Com. v. Cook, T.

J-S11021-26

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

THOMAS F. COOK :

:

Appellant : No. 615 WDA 2025

:

Appeal from the PCRA Order Entered April 29, 2025

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

No(s): CP-02-CR-0003936-2009

BEFORE: LAZARUS, P.J., STABILE, J., and NEUMAN, J.

MEMORANDUM BY NEUMAN, J.: FILED: June 2, 2026

Appellant, Thomas F. Cook, appeals pro se from the trial court’s April

29, 2025 order dismissing his “Motion for Specific Performance of Plea

Agreement.” After careful review, we affirm.

The facts of Appellant’s underlying convictions are not pertinent to the

issue he raises on appeal. In a prior appeal, this Court summarized the

relevant procedural history of Appellant’s case, as follows:

On August 20, 2009, [in the instant case docketed] at CP-02-CR-

3936-2009 (No. 3936), Appellant entered a guilty plea to one

count of burglary.2 The trial court subsequently sentenced

Appellant to serve 8 to 16 months’ incarceration, to be served

concurrently with the sentence imposed at No. 3[9]40. Appellant

did not file post-sentence motions or a notice of appeal at No.

[3936].

J-S11021-26

2 18 Pa.C.S.[] § 3502.[1] Appellant simultaneously pled

guilty to two counts of burglary at CP-02-CR-3940-2009

(No. 3940). At No. 3940, the trial court sentenced Appellant

to 8 to 16 months in prison, followed by one year of

probation. Appellant does not challenge the plea agreement

or judgment of sentence entered at No. 3940.

In 2011, Appellant entered a guilty plea, in an unrelated case, to

burglary, aggravated assault, and kidnapping (the 2011 case).

See PCRA Court Opinion, 6/8/23, at 1. In later proceedings,

Appellant claimed that the Commonwealth improperly induced this

guilty plea [in the 2011 case] by threatening to seek a mandatory

sentence based on his prior conviction at No. 3936.3[, 2]

3 Section 9714 of the Sentencing Code governs sentences

for second and subsequent offenses of designated “crimes

____________________________________________

1 The statute defining burglary has separate provisions pertaining to the

burglary of a structure “adapted for overnight accommodations” where “any

person is present[,]” and where “at the time of the offense no person is

present[.]” See 18 Pa.C.S. § 3502(a)(1), (a)(2). Here, the docket states

Appellant pled guilty to burglary under 18 Pa.C.S. § 3502(c)(1), which sets

forth the grading of his offense is “a felony of the first degree.” 18 Pa.C.S. §

3502(c)(1). There was no indication at the plea proceeding whether Appellant

was pleading guilty to burglary under Section 3502(a)(1) (person present) or

(a)(2) (no person present). We note, however, the criminal information

states, under Appellant’s burglary charge, “no person was present….”

Criminal Information, 5/1/09, at 1. Additionally, the Guideline Sentence Form

sets forth Appellant’s charge as “Burglary — Home: No One Present.” See

Guideline Sentence Form, 5/1/09, at 1.

2 Specifically, in a Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546,

petition filed in Appellant’s 2011 case, he argued his plea counsel was

“ineffective … in advising Appellant to accept the Commonwealth’s plea offer

in order to avoid the mandatory sentencing provisions of 42 Pa.C.S. §

9714(a)(1) when Appellant did not qualify for said mandatory sentences,

resulting in an unknowing plea and manifest injustice[.]” Commonwealth v.

Cook, 325 A.3d 1275, 1279 (Pa. Super. 2024). The PCRA court denied

Appellant’s petition. Id. On appeal, this Court vacated the court’s order,

concluding Appellant had been denied his right to counsel in litigating his first

PCRA petition. Id. at 1281. We remanded for the appointment of new counsel

and an evidentiary hearing. Id. The public docket shows that on remand, the

PCRA court once again denied Appellant’s petition. He filed a timely appeal,

which is currently pending before this Court at docket number 345 WDA 2026.

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of violence.” 42 Pa.C.S.[] § 9714(a). The version of Section

9714(g) (defining “crime of violence”) in effect through

September 2011 included “burglary of a structure adapted

for overnight accommodation in which at the time of the

offense any person is present.” 42 Pa.C.S.[] § 9714(g)

(emphasis added).

