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March 18, 2026 Get Citation Alerts Download PDF Add Note

Com. v. Barney, J.

Superior Court of Pennsylvania

• Citations: None known
• Docket Number: 154 MDA 2025
• Precedential Status: Non-Precedential

• Judges: Olson

• Opinion

• Authorities (30)

• Cited By (0)

• Summaries (0)

• Similar Cases (39.5K)

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Lead Opinion

                        by [Judith Ference Olson](https://www.courtlistener.com/person/8241/judith-ference-olson/)

J-S42013-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JERMEY HEATH BARNEY :
:
Appellant : No. 154 MDA 2025

Appeal from the PCRA Order Entered January 15, 2025
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0005676-2012

BEFORE: OLSON, J., KING, J., and LANE, J.

MEMORANDUM BY OLSON, J.: FILED: MARCH 18, 2026

Appellant, Jermey Heath Barney, appeals pro se from the January 15,

2025 order entered in the Court of Common Pleas of Lancaster County that

denied his petition filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546. We affirm.

The record demonstrates that, on April 22, 2014, a jury convicted

Appellant of rape of a child (Count 1), involuntary deviate sexual intercourse

with a child less than 13 years of age (Count 2), indecent

assault – complainant less than 13 years of age (two counts; Counts 3 and

4), criminal solicitation (Count 6), unlawful contact with a minor – sexual
J-S42013-25

offense (Count 7), and corruption of minors (Count 8).1 This Court

summarized the factual history that led to Appellant’s convictions as follows:

This matter arises from [Appellant’s] sexual abuse of his
paramour’s son, A.M. At the time the abuse occurred, A.M. was
five years old. Following a hearing on April 11, 2014, the [trial]
court permitted [Appellant] to proceed pro se.[2] On April 21,
2014, the [trial] court conducted a Tender Years Hearing.[FN9] The
[trial] court held that [two daycare providers, A.M.’s mother, and
two forensic interviewers] would be permitted to testify[, at trial,]
to statements A.M. made to them.

A jury trial took place from April 22 to 28, 2014. At the close of
trial, the jury found [Appellant] guilty of the aforementioned
offenses.

[Footnote 9:] 42 Pa.C.S.[A.] § 5985.1.

Commonwealth v. Barney, 2015 WL 7433518, at *1 (Pa. Super. filed Mar.

27, 2015) (unpublished memorandum). On August 1, 2014, the trial court

sentenced Appellant to an aggregate term of 20 to 40 years’ incarceration. In

fashioning its sentence, the trial court imposed a mandatory minimum

sentence on Appellant’s conviction for Count 2 pursuant to 42 Pa.C.S.A.

§ 9718(a)(1). See 42 Pa.C.S.A. § 9718(a)(1) (effective Jan. 1, 2007, to Aug.

17, 2014) (requiring a mandatory minimum sentence of not less than ten

---

1 18 Pa.C.S.A. §§ 3121(c), 3123(b), 3126(a)(7) (two counts), 902(a),
6318(a)(1), and 6301(a)(1), respectively. Appellant was found not guilty of
one count of indecent assault – complainant less than 13 years of age (Count
5). 18 Pa.C.S.A. § 3126(a)(7).

2 Initially, Appellantwas represented by Daniel E. Kaye, Esquire (“Attorney
Kaye”). After the trial court permitted Appellant to proceed pro se, the trial
court appointed Attorney Kaye to serve as stand-by counsel for Appellant
during the trial. N.T., 4/11/14, at 10.

-2-
J-S42013-25

years’ incarceration for a person convicted of violating Section 3123 of the

Crimes Code when the victim is under 16 years of age). This Court affirmed

Appellant’s judgment of sentence on March 27, 2015, and our Supreme Court

denied Appellant’s petition for allowance of appeal on September 23, 2015.3

Barney, 2015 WL 37433518, at *1, appeal denied, 124 A.3d 308 (Pa. 2015).

On September 23, 2016, Appellant filed pro se a PCRA petition, his first.4

In his pro se petition, Appellant raised “13 issues and sub-issues, including

not only a challenge to the legality of his sentence based on Commonwealth

---

3 On direct appeal, Appellant was represented by MaryJean Glick, Esquire
(“Attorney Glick”).

4 Appellant filed pro se a PCRA petition on August 12, 2014, and subsequently

filed a notice of appeal challenging his judgment of sentence on August 29,
2014. Appellant’s August 2014 petition was premature because Appellant had
neither waived nor exhausted his direct appeal rights and his judgment of
sentence had not yet become final. Commonwealth v. Smith, 244 A.3d 13,
16-17 (Pa. Super. 2020); see also 42 Pa.C.S.A. § 9543(b)(1) and (3).
Appellant’s judgment of sentence became final on December 23, 2015, upon
expiration of the time in which to seek discretionary review with the Supreme
Court of the United States. See U.S. Sup. Ct. R. 13(1) (stating, “A petition
for a writ of certiorari seeking review of a judgment of a lower state court that
is subject to discretionary review by the state court of last resort is timely
when it is filed with the Clerk within 90 days after entry of the order denying
discretionary review.”).

Appellant’s petition filed on September 23, 2016, was timely because it was
filed within one year of when his judgment of sentencing became final. 42
Pa.C.S.A. § 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”). A copy of Appellant’s 2016 PCRA petition,
however, is not part of the certified record currently before us.

