J-S66003-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

KYLE WUNDER

Appellant No. 623 MDA 2016

Appeal from the PCRA Order April 1, 2016

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0004642-2012

BEFORE: BOWES, PANELLA AND JENKINS, JJ.

MEMORANDUM BY BOWES, J.: FILED OCTOBER 19, 2016

Kyle Wunder appeals from the April 1, 2016 denial of his petition for 

relief pursuant to the Post Conviction Relief Act (“PCRA”). We affirm and 

grant counsel’s petition to withdraw.

On July 12, 2013, Appellant entered guilty pleas to murder, robbery, 

burglary, and two counts of criminal conspiracy. The guilty pleas stem from 

Appellant’s participation in the shooting death of Douglas Herr during the 

burglary of decedent’s residence in Lancaster County. In return for the plea 

of guilty to first-degree murder, the Commonwealth agreed to forgo seeking 

the death penalty. The trial court accepted the plea, and on August 15, 

2013, it imposed life imprisonment for murder and current sentences of 
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imprisonment for the remaining offenses. Appellant did not file a direct 

appeal.

On August 28, 2014, Appellant filed a timely pro se PCRA petition 

asserting trial counsel’s ineffectiveness for: (1) failing to investigate the 

Commonwealth’s purported offer to reduce the grading of the homicide to 

second-degree murder and (2) ignoring his request to file a direct appeal. 

The PCRA court appointed Heather Adams, Esquire to represent Appellant 

during the PCRA proceedings, and counsel honed Appellant’s claims in an 

amended petition. 

Following an evidentiary hearing, wherein trial counsel, Jeffery Conrad, 

Esquire, testified regarding his representation of Appellant during the plea 

and sentencing proceedings, the PCRA court denied relief. The PCRA court 

reasoned that, since the purported plea offer did not exist, Appellant 

knowingly entered his plea to first-degree murder. As to the second 

component of Appellant’s ineffectiveness claim, the PCRA court noted that 

Appellant and Attorney Conrad proffered conflicting testimony disputing 

whether Appellant requested an appeal. Rather than make a credibility 

determination in favor of either witness, the PCRA court denied relief based 

upon its reasoning that Appellant could not articulate a meritorious issue 

that he would have raised on direct appeal. 

On March 11, 2016, this Court endorsed the PCRA court’s 

determination that the plea to first-degree murder was knowing and 
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voluntary; however, we vacated the order denying PCRA relief because the 

PCRA court’s rationale for rejecting Appellant’s second ineffectiveness claim 

was contrary to the well-ensconced principle our Supreme Court espoused in 

Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999). Stated plainly, “an 

unjustified failure to file a direct appeal upon request is prejudice per se, and 

. . . a defendant does not have to demonstrate his innocence or the merits 

of the issue he would have pursued on appeal to be entitled to relief.” 

Commonwealth v. Spencer, 892 A.2d 840, 842 (Pa. Super. 2006). Under 

those facts, “no discussion of the potential merit of any claims is necessary.” 

See Commonwealth v. Markowitz, 32 A.3d 706, 715 (Pa.Super. 2011).

Thus, we found that the PCRA court erred in deferring its fact-finding 

regarding whether Appellant established that he requested the appeal and 

remanded the case for the PCRA court to make the necessary 

determinations of fact and credibility. See Commonwealth v. Wunder, 

2016 WL 941921 (Pa.Super. 2016) (unpublished memorandum filed March 

11, 2016). 

On April 1, 2016, the PCRA court entered an opinion and order, 

wherein it stated its finding that Attorney Conrad’s testimony was credible 

and its conclusion that Appellant did not request that counsel file a direct 

appeal. This timely appeal followed. 
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On May 31, 2016, Attorney Adams filed with this Court a petition to 

withdraw from representation1and a self-styled “Turner/Finely Brief”.2 As 

a preliminary matter, we must address whether Attorney Adams has met the 

requirements of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and 

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). 

Turner/Finley requires counsel to conduct an independent review of the 

record before a court can authorize an attorney's withdrawal. Counsel must 

then file a no-merit letter detailing the nature and extent of his review and 

list each issue the petitioner wishes to have examined, explaining why those 

issues are meritless. Commonwealth v. Freeland, 106 A.3d 768 

(Pa.Super. 2014) (citations omitted). Counsel is required to 

contemporaneously serve upon his client his no-merit letter and application 

____________________________________________

1 This is Attorney Adams’s second request to withdraw from representation. 

She filed her initial petition to withdraw during Appellant’s first appeal from 

the order denying PCRA relief. As it was not certain at that juncture whether 

Appellant’s ineffectiveness claim was meritless, we denied her petition. See

Commonwealth v. Wunder, 2016 WL 941921 (Pa.Super. 2016) 

(unpublished memorandum at 14).

2 Attorney Adams’s current filing is representative of a brief required by 

Anders v. California, 386 U.S. 738 (1967), which outlines the procedure to 

withdraw from a direct appeal. The proper procedure to withdraw in postconviction relief matters is to submit a no-merit letter pursuant to the 

requirements of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and 

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). As 

our jurisprudence views the Anders procedures as affording greater 

protection than those prescribed under Turner/Finley, we overlook 

counsel’s misstep. Commonwealth v. Widgins, 29 A.3d 816, 817 n.2

(Pa.Super. 2011).
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to withdraw along with a statement that, if the court granted counsel's 

withdrawal request, the client may proceed pro se or with a privately 

retained attorney. Id. at 774. Thereafter, the reviewing court must conduct 

its own independent evaluation of the record and agree with counsel that the 

petition is meritless.