On July 25, 2022, at No. 3936, Appellant filed a pro se “Motion for

Specific Performance of Plea Agreement.” Appellant averred the

Commonwealth had “violated the terms of the plea agreement …

by disregarding the fact that [Appellant] plead [sic] guilty upon

agreement to a specific charge, burglary of a home with no

person present.” Motion for Specific Performance, 7/25/22, [at]

¶ 11 (emphasis added[;] some capitalization altered). Appellant

sought “specific performance” of the plea agreement by obtaining

“an official verification by the Commonwealth that it accepted

[Appellant’s] guilty plea to the charge of burglary of a home with

no person present….” Id.[] [at] ¶ 12.4 Importantly, for purposes

of the 2011 case, such a clarification would preclude application

of a mandatory sentence … based upon his conviction of a prior

“crime of violence.”

4 A transcript of the guilty plea proceeding was included in

the certified record; however, no written plea colloquy

appears of record.

The … court construed Appellant’s motion for specific performance

as a petition filed pursuant to the PCRA. The PCRA court

appointed counsel and granted Appellant leave to file an amended

petition within 90 days. PCRA Order, 10/20/22. On December

28, 2022, appointed counsel Suzanne Swan, Esquire (Counsel),

filed a motion to withdraw and a no-merit letter pursuant to

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

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

banc).

In her motion, Counsel concluded Appellant [was] not entitled to

relief under contract law principles, “because he did[,] in fact,

receive the benefit of his bargain through the specific performance

of the terms of the plea agreement.” Motion to Withdraw as

Counsel, 12/28/22, at ¶ 4. She further opined that Appellant

[was] not entitled to relief under the PCRA, “because he is no

longer serving a sentence.” Id. at ¶ 5. On January 11, 2023, the

PCRA court granted Counsel’s motion to withdraw and issued [a]

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Pa.R.Crim.P. 907 notice of its intention to dismiss Appellant’s

PCRA petition without a hearing.5

5 The [PCRA] court’s notice summarily concluded “[t]he

claims set forth in the [p]etition are without merit.” Notice

of Intention to Dismiss, 1/11/23, at 1 (unpaginated).

On February 1, 2023, Appellant simultaneously filed pro se

“Objections to Rule 907 Notice” and a “Motion for Leave to Amend

PCRA Petition.” He asserted Counsel failed to meaningfully consult

with him concerning his argument that the PCRA court improperly

construed his motion as a PCRA petition. Further, Appellant

claimed the factual allegations in the 2011 case alerted him to the

breach of the terms of his plea agreement at No. 3936.

***

On February 2, 2023, the PCRA court denied Appellant’s request

to amend his PCRA petition and formally dismissed the petition.

Appellant filed a timely[,] pro se notice of appeal.

Commonwealth v. Cook, No. 239 WDA 2023, unpublished memorandum at

1-5 (Pa. Super. filed Feb. 6, 2024) (one footnote omitted).

Ultimately, this Court in Cook vacated the PCRA court’s order denying

Appellant’s petition. Id. at 10. We remanded his case for the court to appoint

new counsel to address Appellant’s claims Attorney Swan acted ineffectively

and “whether Appellant’s claim for specific performance fall[s] within the

ambit of the PCRA.” Id.

On remand, the court appointed Lisle T. Weaver, Esquire, to represent

Appellant. On August 29, 2024, Attorney Weaver filed a motion to withdraw

and a Turner/Finley no-merit letter. Therein, Attorney Weaver concluded

Appellant’s motion for specific performance of his plea agreement was not

“governed by” the PCRA. No-Merit Letter, 8/29/24, at 4 (relying on, inter alia,

Commonwealth v. Kerns, 220 A.3d 607, 611-12 (Pa. Super. 2019) (“[A]

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collateral petition to enforce a plea agreement is regularly treated as outside

the ambit of the PCRA and under the contractual enforcement theory of

specific performance.”)). However, Attorney Weaver determined Appellant’s

motion “lacks merit” for the reasons set forth by Attorney Swan, i.e.,

“[e]verything that was bargained for and agreed to within the parameters of

the plea agreement at the instant case was honored[,]” and “there is nothing

in the record that demonstrates there was an agreement that the

Commonwealth would not consider the [b]urglary conviction to not be a crime

of violence” in future, unrelated cases. Id. Attorney Weaver also reasoned

that, because Appellant’s “ultimate goal” is to have his guilty plea withdrawn

in his 2011 case, he must seek that relief via filings at that docket, not in the

instant case. See id. at 4-5. Finally, Attorney Weaver concluded Appellant’s

assertions of Attorney Swan’s ineffectiveness were either moot, time-barred

due to the expiration of his sentence in 2010, and/or meritless. See id. at 5.3

Appellant filed pro se objections to Attorney Weaver’s petition to

withdraw, but on April 29, 2025, the court issued an order dismissing his PCRA

petition raising ineffectiveness claims, and denying his motion for specific

performance. The order also granted Attorney Weaver’s motion to withdraw.

