Com. v. Campbell, K.

J-S04035-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

KIETH CAMPBELL :

:

Appellant : No. 251 EDA 2024

Appeal from the PCRA Order Entered December 15, 2023

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

No(s): CP-51-CR-0003623-2019

BEFORE: OLSON, J., STABILE, J., and FORD ELLIOTT, P.J.E.*

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 5, 2025

Appellant, Kieth Campbell, appeals from the order dismissing his

petition filed pursuant to in the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§ 9541, et seq., in which he challenged the effectiveness of his prior counsel

and alleged that counsel had improperly induced him to enter a guilty plea

based on incorrect legal advice.1 Appellant previously entered a guilty plea to

three counts of third-degree murder and single counts of aggravated assault

and driving under the influence (DUI) of a controlled substance or metabolite

as a first offense.2 Upon review, we affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 While Appellant’s name is docketed as “Kieth Campbell” in this appeal, he is

mainly referred to as “Keith Campbell” in the certified record.

2 18 Pa.C.S. §§ 2502(c), 2702(a), and 75 Pa.C.S. § 3802(d)(1), respectively.

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The PCRA court has summarized the underlying facts supporting the

convictions, as accepted by Appellant during his oral guilty plea colloquy, as

follows:

On January 2, 2019, at approximately 1:11 [a.m.], [Police] Officer

Betsch, who is assigned to the Newport Delaware Police

Department was sitting at a red light at the intersection of East

Newport Pike and Becker Street in Newport, Delaware. At this

time, a white Audi drove past him in the left lane at [a] high rate

of speed, disregarding the red light. Officer Betsch activated his

lights and sirens in [an] attempt to stop the vehicle. During his

pursuit, he was going over 100 miles per hour. He was joined by

four other state police officers. The pursuit was terminated at

[ap]proximately 1:27 [a.m.] due to Appellant’s high rate of speed.

At this time, Appellant was passing over Naamans Road into

Pennsylvania. Dash cam videos from each of the officer’s

vehicle[s] capture[d the] pursuit.

Approximately 18 minutes later, around 1:45 [a.m.,] Appellant’s

car was seen coming down the ramp onto Packer Avenue from I-

95 North. Appellant was traveling westbound at this time. On the

eastbound side of Packer Avenue, an Acura was being driven by

one of the decedents in this case, Joseph Ferry. There were three

other individuals in the car at this time. Kelly Anne Wiseley was

in the front passenger seat, Dennis Palandro [was] behind the

driver’s seat[,] and his wife Nicole Palandro [was] behind the front

passenger seat. As they traveled down the 600 [b]lock of Packer

Avenue, Appellant st[r]uck their car.

In efforts to avoid the collision, Mr. Ferry ma[de] a “defensive

maneuver[.”] As a result of the maneuver, the point of impact on

the Acura caused the vehicle to be thrown around in a circle. Mr.

Ferry was ejected from the car and came to rest approximately 30

feet from the vehicle’s resting point. Kelly Wisely, the front seat

passenger was entrapped in the passenger seat between the

dashboard firewall. Dennis Palandro, the left rear passenger was

forced around the interior of the vehicle. Mr. Ferry, Ms. Wiseley[,]

and Mr. Palandro were pronounced dead [at] the scene. Medical

examiner, Dr. Lindsay Simon[,] determined the manner of death

for all three individuals was the accident. Mrs. Palandro was

severely injured but survived. She was in critical condition and

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was treated at Thomas Jefferson Hospital. At the time of the guilty

plea, she had five surgeries[] and was in the hospital for the entire

month of January 2019.

Officer Paul Busch from the [Accident Investigation Division (AID)]

was assigned to investigate this incident. Officer Busch

[conducted] an accident reconstruction and was able to

determine[,] with a reasonable degree of scientific certainty, that

the Audi being driven by Appellant in this case was going 92.0577

miles per hour at the time of the crash. The Acura was going 25

miles per hour. Five seconds before the crash, the Acura was

going 37 miles per hour. The impact caused the vehicle to project

81 feet in the opposite direction of its travel. Officer Busch’s

investigation further revealed that the Audi intentionally steered

into the path of the Acura causing the deadly crash.

Prior to the accident, Appellant was with his mother, Unpin

Campbell. An interview with his mother revealed that he ha[d]

been acting “erratic” most of the day. Ms. Campbell had gone

with him to the casino in Delaware Park and noticed at some point

Appellant wrote stuff on paper and kept saying something about

“[h]ave Jenny[’s] mom call me [to] make sure she is okay, and

that something bad was going to happen to everyone tonight, and

that we need to trust him and believe in him.” She told him he

needed to go back to this hospital, which he did, but left shortly

after because it was too crowded.

After the crash, Appellant’s blood was drawn. Dr. Richard Cohn,

a forensic toxicologist, determined[,] within a reasonable degree

of scientific certainty, that Appellant was a recent user of multiple

psychoactive agents, namely marijuana and amphetamine. He

determined that they were taken in close time proximity to each

other and in toxicologically significant dosage amounts. As a

result, Appellant was under the combined, impairing psychoactive

effects of the drugs and was unfit to operate a motor vehicle safely

on the highway.

