The opinion
J-S47039-20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KYAIRE THOMPSON-BROWN, :
:
Appellant : No. 735 MDA 2020
Appeal from the PCRA Order Entered April 17, 2020
in the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0006552-2017
BEFORE: STABILE, J., NICHOLS, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 12, 2021
Kyaire Thompson-Brown (Appellant) appeals from the April 17, 2020
order dismissing his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we affirm.
The PCRA court provided the following background.
On September 7, 2015, at 2:46 a.m., police officers were
dispatched to South Marshall Street in Lancaster City for a report
of shots fired, at which time they located Edward Cameron
suffering from multiple gunshot wounds. Cameron was later
pronounced deceased. Through investigation, it was determined
that Rahdir Maxton, Niziere Dean [], and Appellant opened fire
on Cameron at close range, resulting in [Cameron’s] death. On
October 5, 2017, charges of criminal homicide and conspiracy to
commit homicide were filed against Appellant.
On February 22, 2019, Appellant and Dean appeared
before the court to plead guilty pursuant to negotiated plea
agreements. In exchange for the Commonwealth not seeking
first-degree murder convictions, Appellant and Dean each
pleaded guilty to third-degree murder and conspiracy to commit
third-degree murder, for concurrent sentences of 15-30 years
*Retired Senior Judge assigned to the Superior Court.
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[of] incarceration on each count. Appellant’s sentence for third-
degree murder was within the standard range of the sentencing
guidelines. No post-sentence motion or direct appeal was filed.
PCRA Court Opinion, 7/13/2020, at 1-2 (citations and footnote omitted).
On October 28, 2019, Appellant timely filed pro se a PCRA petition, his
first, which he styled as an amended petition. Appellant argued, inter alia,
that trial counsel was ineffective for failing to file a decertification motion
and for failing to investigate the case before advising Appellant to plead
guilty.1 PCRA counsel was appointed. On February 28, 2020, PCRA counsel
filed a petition to withdraw and 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). On March 12, 2020, the PCRA court
issued notice of its intent to dismiss Appellant’s petition without a hearing
1 By way of background, Appellant was 16 at the time of shooting, but 18 at
the time of his arrest. His case went directly to the criminal division.
When a case goes directly to the criminal division[,] the juvenile
has the option of requesting treatment within the juvenile
system through the transfer process of decertification. In
determining whether to transfer such a case from the criminal
division to the juvenile division, “the child shall be required to
establish by a preponderance of the evidence that the transfer
will serve the public interest.” 42 Pa.C.S. § 6322(a).
Pursuant to § 6322(a), the decertification court must consider
the factors contained in § 6355(a)(4)(iii) in determining whether
the child has established that the transfer will serve the public
interest.
Commonwealth v. Ruffin, 10 A.3d 336, 338 (Pa. Super. 2010) (some
citations omitted).
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pursuant to Pa.R.Crim.P. 907. Appellant filed a response, raising a new claim
that he did not know he was pleading guilty to third-degree murder. On April
15, 2020, the PCRA court denied Appellant’s PCRA petition and granted
PCRA counsel’s request to withdraw.
This timely-filed appeal followed.2 On appeal, Appellant argues that the
PCRA court erred in dismissing several of his ineffective assistance of trial
counsel claims. Appellant’s Brief at 5.3 Specifically, Appellant argues five
2 Appellant pro se filed the instant notice of appeal. Thereafter, Appellant
retained private counsel. Both Appellant and the PCRA court complied with
Pa.R.A.P. 1925.
3 Appellant also argues the ineffective assistance of PCRA counsel, which he
raised for the first time in his concise statement. “[C]laims of PCRA counsel
ineffectiveness cannot be raised for the first time after a notice of appeal has
been taken from the underlying PCRA matter.” Commonwealth v. Smith,
121 A.3d 1049, 1054 (Pa. Super. 2015) (citation and quotation marks
omitted). Appellant implores us not to find waiver because Appellant pro se
filed his response to the PCRA court’s Rule 907 notice. Appellant’s Brief at
45-46. However, our case law makes clear that pro se petitioners are not
exempt from our waiver rules.