-3-
J-S42013-25

v. Wolfe, 140 A.3d 651 (Pa. 2016),[5] but also various claims of ineffective

assistance of pre-trial counsel, prosecutorial misconduct, inadmissibility of

expert testimony, six trial court errors, insufficiency of the evidence, and two

claims that this Court had already addressed on direct appeal.”

Commonwealth v. Barney, 311 A.3d 597, 2023 WL 8764608, at *1

(Pa. Super. filed Dec. 19, 2023) (unpublished memorandum) (footnote

omitted). The PCRA court appointed counsel to represent Appellant.

Under Wolfe, Appellant’s prior judgment of sentence was illegal

because it included the imposition of a mandatory minimum sentence

pursuant to Section 9718. As such, the trial court resentenced Appellant on

March 6, 2018.6 In fashioning its new sentence, the trial court did not impose

a mandatory minimum sentence on Court 2 but, instead, imposed a sentence

of 10 to 20 years’ incarceration on Count 2. Appellant’s sentence on Count 2

fell within the standard range for sentencing, which was 120 months to the

statutory limit of 20 years. Appellant was resentenced to an aggregate term

of 20 to 40 years’ incarceration.

On October 15, 2020, this Court affirmed, in part, and vacated, in part,

Appellant’s 2018 judgment of sentence. Commonwealth v. Barney, 241

---

5 In Wolfe, our Supreme Court held that 42 Pa.C.S.A. § 9718 was
“irremediably unconstitutional on its face, non-severable, and void.” Wolfe,
140 A.3d at 663, relying on Alleyne v. United States, 570 U.S. 99 (2013).

6 In its order scheduling Appellant’s resentencing hearing, the PCRA court “did

not acknowledge the outstanding [and unresolved aspects of Appellant’s]
2016 PCRA petition.” Barney, 311 A.3d 597, 2023 WL 8764608, at *1.

-4-
J-S42013- 25

A.3d 428, 2020 WL 6083751, at *2 (Pa. Super. filed Oct. 15, 2020)

(unpublished memorandum). Specifically, this Court vacated, in part, the

portion of the 2018 judgment of sentence that required Appellant “to pay costs

associated with his resentencing[.]” Id. Our Supreme Court denied

Appellant’s petition for allowance of appeal, and the United States Supreme

Court denied Appellant’s writ for certiorari. Barney, 76 MAL 2021 (Pa. filed

Jul. 7, 2021) (unpublished order), cert. denied, 142 S.Ct. 1455 (2022).

On September 15, 2022, Appellant filed pro se a document captioned

“The Status or Resolution of PCRA [Petition] Date on 9-23-2016” (“Application

for Resolution”). In his Application for Resolution, Appellant indicated that the

PCRA court never filed a notice of its intent to dismiss Appellant’s September

2016 PCRA petition pursuant to Pennsylvania Rule of Criminal Procedure 907

and, in fact, never entered an order dismissing those aspects of the petition

that did not present challenges under Wolfe.

On October 4, 2022, the [PCRA] court denied Appellant’s
Application for Resolution with a docket entry titled “Order
denying amended/petition for post collateral relief.” The [PCRA]
court issued an untitled opinion that same day explaining its
reasons for denying the requested relief. Without citation to any
rule, statute, or case law, the [PCRA] court summarily stated that
the 2016 PCRA petition was denied “by operation of law” when the
[trial] court resentenced Appellant and, thus, the [PCRA] court
“need not give notice of its intent to dismiss Appellant’s 2016
PCRA petition because said petition was rendered moot when
[Appellant’s] original sentence was vacated on March 6, 2018.

Barney, 311 A.3d 597, 2023 WL 8764608, at *2 (footnote and original

brackets omitted). Appellant filed pro se a notice of appeal challenging the

-5-
J-S42013-25

order that denied his Application for Resolution. On December 19, 2023, this

Court vacated the October 4, 2022 order and remanded the case to the PCRA

court with the instructions that the PCRA court “appoint PCRA counsel or hold

a Grazier hearing;[7] review and address the [unresolved] claims raised in the

2016 PCRA petition that remain outstanding; and either issue a Rule 907

notice addressing those issues, with an explanation of why they merit no

hearing and no relief, or schedule a hearing to address any issues that may

merit further review.” Id. at *4. In reaching its decision, this Court explained

that

[c]ontrary to the [PCRA] court’s observation, vacating the illegal
sentence pursuant to Wolfe and resentencing Appellant did not
vacate Appellant’s conviction or otherwise extinguish the
remaining claims in his outstanding PCRA [p]etition. Further, we
are unable to find any authority to support the PCRA court’s
summary conclusion that the new sentence extinguished the PCRA
claims challenging the underlying convictions. Our research
likewise reveals no authority to support the PCRA court’s
conclusion that a PCRA petition can be “denied by operation of
law.” Notably, the PCRA court provided no citation to precedential
or statutory authority to support either of its conclusions.

Id. at *4 n.11 (record citation omitted). This Court further stated that

[e]ven if we were to consider the resentencing hearing as a partial
grant of PCRA relief, there was no Rule 907 notice issued and no
order explicitly denying the remaining claims. We are unable to
find through our research any authority permitting an appellate
court to infer a [PCRA] court’s intentions, particularly where the
record does not indicate any acknowledgment by the trial court at
resentencing of its awareness of the outstanding PCRA claims.

---

7 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

-6-
J-S42013-25

Id. at *3 n.3 (extraneous capitalization omitted).

On remand, Appellant filed pro se a motion for appointment of counsel.