PCRA Court Opinion, 6/6/24, 4-6 (record citations omitted; some formatting

in brackets). In addition to this summary, we note that Appellant was found

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to have sustained several self-inflicted stab wounds when the police arrived

at the scene of the collision. See N.T., 2/9/21, 26.

On February 9, 2021, Appellant entered his guilty plea to the above-

referenced offenses. Id. at 35. The Commonwealth agreed to nolle prosse

additional charges in exchange for the plea, but did not make any agreement

as to a sentencing recommendation other than to agree that it would not seek

a mandatory life imprisonment sentence for the multiple counts of third-

degree murder.3 Id. at 8, 12; Written Guilty Plea Colloquy, 2/9/21, 1 (“Plea

Bargain or Agreement”); see also 42 Pa.C.S. § 9715(a) (setting mandatory

sentence of life imprisonment, notwithstanding other statutes to contrary, for

“any person convicted of murder of the third degree in this Commonwealth

who has previously been convicted at any time of murder … in this

Commonwealth…”) (emphasis added).

At the conclusion of a sentencing hearing held on April 15-16, 2021, the

court imposed an aggregate sentence of thirty-seven and one-half to seventy-

six years’ imprisonment, including consecutive terms of eleven to twenty-two

years for each of the murder convictions and four-and-one-half to ten years’

for aggravated assault, with a concurrent term of six to twelve years’ for the

____________________________________________

3 The additional charges included three counts each of homicide by vehicle

and homicide by vehicle while driving under the influence and single counts of

recklessly endangering another person and possessing an instrument of crime.

75 Pa.C.S. §§ 3732(a) and 3735(a)(1)(i), and 18 Pa.C.S. §§ 2705 and 907(a),

respectively. See Trial Disposition and Dismissal Form, 2/9/21, 1-3.

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DUI conviction. See N.T., 4/16/21, 83; see also Sentencing Order, 4/16/21,

1-2.

On May 8, 2022, Appellant filed a counseled PCRA petition. In it, he

claimed, inter alia, that his plea counsel provided ineffective assistance by

inducing his plea “by giving him erroneous legal advice that informed him that

the Commonwealth was automatically entitled to a conviction on third-degree

murder solely because his case involved a motor vehicle accident.” PCRA

Petition, 5/8/22, ¶ 10(a). In an amended PCRA petition, he alleged that

counsel misadvised him by telling that: (1) “the Commonwealth could prove

malice for third[-]degree murder [by] proving only ‘mere recklessness;’” and

(2) “Pennsylvania law says a third-degree murder conviction can be obtained

in [an] automobile-related case with proof of only mere reckless driving.”

Amended PCRA Petition, 8/16/22, ¶ 10. He asserted that when he entered

his guilty plea, “he possessed only a version of the law that was explained to

him by his plea counsel.” Memorandum of Law, 8/16/22, 2.

In support of his claim, Appellant proffered a copy of an email to his

father from one of the attorneys who represented him at his plea hearing,

dated December 10, 2020. Appellant quoted the following portions of the

email in support of his claim:

[Third-degree] murder does not require an INTENT; it requires

mere RECKLESSNESS. Recklessness can be established by

various factors, such as speed, road conditions, manner of driving

and/or drugs or alcohol in one’s system and other facts specific to

the accident in a case. In Keith’s case our concern is that even

Keith’s “best” version of events will be deemed as RECKLESS- his

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suffering from a mental health episode, leaving the hospital

without seeing a doctor whether against medical advice or not,

leading police on a [two-state] high speed car chase, and causing

a collision at what the Commonwealth believes is 70 some miles

per hour while attempting to commit suicide via repeated self-

inflicted stab wounds.

…

I feel an ethical and moral obligation to put this in terms as plainly

as possible to make sure you are all aware and One Hundred

percent clear on the risks associated with trial and the viability of

our defense in the face of that risk. Essentially what we have here

in terms of a defense to the [third-degree] murder charge, based

on the law that applies and the facts in this case, is an argument

that amounts to either this was not reckless or not reckless

enough to meet the threshold of RECKLESSNESS for purposes of

[third-degree] murder.

Another way of saying it is essentially this was a little dangerous,

definitely negligent but not reckless conduct within the purview of

the statute. Not the kind of recklessness that [third-degree]

murder aims to punish…

…

I need to make it clear that there are significant problems with

this argument and a Judge may likely disregard this argument

because it is not consistent caselaw. Our argument against [third-

degree] murder is not one that is entirely sound in law, and

caselaw is not on our side here. We believe that we have

completed an exhaustive review and research of Pennsylvania law

and [caselaw] to find other cases similar to ours where the court

agreed that the actions were not [third-degree] murder and our

results have been disappointing and unsuccessful. The

Supreme Court has found that when there is an automobile

accident with recklessness it is 3rd degree murder.

…

So, if I were Keith, with a not so strong legal argument against

[third-degree] murder, and the risk of MANDATORY LIFE if I am

convicted, I would take that chance and go to trial. I would not

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be willing to risk my freedom for the rest of my life on this

argument.

Memorandum of Law, 8/16/22, 11-12, 16-17, quoting Attached Email from

Plea Counsel to Father, 12/10/20, ¶¶ 3, 6-7, 11-12 (some formatting in

brackets; emphasis in bold added in Appellant’s quotation; emphasis in

capitalization and italics in original).

