J-S26045-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CODY D. WUNDER
Appellant No. 1664 MDA 2014
Appeal from the PCRA Order September 25, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0004643-2012
BEFORE: OTT, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED MAY 01, 2015
Appellant Cody Wunder appeals from an order dismissing his petition
for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et
seq. We affirm.
Appellant, along with codefendants Kyle Wunder (appellant’s brother)
and Stephen Harmer, broke into Douglas Herr’s residence in order to steal
the contents of a safe. Appellant and Kyle Wunder knew that Herr kept
large sums of cash at the residence. Harmer drove appellant and Kyle
Wunder to Herr’s residence and waited nearby in a vehicle while the brothers
entered the residence. Kyle Wunder shot and killed Herr during the break-
in. Appellant and Kyle Wunder stole cash from the safe and split the cash
with Harmer.
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Subsequently, appellant and Kyle Wunder were arrested and charged
with homicide1 and related offenses. On July 12, 2013, appellant pled guilty
to second degree murder, robbery,2 conspiracy to commit robbery,3
burglary4 and conspiracy to commit burglary.5 On August 15, 2013, the trial
court sentenced appellant to life imprisonment without parole for second
degree murder and a concurrent term of 10-20 years’ imprisonment for
conspiracy to commit robbery. The sentences on the remaining charges
merged for purposes of sentencing.
On May 23, 2014, appellant filed a timely PCRA petition. The court
appointed PCRA counsel, who filed an amended PCRA petition. On August
13, 2014, the PCRA court filed a notice of intent to dismiss the PCRA petition
without a hearing. On September 24, 2014, the PCRA court dismissed the
petition. Through counsel, appellant filed a timely notice of appeal. Both
appellant and the PCRA court complied with Pa.R.A.P. 1925.
Appellant raises a single issue in this appeal:
____________________________________________
1
18 Pa.C.S. § 2502.
2
18 Pa.C.S. § 3701.
3
18 Pa.C.S. § 903.
4
18 Pa.C.S. § 3502.
5
18 Pa.C.S. § 903.
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Whether the lower court erred in denying
[appellant’s] amended PCRA [petition] without
holding a hearing[,] when counsel was ineffective by
permitting [appellant] to plead guilty to second
degree murder as part of a package plea agreement
where the Commonwealth agreed not to seek the
death penalty for his brother and codefendant, Kyle
Wunder?
Brief for Appellant, p. 4.
Our standard and scope of review are well-settled:
We review an order dismissing a petition under the
PCRA in the light most favorable to the prevailing
party at the PCRA level. This review is limited to the
findings of the PCRA court and the evidence of
record. We will not disturb a PCRA court’s ruling if it
is supported by evidence of record and is free of
legal error. This Court may affirm a PCRA court’s
decision on any grounds if the record supports it. We
grant great deference to the factual findings of the
PCRA court and will not disturb those findings unless
they have no support in the record. However, we
afford no such deference to its legal conclusions.
Further, where the petitioner raises questions of law,
our standard of review is de novo and our scope of
review is plenary.
Commonwealth v. Rykard, 55 A.3d 1177, 1183–84 (Pa.Super.2012).
When a petitioner alleges ineffective assistance of counsel,
he must prove by a preponderance of the evidence
that his conviction or sentence resulted from
ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined
the truth-determining process that no reliable
adjudication of guilt or innocence could have taken
place. We have interpreted this provision in the
PCRA to mean that the petitioner must show: (1)
that his claim of counsel’s ineffectiveness has merit;
(2) that counsel had no reasonable strategic basis
for his action or inaction; and (3) that the error of
counsel prejudiced the petitioner - i.e., that there is
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a reasonable probability that, but for the error of
counsel, the outcome of the proceeding would have
been different. We presume that counsel is
effective, and it is the burden of Appellant to show
otherwise.
Commonwealth v. DuPont, 860 A.2d 525, 531 (Pa.Super.2004), appeal
denied, 889 A.2d 87 (Pa.2005), cert. denied, 547 U.S. 1129, 126 S.Ct 2029,
164 L.Ed.2d 782 (2006) (internal citations and quotations omitted). The
petitioner bears the burden of proving all three prongs of this test.
Commonwealth v. Meadows, 787 A.2d 312, 319-320 (Pa.2001). “If an
appellant fails to prove by a preponderance of the evidence any of the[se]
prongs, the Court need not address the remaining prongs of the test.”
Commonwealth v. Fitzgerald, 979 A.2d 908, 911 (Pa.Super.2009), appeal
denied, 990 A.2d 727 (2010) (citation omitted).
In his lone argument, appellant contends that trial counsel was
ineffective for permitting him to enter a guilty plea involuntarily. Appellant
insists that he was coerced into pleading guilty due to the Commonwealth’s
threat to pursue the death penalty against his brother, Kyle Wunder, if
Appellant proceeded to trial.
“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.” Commonwealth v.
Hickman, 799 A.2d 136, 141 (Pa.Super.2002) (citing Commonwealth v.