On January 29, 2024, the PCRA court appointed Chris Lyden, Esquire

(“Attorney Lyden”) to represent Appellant. On May 10, 2024, Attorney Lyden

filed a petition requesting an evidentiary hearing to address a request by

Appellant to proceed pro se. After conducting a Grazier hearing, the PCRA

court granted Appellant’s request to proceed pro se on August 5, 2024.

On October 11, 2024, Appellant filed pro se an amended PCRA petition.8

Included with his petition was an “instructions sheet” stating that “under order

by [the PCRA court] on August 5, 2024[, Appellant’s] 2016 PCRA is timely

filed[.]” The “instructions sheet” further directed the PCRA court to timestamp

and docket the enclosed filing as a “2016 Amended PCRA[.]” The PCRA court

accepted Appellant’s amended petition. On November 8, 2024, the

Commonwealth filed an answer to Appellant’s amended petition. On

December 3, 2024, the PCRA court filed a notice pursuant to Rule 907 of its

intent to dismiss Appellant’s petition without an evidentiary hearing. On

---

8 Appellant’s amended petition was timestamped as having been received by

the PCRA court on October 17, 2024. The envelope Appellant used to mail his
filing bears a postal cancellation stamp dated October 11, 2024. Pursuant to
the “prisoner mailbox rule,” Appellant’s petition is deemed filed on October
11, 2024. See Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997)
(explaining that, pursuant to the “prisoner mailbox rule,” a document is
deemed filed on the date an inmate deposits the mailing with prison
authorities or places it in the prison mailbox). We apply the prisoner mailbox
rule hereafter to ascertain the filing date for Appellant’s subsequent
submissions.

-7-
J-S42013-25

December 19, 2024, Appellant filed pro se a response to the Rule 907 notice.

On January 15, 2025, the PCRA court dismissed Appellant’s petition. This

appeal followed.9

Appellant raises pro se the following issues for our review:

I. Did the PCRA court’s decision to waive [Appellant’s] claim
[number] 1 issues violate the Pennsylvania Legislature’s intent
under 42 Pa.C.S.[A. § ]9543(a)(2)(i) of the PCRA?

II. Did the PCRA court abuse its discretion,

A.) when the [PCRA] court failed to conduct an evidentiary
hearing [to determine whether, or not, Attorney] Glick
[was] ineffective as direct appeal counsel in violation of the
6th [and] 14th [Amendments of the United States
Constitution and Article I, Section 9 of the Pennsylvania
Constitution]

---

9 On February 5, 2025, the PCRA court directed Appellant to file a concise
statement of errors complained of on appeal pursuant to Pennsylvania Rule of
Appellate Procedure 1925(b) by March 19, 2025. On March 6, 2025, 14 days
before the deadline by which Appellant was instructed to file his Rule 1925(b)
concise statement, the PCRA filed its Rule 1925(a) opinion. In its Rule 1925(a)
opinion, the PCRA court stated that Appellant failed to file a Rule 1925(b)
concise statement and, as such, all issues are waived. PCRA Court Opinion,
3/6/25, at 2 (unpaginated).

On March 18, 2025, Appellant filed pro se a request with this Court to remand
the case to permit Appellant to file a Rule 1925(b) concise statement nunc pro
tunc. In his filing, Appellant asserted that he never received the February 5,
2025 order directing him to file a Rule 1925(b) concise statement. In an April
4, 2025 per curiam order, this Court granted Appellant’s request and
remanded the case to the PCRA court to permit Appellant to file a Rule 1925(b)
concise statement nunc pro tunc. On April 15, 2025, Appellant filed pro se his
Rule 1925(b) concise statement. On May 5, 2025, the Commonwealth filed a
response to Appellant’s Rule 1925(b) concise statement, and, on May 14,
2025, the PCRA court filed an amended Rule 1925(a) opinion addressing the
issues raised by Appellant in his Rule 1925(b) concise statement.

-8-
J-S42013-25

1.) when [Attorney Glick] waived [Appellant’s]
constitutional rights to counsel on direct appeal and
forced [Appellant] to proceed pro se against his will;
[and]

2.) when [Attorney Glick] failed to follow the
requirements of [Anders v. California, 386 U.S. 738
(1967)?]

B.) when the [PCRA] court failed to conduct an evidentiary
hearing [to determine whether, or not, Attorney] Kaye
[was] ineffective as pre-trial counsel in violation of the 6th
[and] 14th [Amendments of the United States Constitution
and Article I, Section 9 of the Pennsylvania Constitution]
when [Attorney Kaye] failed to represent [Appellant] as his
pre-trial advocate?

C.) when the [PCRA] court failed [to determine whether, or
not, the trial court conducted] a penetrating, comprehensive
and probing colloquy waiver of [Appellant’s right to] counsel
before the start of trial?