____________________________________________

3 We need not delve into the specifics of Attorney Weaver’s conclusions

regarding Attorney Swan’s effectiveness, as Appellant has abandoned his

claims that Attorney Swan acted ineffectively on appeal. See Appellant’s Brief

at 11 (“Appellant will not waste more time seeking effective counsel in this

matter…. Appellant will only discuss prior appointed counsel’s ineffectiveness

as a means of supporting his argument for specific performance of his plea

agreement made herein and the lower court’s error in denying such.”)

(internal citation omitted).

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Appellant filed a timely, pro se notice of appeal. He and the court thereafter

complied with Pa.R.A.P. 1925. Herein, Appellant raises one issue for our

review: “Did the [trial] court err in denying Appellant’s Motion for Specific

Performance of Plea Agreement?” Appellant’s Brief at 2.

As set forth above, a petition to enforce a plea agreement is not

subsumed by the PCRA, but is treated “under the contractual enforcement

theory of specific performance.” Kerns, 220 A.3d at 611-12 (citations

omitted). “Contract interpretation is a question of law, so our standard of

review over questions of law is de novo and to the extent necessary, the scope

of our review is plenary.” Id. at 612 (cleaned up).

Here, Appellant argues “he has not received the full benefit of his

bargain … as part of [his] negotiated plea agreement” because he agreed to

“plead guilty to burglary with the factual scenario, or underlying facts, being

that no person was present.” Appellant’s Brief at 12 (emphasis omitted).

According to Appellant, the Commonwealth violated his plea agreement by

claiming, in his 2011 case, that a person was present during his instant

burglary offense and, thus, his conviction qualifies as ‘first strike’ crime of

violence under the mandatory sentencing provisions of 42 Pa.C.S. §

9714(a)(1). Id. Appellant argues the Commonwealth then used its invocation

of Section 9714(a)(1) as “leverage” to induce Appellant to enter a guilty plea

in the 2011 case. Id. See also Cook, 325 A.3d at 1276 (noting in Appellant’s

2011 case, he entered a guilty plea in exchange for the Commonwealth’s

withdrawing a robbery charge and “agree[ing] that it would not seek the

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imposition of a mandatory ‘second[-]strike’ sentence”). Thus, Appellant

insists the Commonwealth violated “the core agreement made herein that no

person was present during Appellant’s burglary offense….” Appellant’s Brief

at 12.

Notably, Appellant recognizes “that the majority of the detriment

associated with the violation of his plea agreement herein … occurred during

the proceedings [in his 2011 case] and that this … Court cannot afford him

direct relief” in that case. Id. at 39. However, he requests we render several

“clarifications[,]” which he can then use to seek relief in his 2011 case “via

collateral proceedings.” Id. Namely, Appellant asks us to announce the

following:

1.) Recognition that the terms of the plea agreement made herein

… were that the parties agreed … Appellant would plead guilty to

burglary and the underlying facts … were that it was burglary of a

home where no person was present;

2.) That the Commonwealth has since violated this agreement by

stating … a person was present during Appellant’s burglary offense

herein … and/or by stating … said offense herein could be

considered a “crime of violence” as defined by 42 Pa.C.S. §

9714(g);

3.) That the Commonwealth is barred from arguing or stating … a

person was present during the burglary offense herein … in the

future, even in subsequent or unrelated proceedings, so as to

prevent another violation of the plea agreement;

4.) That pursuant to the plea agreement made herein to burglary

of a home where no person was present, this conviction … could

never be considered a “crime of violence” as defined under the

version of 42 Pa.C.S. § 9714(g) in effect prior to its amendment

in 2012. Specifically, that it could not be considered as “burglary

of a structure adapted for overnight accommodations in which at

the time of the offense any person is present[,”] as such a

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determination would violate the parties[’] agreement that no

person was present and rob Appellant of the benefit of his bargain.

Id. at 39-40.