He also proffered a second email from the same plea hearing attorney,

addressed to his father, dated March 13, 2020, including the following

paragraph:

I did my best to assure your wife that we are doing everything

that we can to get Keith out of this with the least amount of jail

possible. That has always been the goal- but least amount of jail

is a subjective statement because of the penalties we are up

against, and the mandatory minimums at play here. Whether he

pleads to [third-degree] murder or to an enhanced penalty on

vehicular homicide is still up for debate, your wife indicated she

does not agree that this is [third-degree] murder, but I think she

is somewhat confused as to what [third-degree] murder under the

law requires it is any “reckless or negligent act by a person that

causes the death of another.” We have discussed and mentioned

that we are not that keen on the [third-degree] murder charge in

our conversations with the [District Attorney], and that discussion

is still very much on the table. We all did agree at our last meeting

at their office that we would first focus on whether we can agree

to a number, and then we would discuss what charges we

ultimately would plead to.

Motion for Leave to Amend PCRA Petition, 8/6/23, ¶ 4, citing Attached Email

from Plea Counsel to Father, 3/13/20, ¶ 7 (some formatting in brackets).

With the consent of the Commonwealth, the PCRA court presided over

an evidentiary hearing, at which Appellant testified and presented the

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testimony of his parents, and the Commonwealth presented the testimony of

one of Appellant’s former attorneys, who drafted the above-referenced emails,

Julia Rogers, Esquire.

Appellant’s father testified that his son wanted to proceed to trial on the

third-degree murder charges and that he proceeded with the plea based on

Attorney Rogers’ advice in the proffered emails, which suggested that third-

degree murder pertained to acts of mere recklessness. See N.T., 8/28/23,

11, 13-14. Appellant’s father further testified that he convinced his son to

enter the guilty plea based on that advice. Id. at 16-17. He opined that he

would not have advised Appellant to enter the guilty plea if he knew that third-

degree murder would have required more proof than just a reckless car

accident that resulted in death. Id. at 18.

On cross-examination, the Commonwealth confronted Appellant’s

father with a different pre-plea-hearing email, dated October 7, 2020,

containing a meeting agenda, in which counsel advised, inter alia, that: (1)

third-degree murder was “essentially aggravated assault under

[Pennsylvania] law[,] the only difference being that someone dies in third-

degree murder;” and (2) the standard for third-degree murder is “an

individual who consciously disregards an unjustified and extremely high risk

that his actions might cause death or serious bodily harm to another, [who]

acts with malice.” N.T., 8/28/23, 25-27. Appellant’s father agreed that the

email detailed “a different standard” than just “mere recklessness.” Id. at 29.

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Appellant’s mother testified consistent with her husband. She

maintained that Appellant pleaded guilty due to her and her husband telling

him that he needed to plead guilty because his attorney had asserted that the

Pennsylvania Supreme Court had ruled that “mere reckless[ness] is third-

degree murder.” See N.T., 8/28/23, 59-60. She added that Appellant’s

attorneys never told her that third-degree murder required more proof than

“a merely reckless car accident that results in death” and, if she was aware

that third-degree murder required more proof, she would not have advised

her son to plead guilty. Id. at 60-61.

Appellant testified that he pleaded guilty because his attorneys had told

him “any car accident that results in death is third-degree murder, based off

of mere recklessness[,] and that would give [him] mandatory life in jail.” N.T.,

8/28/23, 70; see also id. at 83 (“She said any car accident that results in

death would be third-degree murder based off of mere recklessness.”). He

asserted that his counsel never informed him that third-degree murder

required more proof than mere recklessness. Id. at 70-71. He agreed that

his parents convinced him to plead guilty after his parents relayed “a bunch

of information from the lawyers.” Id. at 71-72. He testified that he would

not have pleaded guilty and would have wanted a trial if he had known that

third-degree murder required more proof than mere recklessness. Id. at 72-

73, 76-77. He acknowledged that he was aware, prior to entering his guilty

plea, that he risked a mandatory term of life imprisonment if he proceeded to

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trial and had been convicted of multiple counts of third-degree murder. Id.

at 74-78.

On cross-examination, Appellant testified that his counsel had mailed

him a selection of the emails that were sent to his parents, but he did not

recall ever seeing the meeting agenda email to his parents, dated October 7,

2020, which was the subject of the cross-examination of his father. N.T.,

8/28/23, 98-100. He maintained that Attorney Rogers told him that any car

accident that results in death would be third-degree murder and denied that

the attorney explained the concept of malice to him. Id. at 97, 102. He

nevertheless acknowledged that the plea court advised him during its oral

guilty plea colloquy that third-degree murder was “a killing without specific

intent to kill, but with malice.” Id. at 106 (Appellant: “If it is on [the] record,

then it is on [the] record.”).

Attorney Rogers testified that she had at least ten separate face-to-face

consultations with Appellant and communicated with him through written

correspondence. See N.T., 8/28/23, 124-25. She noted that while she would

discuss her conversations with his parents in her in-person meetings with

Appellant, she never sent him copies of her emails with his parents. Id. at

126-27. She confirmed that she provided Appellant with a copy of the meeting

agenda that she had sent his father in the email dated October 7, 2020, along

with “10 or 15 cases” in which third-degree murder convictions were appealed

and upheld “under similar factual scenarios.” Id. at 128, 130. On that

occasion, she recalled that she talked with Appellant about, inter alia, the

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elements that the Commonwealth would have to prove for him to be found

guilty at trial of third-degree murder, including malice. Id. at 129-30.