Here, we find that counsel has substantially complied with the 

requirements of Turner/Finley. Counsel represented that she reviewed the 

record, docket entries, the case files, and the relevant legal authority. She 

advised Appellant in a letter that she could not identify any issues of 

arguable merit, furnished him with a copy of her petition to withdraw and 

the appellate brief explaining why his claim was meritless, and advised him 

that he had the right to retain other counsel or represent himself pro se and 

file a response to the petition to withdraw. Appellant did not file a response. 

Counsel presents the following question for our review: “Whether trial 

counsel was ineffective for failing to file an appeal on behalf of Appellant.” 

Turner/Finley brief at 4. Our standard of review regarding an order 

denying a petition under the PCRA is whether the determination of the PCRA 

court is supported by the evidence of record and is free of legal error. 

Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014). The PCRA 

court’s findings will not be disturbed unless there is no support for the 

findings in the certified record. Id.
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As we outlined, supra, the crux of Appellant’s contention is that he 

directed trial counsel to file a direct appeal on his behalf and trial counsel 

ignored his request. We briefly reiterate the following legal principles that 

are pertinent to our review:

Generally, if counsel ignores a defendant's request to file a 

direct appeal, the defendant is entitled to have his appellate 

rights restored. Commonwealth v. Lantzy, 558 Pa. 214, 736 

A.2d 564 (1999). . . . However, such relief is appropriate only 

where the petitioner pleads and proves that a timely appeal was 

in fact requested and that counsel ignored that request. 

Commonwealth v. Harmon, 738 A.2d 1023, 1024 

(Pa.Super.1999). A mere allegation will not suffice to prove that 

counsel ignored a petitioner's request to file an appeal. Id.

Spencer, supra at 842. Thus, Appellant is entitled to relief so long as he 

pled and proved that he requested Attorney Conrad to file a direct appeal 

and that his request was unjustifiably ignored. 

In rejecting Appellant’s claim, the PCRA court concluded that Attorney 

Conrad testified credibly that Appellant did not request that he file a direct 

appeal. The certified record sustains the court’s credibility determination. 

During the evidentiary hearing, Appellant testified, albeit cryptically, that he 

requested counsel to file a direct appeal on his behalf. 

Q. After you were sentenced, did you speak with [Attorney 

Conrad] at all in regards to this appeal?

A. I know we spoke, but I can’t recall on exactly what it was.

Q. Okay. . . . Do you recall any specific conversation you had 

with Attorney Conrad in regards to an appeal to the Superior 

Court, to a higher court about your sentence?
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A. I can’t recall exactly, but I can recall talking about it, that I 

. . . asked him that he file any paperwork that we can for relief 

and reconsiderations.

Q. Okay. And was anything ever filed on your behalf?

A. No.

N.T., 2/24/15, at 8-9. 

In contrast to Appellant’s intimation, Attorney Conrad testified during 

the PCRA hearing that Appellant declined to request a direct appeal. He 

explained, 

So we had talked about the fact that[,] if he did . . . plead 

guilty, there would be almost no basis [to appeal] whatsoever. 

Unless something went wrong in the courtroom . . . , there 

would be no basis for appeal. 

And that’s, in fact, how it went down. We talked about 

that. We came in here and pled guilty. And I chatted with 

[Appellant] just afterward and talked about, you know, appeal? 

[“]Nah[”] I think was his exact word, [“]nah[”], n-a-h. There 

was no basis for an appeal in my opinion and he did not see one. 

Id. at 29-30.

Thereafter, Attorney Conrad reiterated that he recalled having a 

conversation with Appellant in the holding cell after the sentencing hearing 

where he discussed whether to file an appeal. Id. at 30. Again, he disputed 

that Appellant made a blanket statement to “file for any relief you can[.]” 

Id. 

Later, the following exchange occurred between Attorney Conrad and 

the PCRA court. 
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Just to be clear, you never had any discussions with 

[Appellant] after sentencing about any desire he may have had 

to file an appeal in this case for whatever reason? I mean, I 

understand what you said about the inadvisability of doing that, 

but even beyond that, did you ever have any conversations with 

[him] about his desire to file an appeal?

[Attorney Conrad]: Just back in the holding cell, your Honor, 

afterwards. I routinely go back and see a client[.]

Q. Did he indicate to you any interest in filing an appeal for any 

reason?

A. No, Your Honor. No.

Q. Did you, at any time prior to receipt of this PCRA petition, 

have any indication from him contrary to that?

A. No. No, Your Honor.

Id. at 37-38.

As the record supports the PCRA court’s decision to credit Attorney 

Conrad’s testimony that Appellant did not request a direct appeal instead of 

Appellant’s contrary testimony, that credibility determination is binding on 

this Court. Accordingly, we must conclude that an appeal was not requested 

and that the PCRA court correctly denied reinstatement of Appellant’s direct 

appeal rights. See Markowitz, supra (affirming PCRA court’s credibility 

determination that petitioner did not request direct appeal).

After independent review of the record, we find no meritorious issues 

that have been preserved for our review. Hence, agree with counsel that 

the petition is meritless.
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Petition of Heather Adams, Esquire, to withdraw granted. Order 

affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/19/2016