In response to Appellant’s arguments, the Commonwealth offers various

grounds for rejecting his request for relief. First, it contends Appellant “waited

an unreasonably long time to bring this claim.” Commonwealth’s Brief at 10

(emphasis omitted). It explains:

Although a plea agreement occurs in a criminal context, it remains

contractual in nature and is to be analyzed under contract law

standards. Com[monwealth] v. Fernandez, 195 A.3d 299, 308

(Pa. Super. 2018). Breach of contract actions are generally

governed by a four-year statute of limitations, unless another

specific statute of limitations applies in a given circumstance.

See, e.g., McGaffic v. City of New Castle, 973 A.2d 1047, 1052

(Pa. [Cmwlth.] 2009) [(]citing 42 Pa.C.S. § 5525[)].[4]

Adopting the ordinary contract law statute of limitations to this

claim would comport with the general principle that motions to

enforce plea agreements are governed by contract law. Here,

[A]ppellant had actual knowledge of the purported “breach” of his

plea agreement on February 1, 2011. He sat on his rights for over

a decade, or until July 25, 2022. Therefore, this Court should hold

that this claim is barred by the ordinary four-year statute of

limitations governing breach of contract claims.

Id. at 10-11.

Second, the Commonwealth argues Appellant “waived this claim by his

own conduct.” Id. at 11. It insists that,

____________________________________________

4 “This Court is not bound by the decisions of the Commonwealth Court.

However, such decisions provide persuasive authority, and we may turn to

our colleagues on the Commonwealth Court for guidance when appropriate.”

Petow v. Warehime, 996 A.2d 1083, 1089 n.1 (Pa. Super. 2010) (citations

omitted).

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[b]y failing to challenge the prosecutor’s invocation of the

mandatory minimum [in the 2011] case, then pleading guilty,

[Appellant] acted to acquiesce to the breach as commonly

understood in contract law. In a contract case, “waiver may be

established by a party’s express declaration or by a party’s

undisputed acts […] so inconsistent with a purpose to

stand on the contract provisions as to leave no opportunity for

a reasonable inference to the contrary.” Prime Medica Assocs.

v. Valley Forge Ins. Co., 970 A.2d 1149, 1156–57 (Pa. Super.

2009) (emphasis added).

Here, the Commonwealth submits that, by choosing not to

challenge the prosecutor’s “breach” of the plea agreement in

2011, and instead simply acquiescing to that “breach” and

pleading guilty, [A]ppellant was acting “so inconsistent[ly] with a

purpose to stand on the” provisions of the plea agreement that he

was acquiescing to the breach and waiving his right to enforce the

plea agreement in this instance.

Id. at 11-12.

Third, the Commonwealth concludes “Appellant has received the benefit

of his plea bargain in this case.” Id. at 12 (emphasis omitted). It explains:

[T]he agreement was that [A]ppellant would plead guilty to count

one—burglary, and the Commonwealth would withdraw counts

two and three. There was no agreement as to sentence and there

was no restitution. Finally, [A]ppellant was ordered to have no

contact with the victims.

Appellant received the benefit of his bargain. He did indeed plead

guilty to count one, and counts two and three were indeed

withdrawn. There was indeed no agreed-upon sentence to

present to the court for its consideration. There was simply no

express or implied term of the deal stating that the

Commonwealth was binding itself in the future not to invoke the

mandatory minimum statute using this conviction.

Id. at 13-14.

For its part, the trial court concurred with Attorney Swan’s and Attorney

Weaver’s conclusions in their Turner/Finley no-merit letters “that Appellant

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received the full benefit of the bargain in exchange for his plea to the

[b]urglary charge.” Trial Court Opinion, 7/30/25, at 4. The court also agreed

the record did not support “Appellant’s assertion … it was part of the plea

agreement that the [b]urglary would not be considered a crime of violence….”

Id. Thus, the court found Appellant’s motion for specific performance of his

plea agreement “lacked merit.” Id.

We agree with the court and the Commonwealth that no relief is due.

After carefully reviewing the record, it is clear the express terms of

Appellant’s plea agreement were fully honored in this case. As the

Commonwealth points out, in stating the terms of the plea agreement, the

Commonwealth declared Appellant would plead “guilty to one count of

burglary, a felony … in the first degree, and the Commonwealth [would]

mov[e] to withdraw all other counts….” N.T., 8/20/09, at 2. There also was

“no agreement as to sentence” and “no restitution….” Id. It was agreed that

a no-contact order would be entered between Appellant and the victim. Id.

at 3. Appellant does not dispute that these terms were upheld, and the record

confirms they were.