As to her advice to Appellant, Attorney Rogers testified as follows:

We told him that the act of driving while attempting suicide at a

high rate of speed would be interrupted [sic] by this [c]ourt likely

to be malice. And then a jury would likely be convinced that this

was malice, given that it clearly involved him disregarding the risk

that he would pose to others and the situations.

We had a lot of conversations about what you have -- when you’re

attempting suicide, people attempt suicide in situations in which

there is no risk to other people; they jump off a bridge, they take

a bunch of drugs, they shoot themselves. Then in a situation like

this, the underlying act would likely be interpreted as malice.

N.T., 8/28/23, 130. She further acknowledged that she had no reason to

believe that he misunderstood the elements of third-degree murder and the

nature of malice in his case. Id. at 137. She affirmed that she never told him

that the Commonwealth only needed to demonstrate mere recklessness to

prove third-degree murder. Id. at 143 (“Q. To the best of your memory, did

you ever tell your client that the Commonwealth only had to prove mere

recklessness to prove their case? A. I absolutely never told the

Commonwealth that -- or told [Appellant] that. Malice was something we

talked about ad nauseam.”). She also confirmed that she never advised him

that the Pennsylvania Supreme Court had held that any car accident that

resulted in death would support a third-degree murder conviction. Id. (“Q.

To the best of your memory, ma’am, did you ever tell your client that any car

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accident that results in death would qualify for third-degree murder under

Pennsylvania Supreme Court case law? A. Absolutely not.”).

On cross-examination, Attorney Rogers agreed that third-degree

murder required more than mere recklessness but explained that her use of

“mere recklessness” in her communications with Appellant’s parents was an

attempt to get them to understand that third-degree murder did not require

a specific intent to kill:

As I told the Commonwealth, we had a good amount of struggle

getting the parents to understand that you could be convicted of

murder for something other than specific intent to kill. So my use

of the word “mere,” was simply as a demonstrative example that

you can be convicted of third-degree murder, even when you don’t

have the specific intent to kill, because you conduct yourself

otherwise that causes the death of another.

N.T., 8/28/23, 150. She disagreed with the notion that the reference to “mere

recklessness” was incorrect advice, referring to the fact that the emails

including the reference were part of an “ongoing conversation … to get the

parents to understand the difference between specific intent to kill … and the

lesser included offenses that can constitute murder in the State of

Pennsylvania.” Id. at 152. She did, however, agree that her emails did not

provide the definition of third-degree murder and agreed that her assertion

that “[t]he Supreme Court has found that when there is an automobile

accident with recklessness, it is third-degree murder,” was not an “accurate

narration” of Pennsylvania law. Id. at 152-53.

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Concerning her emails to Appellant’s parents, Attorney Rogers testified

that she was unaware that his parents were sharing her emails to them with

Appellant and explained that she advised against them sharing them with

Appellant:

That was also specifically discussed that he shouldn’t have

information in his cell when he had a cellmate that could, as

indicated in one of my e-mails to the parents, the cellmate could

go through his stuff and use it to try to get himself a better offer

because this was a high profile case and we were very concerned

that other inmates were going to turn on Keith while he was in

there.

N.T. 8/28/23, 165. She remarked that she would not have written the

correspondence with the parents if she knew they were being shared with

Appellant:

Well, the parents sent the e-mails that we told them not to share

with Keith in prison -- this is the first I’m hearing on that. I was

never aware that that was happening. I certainly wouldn’t have

written these extensive e-mails if that is what was happening,

because that was against what we were trying to isolate Keith

from.

Id. at 166.

At the end of the hearing, the PCRA court held the case under

advisement until the parties could submit post-hearing briefs. On October 19,

2023, Appellant filed an amended PCRA petition proffering additional emails

between Attorney Rogers and his father to demonstrate that his father told

Attorney Rogers that he would be mailing a copy of the attorney’s December

10, 2020 email to his son. See Motion for Leave to Amend PCRA Petition,

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10/19/23, ¶¶ 3-6; see also id., Attached Email from Appellant’s Father to

Attorney Rogers, 12/10/20 (“I will copy your email and mail it to Keith. It

might be better for him to read your explanation of his case rather than him

trying to remember what was said to [sic] over the phone or by Zoom.”).

On December 15, 2023, following its review of the written briefs from

the parties, the PCRA court dismissed the petition. The PCRA court made a

few credibility determinations in its opinion. First, the PCRA court rejected

Appellant’s testimony that plea counsel had provided him incorrect

information about the elements of third-degree murder because that

testimony was contradicted by Appellant’s statements in his guilty plea

colloquy and also through plea counsel’s hearing testimony about “their

frequent discussions.” See PCRA Court Opinion, 6/6/24, 10-11 (noting

Appellant confirmed his understanding of elements of his offenses in colloquy,

court clarified that third-degree murder involved malice, and in-court plea

colloquy was conducted after Appellant visited with counsel and reviewed

written guilty plea colloquy).