Allen, 557 Pa. 135, 732 A.2d 582 (1999)). Whether a plea is voluntary
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“depends on whether counsel’s advice was within the range of competence
demanded of attorneys in criminal cases.” Commonwealth v. Lynch, 820
A.2d 728, 733 (Pa.Super.2003), appeal denied, 835 A.2d 709 (Pa.2003)
(quoting Hickman, 799 A.2d at 141). “[T]he law does not require that [the
defendant] be pleased with the outcome of his decision to enter a plea of
guilty: All that is required is that [his] decision to plead guilty be knowingly,
voluntarily, and intelligently made.” Commonwealth v. Willis, 68 A.3d
997, 1001 (Pa.Super.2013) (quoting Commonwealth v. Anderson, 995
A.2d 1184, 1192 (Pa.Super.2010) (alterations in original)). A guilty plea
colloquy must “affirmatively demonstrate the defendant understood what the
plea connoted and its consequences.” Id. at 1002 (quoting Commonwealth
v. Lewis, 708 A.2d 497, 501 (Pa.Super.1998)). After a defendant enters a
guilty plea, “it is presumed that he was aware of what he was doing, and the
burden of proving involuntariness is upon him.” Id. (quoting
Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa.Super.2008)).
Courts must deem a guilty plea involuntary "if the accused was
innocent but pled guilty solely to eliminate the possibility of another's
jeopardy." Commonwealth v. DuPree, 275 A.2d 326, 327 (Pa.1971)
(emphasis added). The proper inquiry, DuPree held, is "whether [the]
appellant primarily entered his guilty plea [to eliminate the possibility of
another's jeopardy] or whether it was only one of many considerations." Id.
at 328.
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Based on our review of the record, we agree with the PCRA court that
appellant’s claim lacks arguable merit. During appellant’s guilty plea, the
court informed appellant of the nature of the charges, and appellant stated
that he understood each of the charges. N.T., 7/12/13, at 8-11. The court
asked the Assistant District Attorney (“ADA”) to read the factual basis for the
plea, and the ADA stated the factual basis. Id. at 11-13. Appellant stated
that he understood the factual basis and that he did not disagree with these
facts. Id. at 13-14. The court informed appellant of the maximum ranges
of each of the charges. Id. at 14-16. Appellant stated he understood. Id.
The court inquired into the guilty plea colloquy, asking appellant if he signed
the line above his name as well as if he understood the rights contained
therein. Id. at 16-17. Appellant stated he understood these rights and did
not have any questions. Id. The court informed appellant of his right to a
jury trial. Id. at 17-18. Appellant stated he understood. Id. The court
informed appellant that he is presumed innocent, and it would be the
Commonwealth’s burden to prove his guilt beyond a reasonable doubt. Id.,
p. 17. Appellant stated he understood. Id. The court asked appellant if
anyone had promised him anything, threatened him, or coerced him in any
way. Id., p. 18. Appellant stated “no.” Id.
Additionally, at sentencing on August 15, 2013, the ADA stated that
appellant provided a detailed statement of all participants’ involvement in
the homicide, and that his cooperation and testimony was critical in the
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successful prosecution of Stephen Harmer. N.T., 8/15/13, p. 6. The court
asked appellant if he had anything that he wished to say. Id. at 8.
Appellant answered “no.” Id. Furthermore, appellant was present while his
co-defendant and brother, Kyle Wunder, was sentenced. The ADA stated
that Kyle had provided a detailed statement of all participants’ involvement
in the homicide, and that his cooperation led to appellant’s statement. Id.
at 12. The ADA noted that Kyle took full responsibility for his role and
provided a sequence of events surrounding the shooting of Douglas Herr, the
disposal of the shotgun, and an accounting of his proceeds from the robbery.
Id. at 12-13. The ADA stated that in exchange for Kyle Wunder’s guilty
plea, the Commonwealth would not be seeking the imposition of the death
penalty. Id. at 13.
Based on our review of the record, we conclude that appellant
knowingly, voluntarily and intelligently entered into his guilty plea. He told
the court that nobody forced him to plead guilty, that he understood the
charges against him, and that he understood the permissible range of
sentences for all charges. Moreover, as the Commonwealth noted at
sentencing, appellant voluntarily provided a statement that inculpated
himself as well as his brother and Harmer. The record leaves no doubt as to
the validity of his guilty plea.
The record also demonstrates that appellant did not plead guilty
primarily to save his brother from prosecution or from the death penalty.
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While helping his brother might have factored into appellant's decision,
appellant's primary motivation for pleading guilty was because of
overwhelming evidence of his guilt arising from his brother's comprehensive
confession and his own confession relating to the murder. No realistic
alternative existed for appellant other than to plead guilty and accept the
negotiated penalty. Unlike DuPree, this is not a case where an innocent
defendant pled guilty simply to avoid subjecting a beloved relative to
prosecution. Nothing in the record indicates that appellant pled guilty under
circumstances that render his plea involuntary.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/1/2015
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