[O]ur Supreme Court [] requires counseled PCRA petitioners to
raise allegations of PCRA counsel’s ineffectiveness in response to
a Rule 907 notice of intent to dismiss, or risk
waiver. See Commonwealth v. Pitts, 981 A.2d 875, 880 n.4
(Pa. 2009). In Pitts, the defendant raised allegations of PCRA
counsel’s ineffectiveness for the first time in a pro se appeal. A
majority of our High Court determined that Pitts had waived
these claims because he did not raise these assertions in
response to, inter alia, the PCRA court’s Rule 907 notice. Id.
Our Supreme Court explicitly rejected Pitts’ argument that hybrid
representation prevented him from raising these objections
during the PCRA proceedings, and while he was still represented
by counsel:
(Footnote Continued Next Page)
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claims of ineffective assistance of counsel for failing to: (1) investigate the
case fully before advising Appellant to plead guilty; (2) explain the plea
agreement and minimum punishment Appellant faced; (3) explain that
accepting a “global plea deal” meant receiving the same sentence as his
adult co-defendant; (4) file a decertification motion or advise Appellant fully
(Footnote Continued) _______________________
Although Pitts asserts his PCRA appeal was the first
opportunity he had to challenge PCRA counsel’s
stewardship because he was no longer represented
by PCRA counsel, he could have challenged PCRA
counsel’s stewardship after receiving counsel’s
withdrawal letter [] and the notice of the PCRA
court’s intent to dismiss his petition pursuant to
Pa.R.Crim.P. 907, yet he failed to do so. Thus, the
issue of whether PCRA counsel was ineffective for
failing to raise the direct appeal issue was waived[.]
Id. Subsequent interpretation of Pitts by both the Supreme
Court and this Court have reaffirmed this aspect of the holding.
Commonwealth v. Betts, 240 A.3d 616, 622 (Pa. Super. 2020) (citation
format altered; some citations omitted). Because Appellant failed to assert
the ineffective assistance of PCRA counsel in his response to the PCRA
court’s Rule 907 notice, this issue is waived.
Appellant has also waived his issue claiming that the PCRA court erred
in dismissing his petition without a hearing. Insofar as Appellant argues the
PCRA court erred in dismissing his ineffective assistance of trial counsel
claims without a hearing, he failed to raise this claim in his court-ordered
concise statement. See Pa.R.A.P. 1925(b)(4)(vii). Thus, it is waived. In his
concise statement, Appellant alleged that the PCRA court erred in dismissing
his PCRA petition without a hearing because PCRA counsel provided
ineffective assistance and did not request an evidentiary hearing. Concise
Statement, 5/27/2020, at ¶ 3; see also Appellant’s Brief at 55-57. As
discussed supra, Appellant did not raise PCRA counsel’s ineffectiveness in his
response to the PCRA court’s Rule 907 notice. Thus, the issue he purported
to preserve in his concise statement is also waived.
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of his right to pursue decertification; and (5) request a developmental
assessment of Appellant to determine whether he understood the nature and
consequences of his decisions not to pursue decertification and to plead
guilty. Appellant’s Brief at 13-14, 20, 24, 29, 40.
Preliminarily, Appellant failed to raise his second and third claims until
his Rule 907 response.4
We have previously discussed that a response to a notice of
intent to dismiss is not, itself, considered a serial petition.
In Commonwealth v. Williams, 732 A.2d 1167 (Pa. 1999), the
Court reasoned that the raising of a new (non-PCRA counsel
ineffectiveness) claim after the PCRA court issued a notice of
dismissal still requires a PCRA court to grant the petitioner leave
to amend his petition. Notably, the Court opined, “The assertion
of a new claim after the court has heard argument and indicated
its intent to dismiss the petition militates in favor of the decision
to deny leave to amend.” Id. at 1191.
While [Rykard] was explicitly instructed that he could respond,
and by law is authorized to file a response to the court’s pre-
dismissal notice, both Williams and Pa.R.Crim.P. 905, suggest
that in order to properly aver a new non-PCRA counsel
ineffectiveness claim, the petitioner must seek leave to amend
his petition. Having not sought permission to amend his petition
to raise these new claims, the PCRA court was not required to
address the issues and it did not. Hence, [Rykard’s] final
two claims do not entitle him to relief.
Commonwealth v. Rykard, 55 A.3d 1177, 1192 (Pa. Super. 2012)
(citation format altered; some citations omitted).