Second, the PCRA court credited plea counsel’s testimony that she

provided accurate advice to Appellant concerning his lack of a potential

defense to third-degree murder based on an alleged diminished mental

capacity. See PCRA Court Opinion, 6/6/24, 11-12 (“[Counsel] made clear

that pursuing a diminished capacity defense would entail admitting guilt to

third-degree murder and [Appellant] facing a life sentence.”).

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Third, the PCRA court found that plea counsel accurately advised

Appellant on the elements of third-degree murder:

Through testimony at both the guilty plea hearing and the

evidentiary hearing, [plea c]ounsel clearly and repeatedly

discussed the facts and merits of the case with Appellant.

Specifically, [c]ounsel informed Appellant of the necessity for the

Commonwealth to prove malice. This requirement was clearly and

accurately conveyed to Appellant through various means of

communication. Conversely, Appellant’s testimony regarding

counsel’s alleged communication of a “mere recklessness”

standard and equating all vehicular accident deaths to third-

degree murder was inconsistent and unconvincing.

PCRA Court Opinion, 6/6/24, 12-13 (record citation omitted).

Lastly, the PCRA court found that plea counsel “provided accurate legal

advice regarding third-degree murder and automobile accidents.” PCRA Court

Opinion, 6/6/24, 13. The PCRA court additionally noted that Appellant’s

conduct satisfied the malice element that was properly explained to Appellant:

An automobile accident may constitute third-degree murder if

there’s evidence of malice, indicating conscious disregard for the

high risk of causing death or serious bodily injury.

Commonwealth v. Packer, 168 A.3d 161 (Pa. 2017). Similarly,

as in the present case, [Packer]’s actions[] included going to

Walmart, opening a newly purchased dust remover, and inhaling

two to three times in five-to-ten second bursts each time. Id. at

163. After driving out of the parking lot and getting to a red light,

[Packer] huffed again. Id. at 164. While under the influence and

driving at about 43 MPH, [Packer] hit a vehicle and ultimately

caused a collision resulting in death, which demonstrated reckless

behavior meeting the legal definition of malice for third-degree

murder. Id.

As such, [Packer] was convicted of third-degree murder, which

conviction was upheld by the Pennsylvania Supreme Court, who

found that the actions were sufficient to meet the legal definition

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of malice. Id. at 168. Here, and again, [Appellant] was

repeatedly told by counsel, that his actions on the night the

victims were killed were more than likely able to meet the legal

definition of malice for third-degree murder, as testified to by both

Appellant and his counsel at both the evidentiary hearing and

guilty plea. Appellant left a hospital against medical advice,

engaged in a multi-state high speed chase, attempted to commit

suicide by stabbing himself while driving, and ultimately

purposefully drove his car into the car carrying the victims.

Appellant not only expressed a desire to end his own life but also

displayed a blatant disregard for everyone on the road that night.

Appellant’s behavior was so egregious that the pursuing police

officers decided to halt the pursuit rather than continue

endangering the lives of those on the road on the night in

question. This conduct unequivocally meets the legal threshold

for malice in the context of a fatal car accident. Appellant’s actions

resulted in three deaths. There is no question that Appellant

engaged in conduct far beyond that in [Packer].

PCRA Court Opinion, 6/6/24, 13-14 (record citations omitted; emphasis in

original).

The PCRA court made a legal determination that any of the statements

by PCRA counsel to Appellant’s parents in the emails could not result in

prejudice, i.e., the entry of an involuntary or unknowing guilty plea, because

PCRA counsel had properly advised Appellant on the elements of third-degree

murder: “The statements made to Appellant’s parents are immaterial and do

not have a bearing on Appellant’s ineffective assistance of counsel claim.

Ultimately, if Appellant knew the elements of the crime, it does not matter

whether his parents understood them.” PCRA Court Opinion, 6/6/24, 12.

Appellant timely appealed and complied with the PCRA court’s order to

file a concise statement of errors complained of on appeal.

Appellant presents the following questions for our review:

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1. Is the PCRA court’s dismissal of [Appellant’s] petition

objectively supported by the record and free of legal error

where he met his burden of proving that counsel caused him

to plead guilty by incorrectly advising him that he could be

convicted of third-degree murder with proof of only “mere

recklessness,” a negligent act, or a merely reckless car

crash that causes the death of another?

2. Did the PCRA court abuse its discretion when it denied

[Appellant’s] timely motion to amend his petition where the

proposed amendment would have demonstrated that plea

counsel provided materially false testimony at the PCRA

hearing to avoid a finding that she provided ineffective

assistance?

Appellant’s Brief, 3 (suggested answers omitted).

In his first issue, Appellant asserts the PCRA court erred by denying him

relief on his ineffective assistance of counsel claim alleging that erroneous

legal advice improperly induced him to enter his guilty plea. See Appellant’s

Brief, 10-29. Citing cases where defendants entered guilty pleas based on

counsel’s advice that improperly instructed them on their sentencing outcome

or pre-trial rights, Appellant asserts that he is similarly entitled to relief. Id.

at 11-13, citing Commonwealth v. Barndt, 74 A.3d 185 (Pa. Super. 2013);

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

Commonwealth v. Thomas, 506 A.2d 420 (Pa. Super. 1986).