D.) when the [PCRA] court denied that [Appellant’s] trial
was fundamentally unfair in violation of the 14th
[Amendment of the United States Constitution and Article I,
Section 9 of the Pennsylvania Constitution],

1.) when [Appellant’s] verdict was insufficient to
convict[?];

2.) when the trial court used the law to declare to the
jury - the accuser is the [“]victim[”] in this case
before a verdict was rendered[?];

3.) when the trial court failed to poll the jury upon
[Appellant’s] request[?];

4.) when the trial court misapplied the law on the date
of the alleged offenses in violation of [Pennsylvania
Rule of Criminal Procedure] 504(4) and
Commonwealth v. Devlin, 333 A[.2]d 888 (Pa.
1975)[?];

5.) when the trial court [interfered] in [Appellant’s]
case,

(a) by giving undo oral criticism;

-9-
J-S42013-25

(b) by showing [favoritism] to the
Commonwealth in front of the jury; [and]

(c) by denying [Appellant’s] third-party
culpability defense[?];

6.) when the Commonwealth suppressed [the
following] exculpatory evidence that would have given
a reasonable probability of a different outcome,

(a) date of the alleged offenses;

(b) the Wee Daycare [Attendance] Log and
Authorization Form;

(c) Erin Manuel’s complete journal;

(d) [Appellant’s] two-year-old son’s [children
and youth service (“CYS”)] video interview;

(e) Dr. Hoshauer’s studies;

(f) the accuser’s bowel problem medical
records;

(g) Erin Manuel’s CYS testimony in 2009; [and]

(h) the cumulative effect of the suppressed
evidence[?];

7.) the Commonwealth using [the following] expert
witnesses to bolster the accuser’s credibility,

(a) Ms. Stanley’s testimony;

(b) Ms. Holly’s testimony; [and]

(c) Dr. Hoshauer’s testimony[?]

8.) when the cumulative effect of the trial errors so
undermined the truth determining process that no
adjudication of guilt or innocence could have taken
place?

Appellant’s Brief at 4-6 (extraneous capitalization omitted).

• 10 - J-S42013-25

Collectively, Appellant’s issues challenge the PCRA court’s order

dismissing his petition without first conducting an evidentiary hearing. Proper

appellate review of a PCRA court’s dismissal of a petition is limited to the

examination of “whether the PCRA court’s determination is supported by the

record and free of legal error.” Commonwealth v. Miller, 102 A.3d 988,

992 (Pa. Super. 2014) (citation omitted). “The PCRA court’s findings will not

be disturbed unless there is no support for the findings in the certified record.”

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citations

omitted). “This Court grants great deference to the findings of the PCRA court,

and we will not disturb those findings merely because the record could support

a contrary holding.” Commonwealth v. Hickman, 799 A.2d 136, 140

(Pa. Super. 2002) (citation omitted). In contrast, we review the PCRA court’s

legal conclusions de novo. Commonwealth v. Henkel, 90 A.3d 16, 20

(Pa. Super. 2014) (en banc), appeal denied, 101 A.3d 785 (Pa. 2014).

In his first issue (Issue I, supra), Appellant asserts that the PCRA court

erred in dismissing his petition on the grounds that the issues raised in “claim

1” of his amended petition were waived.10 Appellant’s Brief at 23-28.

---

10Appellant summarized the issues presented as part of “claim 1” of his
amended PCRA petition as follows:

I. [Appellant’s] trial was fundamentally unfair that it violated
[Appellant’s rights under the] United States Constitution[-]14th
Amendment and the Pennsylvania Constitution[-]Article [I],
Section 9, when

• 11 - J-S42013-25

Appellant contends that the PCRA court’s waiver finding ran afoul of the notion

that he is eligible for collateral relief whenever any conviction or sentence

results from a violation of the constitution of the United States or Pennsylvania

and the violation, in turn, undermines the truth-determining process such that

no reliable adjudication of guilt or innocence could have occurred. Id. at 23

---

A. the trial court and the Commonwealth called the accuser a
“victim” in front of the jury;

B. the Commonwealth suppressed exculpatory evidence[ or]
facts that would have revealed [Appellant’s] innocence or
sowed doubt in the jury’s mind;

C. the Commonwealth impermissibly [bolstered] the accuser’s
credibility through expert witness[] testimony;

D. the trial court abused its discretion when it interfered in
[Appellant’s] defense[] strategies and erroneously applied
the law;

E. the Commonwealth failed to support the verdict with
sufficient evidence of every fact and element of the crime
“beyond a reasonable doubt;”

F. the jury saw [Appellant] in shackles while being escorted by
two sheriff officers and then coming back fifteen minutes
later with a verdict;

G. "beyond a reasonable doubt" [as defined by the trial court
at trial] violated [Appellant’s] “presumption of innocence;”
and

H. the cumulative effect of errors in [Appellant’s] case
rendered his trial fundamentally unfair[.]

Amended PCRA Petition, 10/11/24, at 6 (extraneous capitalization omitted).
The allegations of error presented as part of “claim 1” in Appellant’s amended
PCRA petition substantially mirror the issues raised by Appellant on appeal.
Compare id. with Appellant’s Brief at 4-6 (Issue II(D), supra).

• 12 - J-S42013-25

(asserting that, the PCRA court’s finding of waiver ran afoul of Sections

9543(a)(2)(i) and 9544(b)). Appellant argues that a “plain reading of

[Section] 9543(a)(2)(i) [suggests that Appellant] can bring any

[c]onstitutional issue in a PCRA [petition] as long as [that issue] ‘undermines

the truth-determining process.’” Id. at 24. Implicit within Appellant’s

argument is the assertion that any alleged constitutional violation which

supposedly undermines the truth-determining process is not subject to

waiver. On the strength of this assertion, Appellant maintains he is entitled

to an evidentiary hearing when any constitutional issue has been raised within

the context of a PCRA petition.

