigate the issues” to be raised on appeal was also 

contradicted by [Appellant’s] admission that he knew [] Trial 

Counsel was only going to file the notice of appeal and that a 

separate attorney would be needed to handle all other aspects of 

the appeal. Id. at 22. 

Finally, [Appellant’s] conduct following his conviction 

was inconsistent with his stated intention of pursuing an 

appeal. [Appellant] testified that he told [Trial Counsel] to file an 

appeal and that [Appellant] knew, once that appeal was filed, that 

he would have to retain another attorney or obtain public defender 

representation to handle it. Despite having been given [Attorney] 

Fioravanti’s contact information, [Appellant] did not attempt to 

contact him for almost a year. Id. at 19-20. [Appellant] never 

retained an attorney. Id. at 22. [Appellant] presented no

evidence that he attempted to retain any other attorney or that 

he applied for a public defender.

The content of the February 7 letter is also 

questionable given the time frame it was purportedly 

written. The content of the February [7 letter] indicates that 

[Appellant] was dissatisfied with Trial Counsel’s handling of the 

case. PCRA Exhibit D-1. In his testimony, Trial Counsel made it 

clear that, contrary to the sentiment expressed in that letter, 

[Appellant] did not raise any of the same issues with him and 

expressed no complaints about [Trial Counsel’s] representation 

when [Appellant] met with him four days later. [Trial Counsel] 

testified that when he met with [Appellant] on February 11

[2020], [Appellant] was “very excited” that he was acquitted on 

the most serious sex offenses and thanked [Trial Counsel] 

“numerous times.” N.T., 8/9/21, at 25, 34-35. Given the verdict 

when considered in light of the Commonwealth’s evidence, Trial 

Counsel’s description of [Appellant’s] state of mind makes more

sense than the more antagonistic relationship between attorney 

and client the handwritten document implies.
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Having made credibility findings against [Appellant]

and in favor of Trial Counsel regarding whether [Appellant] 

directed Trial Counsel to file an appeal[,] and having 

concluded that the authenticity of the documents 

presented was questionable, this court found that 

[Appellant] did not meet his burden of proving by a 

preponderance of the evidence that he directed Trial 

Counsel to file an appeal and that Trial Counsel ignored that 

request. 

PCRA Court Opinion, 4/1/22, at 5-9 (emphasis added; footnotes in original; 

some citations modified).

The PCRA court’s reasoning is supported by the record and law. See, 

e.g., Commonwealth v. Martin, 5 A.3d 177, 197 (Pa. 2010) (the factual 

findings of a PCRA court, “which hears evidence and passes on credibility of 

witnesses, should be given great deference”), and Commonwealth v. 

Mitchell, 105 A.3d 1257, 1265 (Pa. 2014) (a “PCRA court’s credibility 

determinations, when supported by the record, are binding on this Court[.]” 

(citation omitted)). Accordingly, we conclude that the PCRA court did not err 

or abuse its discretion in rejecting Appellant’s claim of Trial Counsel’s 

ineffectiveness. See PCRA Court Opinion, 4/1/22, at 5-9.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/29/2022