J-A02044-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JESSE PAUL KINDER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 418 WDA 2021

Appeal from the PCRA Order Entered March 1, 2021

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

No(s): CP-20-CR-0000306-2018

BEFORE: OLSON, J., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED: JANUARY 14, 2022

Jesse Paul Kinder (Kinder) appeals from the order of the Court of 

Common Pleas of Crawford County (PCRA court) dismissing his petition filed 

under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541-9546. After 

review, we affirm.

Kinder was found guilty of various offenses for two separate burglaries. 

The first happened at an electrical supply store called the Hite Company. 

During the burglary, Kinder stole a Milwaukee tool grinder and a Klein

camouflage-colored backpack. He also broke into a safe that had yellow paint 

transferred onto it when it was pried open. A week later, Kinder broke into a 

car wash office but was arrested while still inside the office. There, police

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* Retired Senior Judge assigned to the Superior Court.
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found a Milwaukee tool grinder that had the same model number as that stolen 

at the Hite Company; a Klein camouflage-colored backpack; and a pry bar

with yellow paint on it. Testing later revealed that the paint on the pry bar 

matched that found on Hite Company’s pried-open safe.

Before trial, both Kinder and the Commonwealth filed competing 

motions on the admissibility of the items recovered at the car wash (the 

grinder, backpack, pry bar) in the Hite Company case. After the trial court 

ruled that the items were admissible, Kinder proceeded pro se to non-jury 

trials in both cases and was found guilty on all charges. The trial court 

sentenced him to 3 to 6 years for the Hite Company burglary and a consecutive 

7 to 14 years for the car wash burglary, thus giving him an aggregate sentence 

of 10 to 20 years’ imprisonment. After the sentence, Kinder took a direct 

appeal and requested appointed counsel. We affirmed his judgment of 

sentence in the Hite Company case, but vacated his judgment of sentence in 

the car wash case because of a misgraded conviction. See Commonwealth 

v. Kinder, 237 A.3d 1026 (Pa. Super. June 2, 2020) (unpublished 

memorandum).

On August 5, 2020, Kinder filed a pro se PCRA petition only on the Hite 

Company case (CP-20-CR-0000306-2018). In his petition, he asserted claims 

of constitutional violations, ineffective assistance of counsel (IAC) and afterdiscovered evidence under 42 Pa.C.S. § 9543(a)(2)(i), (ii) and (v), 
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respectively. Counsel was appointed and filed a Turner/Finley letter.1 After 

reviewing counsel's letter, the PCRA court issued notice of its intent to dismiss 

the petition under Pa.R.Crim.P. 907. In his response, Kinder challenged the 

admission of the car wash items but did not frame it as a PCRA claim. After 

receiving his response, the PCRA court dismissed the petition without hearing, 

following which Kinder filed this appeal.2

On appeal, just as he did in his response, Kinder presents a 

straightforward challenge to the admission of the car wash items proving that

he committed the Hite Company burglary. He argues that the Commonwealth 

proved neither that he possessed the items when he was arrested nor that

they belonged to him. For support of his position, Kinder cites 

Commonwealth v. DelMarmol, 214 A.2d 264 (Pa. Super. 1965) (finding 

trial court erred in admitted a penknife found in store that burglary suspect 

was arrested in because there was no evidence connecting the knife to the 

alleged burglary). Finally, Kinder emphasizes that he had a co-conspirator 

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1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998);

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1998).

2 “The standard of review of an order dismissing a PCRA petition is whether 

that determination is supported by the evidence of record and is free of legal 

error.” Commonwealth v. Cruz, 223 A.3d 274, 277 (Pa. Super. 2019)

(cleaned up). “[A] PCRA court has discretion to dismiss a PCRA petition

without a hearing if the court is satisfied that there are no genuine issues 

concerning any material fact; that the defendant is not entitled to postconviction collateral relief; and that no legitimate purpose would be served by 

further proceedings.” Id. (cleaned up).
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(Meagan Duda) who pleaded guilty to helping him break into the car wash. 

As a result, he posits that it was just as believable that his co-conspirator 

brought the items to the burglary.

“To be entitled to PCRA relief, a petitioner must plead and prove by a 

preponderance of the evidence that the conviction or sentence under review 

was the result of one or more specifically enumerated bases, the claims have 

not been previously litigated or waived, and the failure to litigate the issue 

was not ‘the result of any rational, strategic or tactical decision by counsel.’ ” 

Commonwealth v. Flor, 259 A.3d 891, 902 (Pa. 2021) (quoting 42 Pa.C.S.A.

§ 9543(a)(2)-(a)(4)). An issue is previously litigated if “the highest appellate 

court in which appellant could have had review as a matter of right has ruled 

on the merits of the issue.” Id., § 9544(a)(2). “An issue is waived if appellant 

could have raised it but failed to do so before trial, at trial, ... on appeal or in 

a prior state postconviction proceeding.” Id., § 9544(b).

As noted, Kinder argues his issue as if he is on direct appeal, failing to 

recognize that this is a PCRA appeal of the dismissal of his petition. In his 

brief, Kinder neither mentions the PCRA nor bothers to frame his issue under 

any of the enumerated bases for PCRA relief under § 9543(a)(2). He also fails

to address why this issue would not be waived for failure to raise it on direct 

appeal. If this failure was attributable to direct appellate counsel’s 

ineffectiveness, then Kinder needed to show: “(1) the underlying claim has 

arguable merit; (2) counsel had no reasonable strategic basis for his action or 
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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.” Commonwealth v. Davis, 262 A.3d 589, 595 (Pa. Super. 2021) 

(citation omitted). Kinder failed to do that in his response to the PCRA court’s 

907 notice and fails again to so here. As a result, his issue is waived.

Even if properly raised, we would find the issue lacks merit. As the PCRA 

court explained:

Kinder believes that the Commonwealth had the burden at the 

suppression hearing of showing that he -- and not [his coconspirator] Meagan Duda -- transported these items there. His 

reliance upon [DelMarmol] is misplaced. The DelMarmol Court 

held that the admission at trial of a penknife had been prejudicial 

to the defendant, and ordered a new trial, where there was “the 

barest scintilla of circumstantial evidence connecting DelMarmol 

with the knife.” 206 Pa. Super. at 518, 214 A.2d at 267. The 

penknife had been found atop a cabinet [in a jewelry store], to 

which any number of customers had access, and with no evidence 

that DelMarmol had had a knife or that a knife had been used in 

the alleged burglary. Here, Kinder was discovered inside the office 

along with the items used in the break-in. His lone presence there 

in the middle of the night provided the circumstantial evidence 

connecting him to those items.

PCRA Court Opinion, 3/1/21, at 2.

We agree that Kinder’s arrest in the car wash office was more than 

enough to link him to the items recovered in that same office; neither 

possession nor ownership of the items was required for their admission in the 

Hite Company case. Thus, Kinder’s argument were more properly raised to 

the weight of the evidence rather than its admissibility.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 01/14/2022