We disagree with Appellant’s opening claim. Section 9543(a) of the

PCRA states as follows:

§ 9543. Eligibility for relief

(a) General rule. - To be eligible for relief under this subchapter,
the petitioner must plead and prove by a preponderance of the
evidence all of the following:

(1) That the petitioner has been convicted of a crime under the
laws of this Commonwealth and is at the time relief is granted:

(i) currently serving a sentence of imprisonment, probation
or parole for the crime;

(ii) awaiting execution of a sentence of death for the crime;

(iii) serving a sentence which must expire before the person
may commence serving the disputed sentence; or

(iv) has completed a sentence of imprisonment, probation
or parole for the crime and is seeking relief based upon
[deoxyribonucleic acid (“DNA”)] evidence obtained under
[S]ection 9543.1(d) (relating to post[-]conviction DNA
testing).

• 13 - J-S42013-25

(2) That the conviction or sentence resulted from one or more
of the following:

(i) A violation of the Constitution of this Commonwealth or
the Constitution or laws of the United States 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.

(ii) 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.

(iii) A plea of guilty unlawfully induced where the
circumstances make it likely that the inducement caused the
petitioner to plead guilty and the petitioner is innocent.

(iv) The improper obstruction by government officials of the
petitioner’s right of appeal where a meritorious appealable
issue existed and was properly preserved in the trial court.

(v) Deleted.

(vi) The unavailability at the time of trial of exculpatory
evidence that has subsequently become available and would
have changed the outcome of the trial if it had been
introduced.

(vii) The imposition of a sentence greater than the lawful
maximum.

(viii) A proceeding in a tribunal without jurisdiction.

(3) That the allegation of error has not been previously litigated
or waived.

references “unitary review” by Pennsylvania Supreme Court
Order of Aug. 11, 1997, imd. effective.>

(4) That the failure to litigate the issue prior to or during trial,
during unitary review or on direct appeal could not have been
the result of any rational, strategic or tactical decision by
counsel.

• 14 - J-S42013-25

42 Pa.C.S.A. § 9543(a) (emphasis added). A plain reading of Section 9543(a),

through the use of the word “all” in the opening clause, requires a petitioner

to establish by a preponderance of the evidence that he or she has satisfied

all of the requirements set forth in sub-sections (a)(1), (a)(2), (a)(3), and

(a)(4). Id. Section 9543(a)(3) requires a petitioner to establish by a

preponderance of the evidence that “the allegation of error has not been

previously litigated or waived.” 42 Pa.C.S.A. § 9543(a)(3). In pertinent part,

Section 9544(b) defines the concept of “issues waived” as follows:

For purposes of this sub[-]chapter, an issue is waived if the
petitioner could have raised it but failed to do so before trial, at
trial, during unitary review, on appeal or in a prior state
post[-]conviction proceeding.

42 Pa.C.S.A. § 9544(b).

Here, the procedural posture of Appellant’s case reveals that Appellant

was convicted by a jury of the aforementioned crimes on April 12, 2014, and

the trial court imposed its judgment of sentence, as set forth supra, on August

1, 2014. Thereafter, Appellant, while represented by Attorney Glick, appealed

his judgment of sentence. On direct appeal, Attorney Glick, having made a

thorough examination of the record, concluded that Appellant’s appeal was

wholly frivolous and filed an Anders brief. Barney, 2015 WL 7433518, at *1.

Attorney Glick provided Appellant with a copy of the Anders brief and

explained to Appellant that he had the right to proceed pro se or with

newly-retained counsel and to raise any other issues that he believed might

have merit. Id. Appellant did not file a response to Anders brief setting forth

• 15 - J-S42013-25

any additional issues that he believed might have merit. Id. at *1 n8. This

Court reviewed the issues raised in the Anders brief, as well as conducted an

independent review of the proceedings, and determined that Appellant’s

appeal was, in fact, wholly frivolous. Id. at 1-3.

In his PCRA petition, Appellant raises numerous issues which challenge

his conviction. Because Appellant was able to raises all but one of these issues

on direct appeal, as discussed more fully infra, by proceeding pro se or

retaining new counsel and filing a response to the Anders brief but failed to

do so, the issues Appellant raises within the context of Sections I and II(D)

his amended PCRA petition (“claim 1”) are waived pursuant to Section

9544(b).11 Because Appellant could have raised his constitutional claims

before trial, at trial, during unitary review, or on appeal – but failed to do

so - we discern no error of law or abuse of discretion in the PCRA court’s

finding that the issues Appellant set forth in Sections I and II(D) of this petition

are waived and, therefore, Appellant is not entitled to collateral relief. 42

Pa.C.S.A. § 9543(a)(3).

In his amended PCRA petition, Appellant requested the PCRA court

conduct an evidentiary hearing, or, in the alternative grant collateral relief in

the form of a new trial, based upon the Commonwealth’s alleged violation of

---

11 The single issue that Appellant purportedly was unable to raise during his

direct appeal relates to an alleged violation by the Commonwealth under
Brady v. Maryland, 373 U.S. 83 (1963), as discussed more fully infra.

• 16 - J-S42013-25

Brady, supra. In support of his claim for collateral relief, Appellant asserted

the following:

(D) [Appellant’s] Two[-]Year[-]Old Son’s CYS Video
Interview

The facts reveal - the Commonwealth had [Appellant’s son’s] CYS
video interview and failed to turn it over to [Appellant] under
Brady.

On March 25, 2013[,] the district attorney [] informed pretrial
counsel [Attorney] Kaye that they had a video of [Appellant’s]
two[-]year[-]old son with CYS. Attachment D[.]