As for the existence of the incorrect advice, Appellant points to his

evidentiary hearing testimony alleging that plea counsel had “said any car

accident that results in death would be third-degree murder based off of mere

recklessness.” Appellant’s Brief, 17-18, quoting N.T., 8/28/23, 70-71, 83.

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He also refers us to his testimony that the advice at issue was made to him

“personally and via an email that [plea counsel] sent to his parents[,] which

was in turn sent to him.” Appellant’s Brief, 18. He asserts that his evidentiary

hearing testimony demonstrated that plea counsel advised him that he could

be convicted of third-degree murder “with proof of only mere reckless or

evidence of a merely reckless car accident.” Id. at 18-19. As for the alleged

incorrect advice offered “via an email,” Appellant directs us to his parents’

testimony addressing the December 10, 2020, and March 13, 2020 emails

between plea counsel and his parents. Appellant’s Brief, 19-22. Given the

credibility and legal findings of the PCRA court, we are unable to agree with

Appellant that he is entitled to relief.

“Our standard of review of a [PCRA] court order granting or denying

relief under the PCRA calls upon us to determine ‘whether the determination

of the PCRA court is supported by the evidence of record and is free of legal

error.’” Commonwealth v. Pier, 182 A.3d 476, 478 (Pa. Super. 2018),

quoting Barndt, supra, 74 A.3d at 192. Additionally, our Supreme Court

has noted that reviewing Courts are bound by the PCRA court’s credibility

findings:

[T]h[e appellate] Court is bound by the [PCRA] court’s credibility

determinations, unless those determinations are not supported by

the record. The credibility determinations are to be provided great

deference, and indeed, they are one of the primary reasons PCRA

hearings are held in the first place. Moreover, we must conduct

our review in the light most favorable to the prevailing party, in

this instance, the Commonwealth. Given that the PCRA court, as

fact-finder, has the opportunity to listen to witnesses, to observe

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their demeanor and attitude, we have stated that there is no

justification for an appellate court, relying solely upon a cold

record, to review the fact-finder’s first-hand credibility

determinations.

Commonwealth v. Rizor, 304 A.3d 1034, 1058 (Pa. 2023) (internal

citations, quotation marks, and brackets omitted).

Upon reviewing an ineffective assistance of counsel claim, we must

presume that counsel was effective, and it is the burden of the PCRA petitioner

to prove otherwise. See Commonwealth v. Holloway, 739 A.2d 1039, 1044

(Pa. 1999). To prevail on an ineffectiveness claim, the PCRA petition must

plead and prove all of the following: (1) the underlying claim is of arguable

merit; (2) counsel’s action or inaction lacked any reasonable basis designed

to effectuate his or her client’s interest; and (3) prejudice, to the effect that

there was a reasonable probability of a different outcome if not for counsel’s

error. See Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987);

Strickland v. Washington, 466 U.S. 688 (1984). The PCRA court may deny

an ineffectiveness claim if “the petitioner’s evidence fails to meet a single one

of these prongs.” Commonwealth v. Basemore, 744 A.2d 717, 738 n.23

(Pa. 2000).

Moreover, it is well settled that

[a]llegations of ineffectiveness in connection with the entry of a

guilty plea will serve as a basis for relief only if the ineffectiveness

caused the defendant to enter an involuntary or unknowing plea.

Where the defendant enters his plea on the advice of counsel, the

voluntariness of the plea depends on whether counsel’s advice

was within the range of competence demanded of attorneys in

criminal cases.

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Pier, 182 A.3d at 478-79 (footnote and citation omitted). “Thus, to establish

prejudice, the defendant must show that there is a reasonable probability that,

but for counsel’s errors, he would not have pleaded guilty and would have

insisted on going to trial.” Barndt, 741 A.3d at 192 (internal quotation marks

and citation omitted).

Appellant alleges that his plea counsel improperly advised him on the

nature of third-degree murder by suggesting that its commission would be

satisfied by mere recklessness in the absence of malice, both through direct

consultation and through emails that counsel had sent to his parents and

which his parents then shared with him. We observe that the PCRA court

found Appellant’s testimony on that matter to be incredible and instead

credited plea counsel’s testimony that she properly advised Appellant. See

PCRA Court’s Opinion, 6/6/24, 14 (“Testimony from the guilty plea and

evidentiary hearing confirmed that counsel accurately defined malice and

advised Appellant that the Commonwealth’s evidence was sufficient to

establish it.”).

Appellant asks us to reject the PCRA court’s credibility determination

concerning the advice that plea counsel directly provided to him because

counsel was the author of the emails to his parents that separately contained

erroneous advice. See Appellant’s Brief, 27-28 (“Counsel’s PCRA testimony

denying giving incorrect advice appears subjectively self-serving because it

cannot be reconciled with her own emails or the testimony of Mr. Campbell

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and his parents.”). We cannot do this since the PCRA court’s credibility

findings are supported by the record. See Rizor, supra; see also N.T.,

8/23/23, 130-32 (plea counsel discussing her advice to Appellant concerning

malice element of third-degree and how jury may interpret his acts leading to

death of collision victims as proof of malice). Further, this line of argument is

unpersuasive because the inclusion of incorrect advice in counsel’s written

correspondence to his parents does not necessarily lead to the conclusion that

counsel incorrectly advised Appellant in their direct consultations because, as

counsel explained in her PCRA hearing testimony, the written correspondence

was meant to address questions that Appellant’s mother had, with the

intention of conveying the information to the mother, for whom English was

not a first language, and counsel instructed that those communications should

not be shared with Appellant. See N.T., 8/28/23, 139-40.