4 The global plea offer claim argued on appeal is distinct from the claim
raised in Appellant’s pro se PCRA petition. See Pro se PCRA Petition,
10/28/2019, at 3 (“Counsel was ineffective for the coerced global plea,
directed by his co[-]defendant’s counsel.”).
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Appellant did not seek permission to amend his petition to add these
claims. Nonetheless, the PCRA court addressed the second claim. Thus, we
will reach the merits of that claim. See id. However, because Appellant did
not seek leave to amend his petition to raise his third claim, and the PCRA
court did not address it, we likewise do not reach it. See id. As to
Appellant’s fifth claim, he raised that for the first time in his concise
statement. Accordingly, it is waived. See Commonwealth v. Washington,
927 A.2d 586, 601 (Pa. 2007) (citations omitted) (“Any claim not raised in
the PCRA petition is waived and not cognizable on appeal.”).
Thus, we review Appellant’s first, second, and fourth claims mindful of
the following.
In reviewing the propriety of the PCRA court’s denial of a petition
for relief, we are limited to determining whether the record
supports the court’s findings, and whether the order is otherwise
free of legal error. This Court grants great deference to the
findings of the PCRA court if the record contains any support for
those findings. We give no such deference, however, to the
courts legal conclusions.
The law presumes counsel has rendered effective assistance. An
evaluation of counsel’s performance is highly deferential, and the
reasonableness of counsel’s decisions cannot be based upon the
distorting effects of hindsight. When asserting a claim of
ineffective assistance of counsel, Appellant is required to make
the following showing: (1) that the underlying claim is of
arguable merit; (2) counsel had no reasonable strategic basis for
his action or 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. The failure to satisfy
any prong of the test for ineffectiveness will cause the claim to
fail.
***
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Ineffective assistance of counsel claims arising from the plea-
bargaining process are eligible for PCRA review. Allegations 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.
Commonwealth v. Kelley, 136 A.3d 1007, 1012-13 (Pa. Super. 2016)
(citations and quotation marks omitted).
With regard to an attorney’s duty to investigate, the Supreme
Court has noted that the reasonableness of a particular
investigation depends upon evidence known to counsel, as well
as evidence that would cause a reasonable attorney to conduct a
further investigation. With regard to the voluntariness of a plea,
a guilty plea colloquy must affirmatively demonstrate the
defendant understood what the plea connoted and its
consequences. Once the defendant has entered a guilty plea, it
is presumed that he was aware of what he was doing, and the
burden of proving involuntariness is upon him.
Commonwealth v. Willis, 68 A.3d 997, 1002 (Pa. Super. 2013) (citations
and quotation marks omitted).
In dismissing Appellant’s PCRA claims, the PCRA court offered the
following analysis.
While Appellant claims his guilty plea was unlawfully
induced by ineffective assistance of trial counsel, the record from
the guilty plea hearing clearly shows that this claim lacks merit.
Appellant admitted he was guilty, he stated he was accepting the
deal to avoid the possibility of at least 35 years [of] incarceration
if convicted of first-degree murder, and he was satisfied with
trial counsel. Appellant also stated his guilty plea was voluntary,
it was his decision to plead guilty, he made the decision of his
own free will, and no one forced, threatened or coerced him into
pleading guilty. Appellant is bound by the statements he made
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at the guilty plea hearing and may not assert grounds for
withdrawing the plea that contradict those statements. Thus,
Appellant’s claim regarding ineffective assistance and an
unlawfully induced guilty plea lacks merit.
Addressing the specific claims raised by Appellant in his
pro se motion, trial counsel was not ineffective for failing to file a
motion to transfer Appellant’s case to juvenile court because
such a motion would not have been successful. After applying
the factors listed in 42 Pa.C.S. § 6355, the court agrees with
PCRA counsel that the impact of Appellant’s crime on the victim
and community was severe where Appellant was one of three
individuals who murdered the victim. Appellant’s threat to public
safety was extremely high. Appellant was over 18 years old
when the charges were filed, giving him less than 3 years to
receive treatment in the juvenile system. Further, Appellant
already had a history in the juvenile system with a felony drug
adjudication. Trial counsel cannot be deemed ineffective for
failing to raise a meritless motion.