[Appellant] was never made[] aware of this interview before or
after trial – [Appellant] found out about this video two years after
his direct appeal became final - when he received his complete
criminal file from Attorney Kaye.

This interview was critical to a decision [Appellant] had to make
before trial began - whether or not to redact any mention of [his]
son in the accuser’s first interview with CYS. Banks v. Dretke[,]
540 US 668, 696 (2004) (defense is entitled to presume that
prosecutors have “discharged their official duties”); [see also
Bracy v. Gramley, 520 [U.S.] 899, 909 (1997)[.]

The accuser stated in his CYS interview that [Appellant] sexually
abused his [own] son too – [Appellant’s] son's interview could
have revealed that the accuser was lying - this video could have
allowed [Appellant] to make an informed decision when it came
to strategy and defenses concerning the accuser’s video
interview - attacking the accuser’s credibility, since this came
down to a credibility contest.

For the foregoing reasons - an [evidentiary] hearing must be held
to further develop the record or remand this case for a new trial.

Amended PCRA Petition, 10/11/24, at 10 (extraneous capitalization omitted).

In Brady, the United States Supreme Court held that the
suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution. The [United States] Supreme

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Court subsequently held that the duty to disclose such evidence is
applicable even if there has been no request by the accused, and
that the duty may encompass impeachment evidence as well as
directly exculpatory evidence.

Commonwealth v. Conforti, 303 A.3d 715, 725 (Pa. 2023). To demonstrate

a violation of the Brady strictures, a defendant must prove that “the evidence

was favorable to the accused, either because it is exculpatory or because it

impeaches; the evidence was suppressed by the prosecution, either willfully

or inadvertently; and prejudice ensued.” Id. (citations and original quotation

marks omitted). Here, Appellant asserts that, because he did not learn of the

video recording of his son’s interview with CYS until “two years after his direct

appeal became final,” he was unable to raise a Brady claim during his direct

appeal and, thus, his Brady claim is not waived for purpose of collateral relief.

Assuming that Appellant is able to establish that he did not learn of the

existence of the interview evidence until “two years after his direct appeal

became final,” he failed to establish by a preponderance of the evidence, in

his amended PCRA petition, that he was prejudiced by his lack of knowledge

of the interview evidence at the time of trial.

“To show prejudice, [Appellant] must demonstrate a reasonable

probability that, had the evidence been disclosed to the defense, the result of

the proceeding would have been different. A reasonable probability for these

purposes is one which undermines confidence in the outcome of the trial.”

Commonwealth v. Simpson, 66 A.3d 253, 264 (Pa. 2013) (citations and

original quotation marks omitted). “Attachment D,” which Appellant included

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as part of his amended PCRA petition, is an electronic mail (“email”) exchange

between the district attorney and Attorney Kaye, who at the time represented

Appellant as trial counsel. In that email exchange, the district attorney

informed Attorney Kaye that “a recording of a [Children’s Alliance Center]

interview with [Appellant’s son]” existed. The district attorney stated,

however, that “I don’t think [Appellant’s son] disclosed anything.”

Nonetheless, Attorney Kaye requested a copy of the interview video be

provided to the defense. Amended PCRA Petition, 10/11/24, at Attachment

D. Although Appellant now has a copy of the interview evidence after

receiving “his complete criminal file from Attorney Kaye,” Appellant failed to

state specifically what disclosures his son may, or may not, have made during

the interview with CYS that could have been used to potentially impeach the

accuser. Instead, Appellant made only bald assertions in his amended PCRA

petition that the “interview could have revealed that the [a]ccuser was

lying[.]” Id. at 10 (emphasis added). Therefore, Appellant failed to assert

allegations that would support a finding, by a preponderance of the evidence,

that he was prejudiced by the alleged non-disclosure of the interview

evidence. Because Appellant failed to plead and prove a viable Brady claim,

we discern no error of law or abuse of discretion in the PCRA court’s

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determination that Appellant’s Brady claim did not entitle him to collateral

relief.12

Next, Appellant asserts in his amended PCRA petition that Attorney

Kaye, his pre-trial counsel, and Attorney Glick, his direct appeal counsel, were

ineffective in their representation of Appellant. See Amended PCRA Petition,

10/11/24, at 22-27; see also Issues II(A) and II(B), supra.

“It is well-established that counsel is presumed effective[.]”

Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012), citing Strickland

v. Washington, 466 U.S. 668, 687-691 (1984). To plead and prove a claim

of ineffective assistance of counsel, “a petitioner must establish: (1) that the

underlying issue has arguable merit; (2) counsel’s actions lacked an

objective[ly] reasonable basis; and (3) actual prejudice resulted from

counsel’s act or failure to act.” Commonwealth v. Stewart, 84 A.3d 701,

706 (Pa. Super. 2013) (en banc), appeal denied, 93 A.3d 463 (Pa. 2014). “A

claim of ineffectiveness will be denied if the petitioner’s evidence fails to meet

any of these prongs.” Commonwealth v. Martin, 5 A.3d 177, 183 (Pa.

2010).

With regard to the reasonable basis prong, we do not question
whether there were other more logical courses of action which
counsel could have pursued[. R]ather, we must examine whether

---

12 Moreover, a review of the notes of testimony from Appellant’s trial reveal

that Appellant challenged the credibility of the accuser during
cross-examination by demonstrating that the accuser had previously made
statements which contradicted his testimony at trial that he was sexually
abused by Appellant. N.T., 4/22/14, at 110-136.