As to Appellant’s argument that plea counsel indirectly offered him

incorrect advice through the written emails to his parents, as intermediaries,

we are not bound by any credibility determination because the PCRA court’s

rejection of that theory was determined by legal conclusion. See PCRA Court

Opinion, 6/6/24, 12 (“The statements made to Appellant’s parents are

immaterial and do not have a bearing on Appellant’s ineffective assistance of

counsel claim.”). As to that conclusion, we apply a de novo standard of

review. See Commonwealth v. Miranda, 317 A.3d 1070, 1075 (Pa. 2024).

Before addressing the content of counsel’s emails and their possible

influence on Appellant’s decision to plead guilty, we note that neither

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Appellant, in his brief, nor the PCRA court, in its opinion, refer us to any

caselaw addressing a factual scenario where a defendant has alleged that he

was misadvised by an attorney’s advice to a third party which was then filtered

back to the defendant through that third party. Here, the PCRA court’s legal

conclusion does not appear to convey that it was a legal impossibility that

incorrect advice from an attorney to a third party can cause a defendant to

tender an involuntary plea in the event the third party conveys the incorrect

legal advice back to the defendant. The PCRA court’s holding is simply that

the emails — even assuming arguendo that they contained erroneous advice

— had no bearing on the Appellant’s decision to plead guilty because, in any

event, counsel properly conveyed correct legal advice to him on the

information at issue, and the record supported the notion that he was properly

advised of, and aware of, the nature of his lead offense at the time he entered

his plea. See PCRA Court Opinion, 6/6/24, 12 (“Ultimately, if Appellant knew

the elements of the crime, it does not matter whether his parents understood

them.”). On that point, we agree with the PCRA court’s analysis.

Here, the alleged sources of incorrect advice were the emails, dated

March 13, 2020, and December 10, 2020, from plea counsel to Appellant’s

father, asserting that mere recklessness causing a car accident was sufficient

evidence for third-degree murder, and the Supreme Court of Pennsylvania had

issued caselaw to that effect. See Motion for Leave to Amend PCRA Petition,

8/6/23, Attached Email from Plea Counsel to Father, 3/13/20, ¶ 7 (“… your

wife indicated she does not agree that this is 3 rd degree murder, but I think

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she is somewhat confused as to what 3 rd degree murder under the law

requires[,] it is any ‘reckless or negligent act by a person that causes the

death of another.’”); Memorandum of Law, 8/16/22, Attached Email from Plea

Counsel to Father, 12/10/20, ¶ 3 (“Third[-]degree murder does not require an

INTENT; it requires mere RECKLESSNESS”) (emphasis in original); id. at ¶ 11

(“The Supreme Court has found that when there is an automobile accident

with reckless[,] it is 3rd degree murder.”).

The isolated statements in those emails about mere recklessness alone

supporting the mens rea element for third-degree murder in cases where

automobile collisions result in a death are inaccurate characterizations of

Pennsylvania law. Instead, malice is the constituent element for third-degree

murder, and “[w]here malice is based on a reckless disregard of

consequences, it is not sufficient to show mere recklessness; rather, it must

be shown the defendant consciously disregarded an unjustified and extremely

high risk that his actions might cause death or serious bodily injury.”

Commonwealth v. Kling, 731 A.2d 145, 147-48 (Pa. Super. 1999); accord

Packer, supra, 146 A.3d at 1285 (quoting Kling); Commonwealth v.

Peters, 320 A.3d 1231, 1237-38 (Pa. Super. 2024) (en banc) (quoting

Packer’s restatement of Kling).

Plea counsel testified that the wording of her emails was chosen to

convey information to Appellant’s mother who did not use English as “her first

language,” N.T. 8/28/23, 139, and that the emails with Appellant’s parents

were part of “an ongoing conversation … to get the parents to understand the

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difference between specific intent … and what murder is and the lesser

included offenses that can constitute murder in the State of Pennsylvania.”

Id. at 152. At the same time, counsel conceded at the PCRA hearing that the

language in the emails to the parents about mere recklessness supporting

third-degree and related Pennsylvania Supreme Court caselaw were

misstatements of law when read in isolation. See id. at 152 (“Q. Okay. But

you did give -- the sentences that I read in the March 13, 2020 e-mail and the

December 10th, 2020 e-mail, you do agree that that’s not the definition of

what third-degree murder is? A. Sure.”); id. at 153 (exchange about

assertion that “The Supreme Court has found that when there is an automobile

accident with reckless it is third-degree murder” in the emails: “Q. Is it fair

to say that that is not an accurate narration of what Pennsylvania law is? A.

Sure.”).