At no point during the plea proceeding was there any mention of

Appellant’s burglary charge being construed as “no person present[,]” let

alone any promise or agreement by the Commonwealth that it would consider

his charge as “no person present” in any future proceedings. Indeed, the

Commonwealth’s recitation of the facts of this case indicate a person was

present during Appellant’s burglary. See id. at 6 (stating Appellant “entered

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the victim’s residence[,]” after which “[s]he came in, found [Appellant] in her

residence, and he promptly fled with her laptop computer, DVD collection, two

prescription medications, and a bottle of vodka”). Notably, Appellant’s

counsel indicated he had “no additions or corrections to the summary.” Id.

at 7.

Based on this record, we conclude there was no explicit agreement that

Appellant’s burglary offense would be considered as “no person present,” or

that the Commonwealth would never characterize this offense as a crime of

violence in future cases for purposes of seeking application of a mandatory-

minimum sentence under Section 9714(a)(1). To the extent there was any

implied agreement in this regard, the time and place for Appellant to argue

this fact was during the plea proceedings in his 2011 case when the

Commonwealth sought application of Section 9714(a)(1). However, Appellant

did not raise any such claim in his 2011 plea proceeding. He also did not file

any post-sentence motion to withdraw his 2011 plea or direct appeal arguing

Section 9714(a)(1) did not apply or that his plea was unlawfully induced.

Instead, he entered his guilty plea in the 2011 case, and then waited

another decade to improperly assert his claim for relief in this case, when the

actual relief he seeks is withdrawing his guilty plea in the 2011 case. Although

Appellant acknowledges we cannot afford him the relief he ultimately seeks

(i.e., invalidating his 2011 guilty plea), he asks us to issue ‘clarifications’

regarding his instant plea, which he can then utilize in post-conviction

proceedings in the 2011 case.

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However, even if we declared Appellant’s instant guilty plea included an

implied agreement that no person was present in the home he burglarized,

Appellant could not use this declaration to obtain PCRA relief in his 2011 case.

Appellant’s judgment of sentence became final on March 3, 2011. See Cook,

325 A.3d at 1277. Thus, any PCRA petition he would file would be untimely,

unless he met a timeliness exception. See 42 Pa.C.S. § 9545(b)(1) (stating

“[a]ny petition under this subchapter, including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes final,

unless the petition alleges and the petitioner proves” the applicability of a

timeliness exception). Presumably, Appellant would plead the newly-

discovered-fact exception based on ‘clarifications’ issued by this Court herein.

However, the newly-discovered-fact exception “requires that the ‘facts’ upon

which the petitioner’s claim is predicated were ‘unknown to the petitioner and

could not have been ascertained by the exercise of due diligence.’”

Commonwealth v. Small, 238 A.3d 1267, 1283 (Pa. 2020) (quoting 42

Pa.C.S. § 9545(b)(1)(ii)). Here, Appellant insists his instant plea, entered in

2009, clearly encompassed an agreement that a person was not present in

the home he burglarized, and the Commonwealth violated this agreement

when he pled guilty in 2011. In other words, Appellant admits he was aware

in 2009 of this alleged term of his plea agreement, and he knew in 2011 the

Commonwealth purportedly violated it. Consequently, any pronouncement by

this Court would simply be a new source of a previously known fact, which is

insufficient to satisfy the newly-discovered-fact exception. See

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Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008) (“The focus of

the exception is on the newly discovered facts, not on a newly discovered or

newly willing source for previously known facts” (emphasis in original;

brackets and internal quotation marks omitted)). See also Commonwealth

v. Rivera, 324 A.3d 452, 468 (Pa. 2024) (“Thus, while recently discovered

evidence may reveal new facts, or even itself establish a new fact in some

situations, whether a petitioner meets the requirements of the newly

discovered facts exception ultimately turns on the petitioner’s knowledge of

previously unknown facts, not new evidence of a known fact, related to his

claim.”) (footnote omitted).

Thus, Appellant has failed to demonstrate he is entitled to relief in the

instant case. The explicit terms of his plea agreement in this case were

upheld. Even if there was a violation of an implied term of his agreement, it

would have occurred when he pled guilty in 2011. However, Appellant never

raised any challenge to the Commonwealth’s position in 2011 that his instant

burglary offense constituted a crime of violence. As such, he cannot now

claim, over a decade later, that his instant plea agreement was violated so he

can ultimately seek relief in his 2011 case.

Order affirmed.

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6/2/2026

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