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counsel’s decisions had any reasonable basis. We will conclude
that counsel’s chosen strategy lacked a reasonable basis only if
[the petitioner] proves that an alternative not chosen offered a
potential for success substantially greater than the course actually
pursued. To establish the prejudice prong, the petitioner must
show that there is a reasonable probability that the outcome of
the proceedings would have been different but for counsel’s
ineffectiveness.

Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011) (citations and

quotation marks omitted).

Regarding Appellant’s pre-trial counsel, Appellant asserts that Attorney

Kaye was ineffective when he “failed to know the particulars of his case[,]

failed to investigate this case[, and] failed to prepare [Appellant] for [t]rial[.]”

Amended PCRA Petition, 10/11/24, at 6, 22-25. In dismissing Appellant’s

petition, the PCRA court found that Appellant’s claim of ineffective assistance

by Attorney Kaye was without arguable merit because Appellant was

precluded from bringing an ineffectiveness claim once he voluntarily waived

his right to counsel and decided to proceed pro se at trial. Rule 907 Notice,

12/3/24, at 10 (unpaginated); see also PCRA Court Opinion, 5/14/25, at 6

(unpaginated). We agree.

Attorney Kaye was appointed to represent Appellant at trial. Prior to

the start of trial, Appellant requested permission to proceed pro se. On April

11, 2014, the trial court conducted a Grazier hearing to address Appellant’s

request. At the hearing, the trial court asked Appellant the reason for his

request to proceed pro se, to which Appellant responded, “I prefer to do it,

and I don’t have confidence that my representation [(referring to Attorney

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Kaye)] is good enough to be able to find me – to acquit me from the charges.”

N.T., 4/11/14, at 3. The trial court proceeded to conduct a colloquy of

Appellant to determine if, inter alia, he understood the consequences of

self-representation and if he was voluntarily, knowingly, and intelligently

waiving his right to counsel. Id. at 3-10. Satisfied that Appellant voluntarily,

knowingly, and intelligently waived his right to counsel, the trial court granted

Appellant’s request to represent himself. Id. at 18.

It is well-established that a defendant has a constitutional right to

counsel and, correspondingly, a right to represent himself or herself.

Commonwealth v. Blakeney, 108 A.3d 739, 749 (Pa. 2014), relying on

Faretta v. California, 422 U.S. 806 (1975) and Indiana v. Edwards, 554

U.S. 164 (2008); see also U.S. CONST. amend. VI. “The self-representation

choice, however, is not without consequences, including that a defendant who

knowingly and intelligently waives his [or her] right to counsel and represents

himself [or herself] at trial cannot later seek to revive defaulted trial claims

by alleging his [or her] own ineffectiveness or the ineffectiveness of his [or

her] standby counsel.” Blakeney, 108 A.3d at 749, citing Commonwealth

v. Fletcher, 896 A.2d 508, 522 (Pa. 2006) and Commonwealth v. Bryant,

855 A.2d 726, 736 (Pa. 2004); see also Commonwealth v. Appel, 689 A.2d

891, 904 (Pa. 1997), abrogated on other grounds by Commonwealth v.

Fears, 86 A.3d 795 (Pa. 2014).

Here, the trial court found, and the record supports, that Appellant

voluntarily, knowingly, and intelligently waived his right to counsel prior to the

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start of his trial. As such, Appellant bore the responsibility of

self-representation and cannot now claim that his pre-trial counsel was

ineffective in his pre-trial representation of Appellant. Moreover, Appellant

failed to point to any pre-trial act or omission by Attorney Kaye that was such

a departure from the standard expected of counsel under the 6th Amendment

of the United States Constitution that it prejudiced Appellant at trial.

Therefore, we discern no error of law or abuse of discretion in the PCRA court’s

dismissal of Appellant’s ineffectiveness claim as it relates to Attorney Kaye.

Regarding Attorney Glick, Appellant asserts, in his amended PCRA

petition, that Attorney Glick was ineffective because she “forced [Appellant]

to proceed pro se” on direct appeal and “failed to be [Appellant’s a]dvocate in

presenting his claims” on direct appeal. Amended PCRA Petition, 10/11/24,

at 6, 26-27. Appellant contends that Attorney Glick’s act of filing an Anders

brief on direct appeal “forced” him to proceed pro se and that, in filing a

no-merit brief, Attorney Glick failed to “bring forth facts that would have

gained [Appellant] relief.” Id. at 26-27. In denying Appellant’s

ineffectiveness claim as it related to Attorney Glick, the PCRA court stated that

“[i]n [Appellant’s] direct appeal, [this Court] found that [Attorney] Glick fully

complied with the requirements of an Anders brief and then conducted a

review of the proceedings on its own. [This Court] subsequently affirmed the

conviction and sentence. Consequently, [Appellant] cannot establish that

[Attorney] Glick was ineffective during his [direct] appeal process.” Rule 907

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Notice, 12/3/24, at 11 (unpaginated); see also PCRA Court Opinion, 5/14/25,

at 4-5 (unpaginated).

