J-S22030-19

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KEVIN PENO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1669 MDA 2018

Appeal from the PCRA Order Entered September 19, 2018

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

No(s): CP-22-CR-0002996-1996

BEFORE: SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.

MEMORANDUM BY DUBOW, J.: FILED AUGUST 09, 2019

Appellant, Kevin Peno, appeals pro se from the September 19, 2018 

Order, entered in the Dauphin County Court of Common Pleas, dismissing his 

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

§§ 9541-9546. He contends that (1) he was denied the effective assistance 

of counsel when counsel agreed to the GPS monitoring device as a condition

of his probation; and (2) wearing the GPS monitoring device was punitive and, 

therefore, a violation of Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 

2017). After careful review, we affirm.

This Court previously set forth the facts and procedural history of this 

case, and we need not reiterate the details to resolve the issues Appellant 

raises in this appeal. See Commonwealth v. Peno, No. 1219 MDA 2012 (Pa. 

Super. filed Aug 16, 2013) (unpublished memorandum); Commonwealth v. 
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Peno, No. 1795 MDA 2015 (Pa. Super. filed Oct. 13, 2016) (unpublished 

memorandum). Relevant to this appeal, we note the following: Appellant 

served his full 15-year sentence of incarceration for various sexual offenses 

against minor children. Immediately prior to his release from prison, the 

Dauphin County Probation Department lodged a detainer against him alleging 

that because he did not fulfill a condition of parole—that he complete sex 

offender treatment while in prison—he was not a candidate for probation. 

After various proceedings, the court found him in violation of his probation

(“VOP”), revoked his probation, and imposed sentence. On appeal, this Court 

vacated the VOP Judgment of Sentence, holding that the condition of parole 

imposed by the trial court had been illegal and, therefore, could not be used 

as basis to revoke Appellant’s probation. See Commonwealth v. Peno, No. 

1219 MDA 2012, unpublished memorandum at 1, 4) (Pa. Super. filed Aug. 16, 

2013). The Pennsylvania Supreme Court denied allowance of appeal on July 

14, 2014.

On July 18, 2014, “by agreement of the parties to expedite Appellant’s 

release from incarceration, the trial court issued an order modifying the 

conditions of Appellant’s probation to include certain geographic restrictions 

to be enforced by GPS monitoring. (See N.T. Revocation Hearing, 3/16/15, 

at 1-4; see also Order of Court, 7/18/14, at unnumbered pages 1-2).” 

Commonwealth v. Peno, No. 1795 MDA 2015, unpublished memorandum 

at 2-4 (Pa. Super. filed Oct. 13, 2016). Appellant subsequently tampered with 
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the GPS monitoring device, which resulted in the Commonwealth charging him 

with criminal mischief and filing a Petition alleging a VOP. 

After a summary hearing, on May 21, 2015, the court found Appellant 

guilty of the criminal mischief offense and immediately sentenced him to pay 

the costs of prosecution and a fine of one hundred dollars. See id. at 6, citing 

N.T. Summary Hearing, 5/21/15, at 4-6, 29. The VOP court subsequently

issued an Order finding that Appellant had violated the conditions of his 

probation. See Order, 6/11/15. On September 10, 2015, the court sentenced 

Appellant to a term of incarceration of four years and two months’ to 20 years’ 

incarceration, to be followed by a term of probation of 20 years.1 See N.T. 

Sentencing, 9/10/15, at 13-14.

Appellant filed a Post-Sentence Motion, which the court denied on 

October 10, 2015. Appellant timely appealed, challenging, inter alia, the 

legality of modifying the conditions of his probation to include GPS monitoring.

This Court affirmed his Judgment of Sentence on October 13, 2016. See 

Peno, supra, 1795 MDA 2015 (Pa. Super. filed Oct. 13, 2016) (unpublished 

memorandum). The Pennsylvania Supreme Court denied Appellant’s Petition 

for Allowance of Appeal on May 3, 2017. Commonwealth v. Peno, 168 A.3d 

1290 (Pa. 2017).

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1 The court subsequently modified the term of incarceration to three years, 

nine months, and 24 days to 20 years’ incarceration.
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On June 23, 2017, Appellant filed pro se the instant PCRA Petition, 

alleging that (1) the trial court’s July 18, 2014 Order violated 42 Pa.C.S. § 

97712 because it modified his probation before the Superior Court had 

remanded his case record to the trial court; (2) the court’s Order subjecting 

him to GPS monitoring constituted an illegal search and seizure;

3 and (3) “all 

my counsels” provided ineffective assistance because he “did not know they 

were going to change condition until [he] saw parole, probation Officer on July 

18, 2014.” Petition, 6/22/17, at 3, 4.

The PCRA court appointed Damian J. DeStefano, Esq., to represent 

Appellant. On September 18, 2017, he filed a Supplemental PCRA Petition

reiterating Appellant’s illegal sentencing claim and requesting additional time 

to review and determine the applicability of the Pennsylvania Supreme Court’s 

July 19, 2017 holding in Muniz, supra. 

After receiving numerous extensions of time to file an additional 

Supplemental PCRA Petition, on July 23, 2018, counsel instead filed a Petition 

for Leave to Withdraw as Counsel and a Turner/Finley4 “no merit” letter,

concluding that the holding in Muniz did not apply to Appellant’s case and 

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2 See 42 Pa.C.S. § 9771 (“Modification or revocation of order of probation”).

3 Appellant conceded that he raised this issue on direct appeal. See PCRA 

Petition at 4. See also Commonwealth v. Peno, No. 1795 MDA 2015, 

unpublished memorandum at 7, 12 (Pa. Super. filed Oct. 13, 2016.