***
Trial counsel was not ineffective for failing to investigate,
interview and depose witnesses of the alleged crime. As stated
by trial counsel at the guilty plea hearing:
Your Honor, we have discussed all available
defenses. I’ve also spoken with my client about what
witnesses -- should we proceed to trial, if there were
witnesses that he would want me to call on his
behalf. He has submitted a list of witnesses to me.
This is a guilty plea, so it won’t matter, but the fact
remains that the list was supplied and that those
witnesses were subpoenable for trial if we had gone
in that direction.
[N.T., 2/22/2019, at 15]. Appellant’s assertion in this regard is
refuted by the record.
***
Appellant [] claimed in his response that he believed he
was only pleading guilty to conspiracy to commit third-degree
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murder and not third-degree murder. However, the record
clearly contradicts this claim. []
Assuming, arguendo, there is arguable merit to Appellant’s
claims, he has failed to establish that the particular course of
conduct by trial counsel lacked a reasonable basis designed to
effectuate his interests. Trial counsel negotiated a guilty plea
whereby the potential for a first-degree murder conviction and
mandatory minimum sentence of 35 years [of] incarceration
were removed from consideration. Counsel negotiated a
minimum sentence of 15 years in prison for third-degree
murder, which was five years below the top end of the standard
range of the sentencing guidelines. Counsel also negotiated
concurrent sentences on the murder and conspiracy charges.
Counsel’s advice in this case was well within the range of
competence demanded of attorneys in criminal cases.
PCRA Court Opinion, 7/13/2020, at 12-16. (some citations and footnotes
omitted).
Here, although Appellant and Dean pleaded guilty at the same
proceeding, the trial court completed a thorough oral colloquy as to each
defendant on his decision to plead guilty to third-degree murder and
conspiracy to commit third-degree murder. Each defendant also completed a
separate, written colloquy. After speaking with Appellant for several hours
on the day of the plea proceeding and going over the written colloquy, trial
counsel stated
it is absolutely my impression that he is making a knowing,
intelligent, and voluntary waiver of his rights to go to trial. [I]n
all of my conversations with [Appellant], [Appellant] has actually
been leading me in the conversation. He’s a very bright man. He
understands the discovery. He understands the process. He
understands the consequences, most importantly, of what he’s
doing here today.
N.T., 2/22/2019, at 11-12.
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Upon review, Appellant’s arguments as to his first and second claims
are refuted by the record and the answers Appellant provided at the plea
hearing. The trial court advised Appellant multiple times that he was
pleading guilty to third-degree murder and conspiracy to commit third-
degree murder, and Appellant stated that he understood that. Moreover,
Appellant has failed to establish that counsel failed to investigate Appellant’s
case. Trial was scheduled to begin approximately one week from the plea
hearing. Appellant stated he was satisfied with counsel and believed in her
ability to try the case before a jury. Appellant had provided counsel with a
list of witnesses that counsel would subpoena for trial if Appellant did not
decide to plead guilty. Nonetheless, Appellant decided to plead guilty to
avoid the possibility of receiving the mandatory minimum sentence of 35
years of incarceration if the jury convicted him of first-degree murder.
Significantly, Appellant did not identify the specific witnesses he claimed
counsel failed to investigate until his response to the PCRA court’s Rule 907
notice, and only then alleged that these witnesses “possibly had exculpatory
and impeachment information regarding” specific Commonwealth witnesses.
Response, 4/3/2020 (attached Memorandum at 18-19 (unnumbered)).
Because Appellant failed to meet his burden of establishing that the
underlying claims had merit, the PCRA court properly dismissed these
claims.
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As to Appellant’s decertification claim, the PCRA court’s evaluation of
the requisite factors is supported by the record and free of legal error. See
Commonwealth v. Ruffin, 10 A.3d 336, 338-39 (Pa. Super. 2010)
(citations omitted) (“Decisions of whether to grant decertification will not be
overturned absent a gross abuse of discretion. [] When evaluating the
propriety of a [decertification] decision, absent evidence to the contrary, a
reviewing court must presume that the juvenile court carefully considered
the entire record. No law explicitly requires juvenile courts in this
Commonwealth to provide a detailed explanation to justify a [decertification]
decision[.]”). Because Appellant failed to establish prejudice, the PCRA court
properly dismissed this claim.
Based on the foregoing, the PCRA court did not err in dismissing
Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/12/2021
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