It is well-established that the “Anders brief process” is constitutionally

sound and was, in fact, developed to guarantee that an indigent defendant

receives equality and a fair process in his or her criminal matter. The United

States Supreme Court long-ago explained the need for the “Anders brief

process” and the requirements that must be met in order to satisfy a

defendant’s constitutional guarantees for direct appeal of his or her conviction

as follows,

The constitutional requirement of substantial equality and fair
process can only be attained where counsel acts in the role of an
active advocate in behalf of his client, as opposed to that of amicus
curiae. The no-merit letter and the procedure it triggers do not
reach that dignity. Counsel should, and can with honor and
without conflict, be of more assistance to his [or her] client and to
the [appellate] court. His [or her] role as advocate requires that
he [or she] support his [or her] client’s appeal to the best of his
[or her] ability. Of course, if counsel finds [the] case to be wholly
frivolous, after a conscientious examination of it, he [or she]
should so advise the [appellate] court and request permission to
withdraw. That request must, however, be accompanied by a
brief referring to anything in the record that might arguably
support the appeal. A copy of counsel’s brief should be furnished
[to] the indigent [defendant] and time allowed [to the defendant]
to raise any points that he [or she] chooses[. T]he [appellate]
court - not counsel - then proceeds, after a full examination of all
the proceedings, to decide whether the case is wholly frivolous.

Anders, 386 U.S. at 744 (footnote omitted); see also Commonwealth v.

Santiago, 978 A.2d 349, 354 (Pa. 2009) (stating that “in cases that involve

frivolous appeals, counsel may request and receive permission to withdraw

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without depriving the indigent defendant of his [or her] right to

representation, provided certain safeguards[, i.e., the submission of an

Anders brief,] are met”).

In order to withdraw pursuant to Anders, “counsel must file a brief that

meets the requirements established by our Supreme Court in [Santiago,

supra].” Commonwealth v. Harden, 103 A.3d 107, 110 (Pa. Super. 2014)

(parallel citation omitted). Specifically, counsel’s Anders brief must comply

with the following prerequisites:

(1) provide a summary of the procedural history and facts, with
citations to the record;

(2) refer to anything in the record that counsel believes
arguably supports the appeal;

(3) set forth counsel’s conclusion that the appeal is frivolous;
and

(4) state counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of
record, controlling case law, [and] statutes on point that
have led to the conclusion that the appeal is frivolous.

Id. (citation omitted).

Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.

2005), and its progeny, “[c]ounsel also must provide a copy of the Anders

brief to his [or her] client.” Commonwealth v. Orellana, 86 A.3d 877, 880

(Pa. Super. 2014) (internal quotation marks and citation omitted). The brief

must be accompanied by a letter that advises the client of the option to “(1)

retain new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3)

raise any points that the appellant deems worthy of [this Court’s] attention in

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addition to the points raised by counsel in the Anders brief.” Id. “Once

counsel has satisfied the above requirements, it is then this Court’s duty to

conduct its own review of the trial court’s proceedings and render an

independent judgment as to whether the appeal is, in fact, wholly frivolous.”

Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en

banc) (citation and internal quotation marks omitted).

On direct appeal, this Court, in considering Attorney Glick’s Anders

brief, found that

[Attorney Glick’s] petition [to withdraw] states that she has made
an examination of the record and concluded the appeal is wholly
frivolous. Counsel indicates that she supplied [Appellant] with a
copy of the Anders brief and a letter explaining his right to
proceed pro se,[FN 8] or with newly-retained counsel, and to raise
any other issues he believes might have merit. Counsel has also
submitted [an Anders] brief [to this Court], setting out in neutral
form three issues of arguable merit and, pursuant to the dictates
of Santiago, explains why she believes the issues to be frivolous.
Thus, counsel has substantially complied with the requirements
for withdrawal.

[Footnote 8: Appellant] has not submitted any additional or
supplemental filings to this Court.

Barney, 2015 WL 7433518, at *1. This Court then proceeded to conduct its

own review of the trial proceedings. Id. Ultimately, this Court determined

that Appellant’s appeal was wholly frivolous and affirmed Appellant’s judgment

of sentence. Id. at 2-3.

Having previously found that Attorney Glick satisfied the requirements

of Anders, Santiago, and their progeny, we concur with the PCRA court, and

the record supports, that Appellant’s claim that Attorney Glick was ineffective

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in her representation of Appellant on direct appeal to be without arguable

merit.13 Therefore, we discern no error of law or abuse of discretion in the

PCRA court’s dismissal of Appellant’s ineffectiveness claim as it relates to

Attorney Glick.

After careful review, for the reasons set forth herein, we discern no

abuse of discretion or error of law in the PCRA court’s order that dismissed

Appellant’s amended petition.14

---

13 Appellant complained vaguely that Attorney Glick “acted like the
Commonwealth’s agent” when she explained why she believed the appeal to
be frivolous. Appellant’s Brief at 36. However, our review of the record
confirms that Attorney Glick simply complied with requirements of Anders
when she prepared and submitted her filing on direct appeal. Hence, there
are no grounds for concluding that her performance was deficient.

14 To the extent that Appellant claims that the PCRA court erred in conducting

an evidentiary hearing to determine whether, or not, the trial court performed
a “penetrating, comprehensive, and probing” colloquy of Appellant before
finding that he waived his right to trial counsel (Issue II(C.), supra), we find
this issue waived for failure to raise the issue in his amended PCRA petition.
See Amended PCRA Petition, 10/11/24, at 6; see also Pa.R.A.P. 302(a)
(stating that, “[i]ssues not raised in the trial court[, or the PCRA court,] are
waived and cannot be raised for the first time on appeal”). Moreover, as we
discussed supra, the trial court found, and the record supports, that Appellant
knowingly, voluntarily, and intelligently waived his right to trial counsel.

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Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.
Prothonotary

Date: 03/18/2026

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