4 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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that the other issues Appellant sought to raise had been previously litigated

and were, therefore, not cognizable under the PCRA.

5

 See Turner-Finley No 

Merit Letter, 7/23/18, at 9-16. With respect to Appellant’s ineffective 

assistance of counsel claims, Attorney DeStefano concluded that the claims 

lacked merit. See id. at 17-19.

On July 24, 2018, the PCRA court granted counsel’s Petition for Leave 

to Withdraw as Counsel.

On August 2, 2018, Appellant filed pro se an Amended PCRA Petition in 

response to “Appointed Attorney[’]s No Merit Letter and Petition to Withdraw.” 

In his Amended Petition, Appellant averred both that he had timely filed his 

Muniz claim and that it had merit, and he again reiterated his claim that the 

trial court’s July 18, 2014 sentencing order was illegal on its face. Amended 

PCRA Petition, 8/2/18, at 1 (unpaginated).

On September 19, 2018, the PCRA court dismissed Appellant’s PCRA 

Petition.6 This timely appeal followed. Appellant filed a Pa.R.A.P. 1925(b) 

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5 A petitioner is not eligible for post-conviction relief if he has previously 

litigated the allegation of error. 42 Pa.C.S. § 9543(a)(3). An issue has been 

previously litigated if either “the highest appellate court in which the petitioner 

could have had review as a matter of right has ruled on the merits of the 

issue” or “it has been raised and decided in a proceeding collaterally attacking

the conviction or sentence.” Id. at §9544.

6 Generally, the PCRA court must provide notice of its intent to dismiss a PCRA 

Petition and provide the petitioner with twenty days in which to respond. 

Pa.R.Crim.P. 907(1). However, Appellant did not object to the PCRA court’s 

failure to provide notice of intent to dismiss pursuant to Rule 907, rendering 

any argument on this issue waived. Commonwealth v. Boyd, 923 A.2d 513, 

514 n.1 (Pa. Super. 2007).
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Statement as directed by the PCRA court. The court filed a Rule 1925(a) 

Opinion in which it adopted the rationale set forth in counsel’s “no-merit” 

letter.

Appellant raises the following two issues on appeal:

1. Whether the PCRA court was misplaced by granting appointed 

PCRA counsel’s No-Merit Letter and Motion to Withdraw without 

a hearing in that former counsel[] Paul Muller, Andrea Haynes, 

James J. Karl of Dauphin County Public Defender[’]s Office 

were all ineffective by allowing conditions which are now illegal 

since Com[monwealth] v. Muniz, 164 A.3d 1189 (Pa. 2017) 

made 42 Pa.C.S.[] subsectuions 9799.30, 9733 [sic] thus the 

entire SORNA program could not apply retroactively to persons 

who committed their crimes before December 20, 2012.

2. Whether the PCRA court erred by that an issue in this appeal is 

whether the Commonwealth may punish an individual for 

conduct which was made a crime by an amended statute where 

the original version of the statute has been unconstitutional in 

its entirety?

Appellant’s Brief at 3.

Appellant first asserts that, because he did not consent to the GPS 

condition and did not authorize his attorney, Paul Muller, Esq., to waive the 

hearing requirement in order to obtain Appellant’s prompt release from 

incarceration, counsel provided ineffective assistance of counsel. See id., at 

9-10. This issue warrants no relief.

We review the denial of a PCRA Petition to determine whether the record 

supports the PCRA court’s findings and whether its order is otherwise free of 

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This 

Court grants great deference to the findings of the PCRA court if the record 

supports them. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super. 
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2007). We give no such deference, however, to the court’s legal conclusions. 

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012). 

The law presumes counsel has rendered effective assistance. 

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he 

burden of demonstrating ineffectiveness rests on [A]ppellant.” Id. To satisfy 

this burden, Appellant must plead and prove by a preponderance of the 

evidence that: “(1) his underlying claim is of arguable merit; (2) the particular 

course of conduct pursued by counsel did not have some reasonable basis 

designed to effectuate his interests; and, (3) but for counsel’s ineffectiveness, 

there is a reasonable probability that the outcome of the challenged 

proceeding would have been different.” Commonwealth v. Fulton, 830 A.2d 

567, 572 (Pa. 2003). Failure to satisfy any prong of the test will result in 

rejection of the appellant’s ineffective assistance of counsel claim. 

Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).

Appellant has not supported his bald claim that all his “counsels”

provided ineffective assistance. He has not pled that the actions taken by his 

counsel were not designed to effectuate his interests, or that, but for his 

counsels’ alleged ineffectiveness, the outcome of these proceedings would 

have been different. As a result of Appellant’s failure to address these factors 

set forth in Fulton, supra, this issue warrants no relief. 

In his second issue, Appellant presents a convoluted, nearly 

incomprehensible, discourse that essentially boils down to an averment that 

the PCRA court erred in finding that he had not raised a valid Muniz claim 
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with respect to the court’s July 18, 2014 imposition of the GPS monitoring 

condition. Appellant’s Brief at 16-18. 

Appellant’s reliance on Muniz is misplaced. In Muniz, our Supreme 

Court held that enhanced sexual offender registration requirements 

constituted punishment and that retroactive application of the registration 

provisions of the Sexual Offender Registration and Notification Act (“SORNA”) 

violates the ex post facto clause of the Pennsylvania Constitution. Muniz, 164 

A.3d at 1193.

Muniz pertains to registration requirements imposed on sex offenders;

the “punishment” Appellant complains of is GPS monitoring as a probationary 

condition. Unlike Muniz, this probationary condition does not pertain to 

SORNA or any other statute relevant to registration requirements imposed on 

sex offenders. Thus, the PCRA court did not err in concluding that the Muniz

holding does not entitle Appellant to relief.

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/9/2019
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