From this concession about the emails from plea counsel, we can glean,

consistent with the PCRA court’s credibility findings, that while counsel was

correctly advising Appellant on the nature of third-degree murder charges in

her direct consultations, counsel had inadvertently created a pathway of

second-hand incorrect legal advice which filtered to Appellant through his

parents. In support of the existence of that pathway, Appellant also proffered

an email reflecting that his parents informed counsel that they were going to

share the December 2020 email with him. See Motion for Leave to Amend

PCRA Petition, 10/19/23, ¶¶ 3-6; see also id., attached Email from

Appellant’s Father to Attorney Rogers, 12/10/20 (“I will copy your email and

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mail it to Keith.”). Even with the existence of that possible source of

inaccurate advice that could have had some influence on Appellant in his case,

the record nevertheless supports the PCRA court’s finding that the emails to

Appellant’s parents did not cause Appellant to enter an unknowing or

involuntary guilty plea.

The testimony of plea counsel, deemed credible by the PCRA court,

reflected that Appellant received legally sound advice on the nature of his

third-degree murder charges in his direct consultations with counsel. Counsel

addressed the malice element for the offense with him and shared caselaw

with him suggesting that third-degree murder was an appropriate charge

under similar factual scenarios. See N.T., 8/28/23, 130. Counsel made clear

that she properly defined malice for Appellant, consistent with her October

2020 meeting agenda (which was not disputed to be incorrect) and testified

that “[m]alice was something [they] talked about ad nauseam.” Id. at 130-

31, 143; Appellant’s Brief, 28 (“Admittedly, the agenda accurately defines

third-degree murder.”). Based on her discussions with Appellant, plea counsel

testified that she had no reason to believe that Appellant misunderstood the

elements of third-degree murder and the “nature of malice” in his case. N.T.,

8/28/23, 137.

Given that the PCRA court deemed Attorney Rogers’ testimony credible,

we are bound to find that counsel correctly advised Appellant regarding

malice. As to the question of whether Appellant demonstrated a reasonable

probability that the second-hand incorrect legal advice caused him to enter an

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unknowing plea, Appellant needed to demonstrate to the PCRA court that the

three sentences at issue in the emails caused him actual confusion regarding

the mens rea element of third-degree murder or caused him to ignore the

correct legal advice offered him in at least ten separate face-to-face meetings.

See N.T. 8/28/23, 125. On this record, we cannot agree that the PCRA court’s

finding of lack of prejudice is either not supported by the record or erroneous.

First, when Appellant confirmed his understanding of the malice element

in his oral guilty plea colloquy, he agreed that he did not have any questions

for the court concerning the elements of his charges. See N.T. 2/9/21, 14.

The absence of any questions for the plea court suggested that there was no

actual confusion about the nature of the third-degree murder charges and

little reason to think that the stray emails from his parents caused him to even

question, let alone ignore, the wholesale advice of his attorney.

Second, “[t]he desire of an accused to benefit from a plea bargain is a

strong indicator of the voluntariness of his plea.” Commonwealth v.

Pollard, 832 A.2d 517, 524 (Pa. Super. 2003). Here, the fact that the

negotiated plea agreement allowed Appellant to avoid the possibility of facing

a mandatory life sentence in the event of multiple third-degree murder

convictions, while not dispositive of Appellant’s actual knowledge of the

elements of his charges, strongly suggested that his decision to enter the plea

was not made in a capricious manner such that Appellant had actually ignored

the advice in which plea counsel directly informed him of the nature of the

malice element for third-degree murder.

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Lastly, Appellant fails to refer us to any relevant caselaw from which we

can find ineffectiveness based on a third-party’s communication of incorrect

advice from a defendant’s attorney when there is already a credibility finding

that the same attorney offered legally sound advice to the client in direct

communications. We are unaware of any caselaw that would suggest that the

PCRA court should have inferred that a second-hand source of incorrect legal

advice from an attorney should take precedence over the attorney’s direct

communication of legally correct advice on the same point. On that basis, we

have no grounds to find a legal error with the PCRA court’s denial of the

ineffectiveness claim.

The totality of the circumstances suggests that Appellant entered a

knowing and voluntary guilty plea and was properly informed of the nature of

his third-degree murder charges based on his former attorney’s direct

communication of legally correct advice concerning the nature and elements

of his charges. We find no basis to upset the PCRA court’s conclusion that

Appellant failed to overcome the presumption of the effectiveness of his

former counsel and demonstrate that his former counsel caused him to enter

an unknowing or involuntary plea.

In his second issue, Appellant asserts that the PCRA court abused its

discretion by denying his motions to amend his PCRA petition which proffered

the emails which are addressed in his first issue. See Appellant’s Brief, 36-

39. Appellant does not address any orders specifically denying his motions to

amend his petition, but the PCRA court advises in its Rule 1925(a) opinion

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that it considered the amendments and the absence of a docket entry

concerning the granting of the amendments was the result of a clerical error.

As the PCRA court’s brief discussion of this claim reflects that there was no

denial of the amendment requests, there is no need for further review of this

claim to evaluate an abuse of discretion with respect to Pa.R.Crim.P. 905. See

Commonwealth v. Brown, 141 A.3d 491, 504 (Pa. Super. 2016) (noting

that PCRA court implicitly permits amendment under Rule 905(A) when it does

not strike supplement to PCRA petition and considers supplement when it

addresses petitioner’s arguments).

Order affirmed.

Date: 3/5/2025

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