Com. v. Kinnard, R. II

• Court: Superior Court of Pennsylvania
• Decided: June 30, 2026
• Docket: 543 MDA 2025
• Status: Unpublished
• Author: Beck

Opinion

J-S10029-26

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RICHARD W. KINNARD II : : Appellant : No. 543 MDA 2025 :

Appeal from the PCRA Order Entered March 21, 2025 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR-0000443-2016

BEFORE: DUBOW, J., BECK, J., and BENDER, P.J.E.

MEMORANDUM BY BECK, J.: FILED JUNE 30, 2026

Richard W. Kinnard II (“Kinnard”) appeals pro se from the order entered

by the Lebanon County Court of Common Pleas dismissing his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”).1 Because the petition is

untimely and Kinnard failed to establish an exception to the statutory time-

bar, we affirm.

This Court previously set forth the relevant underlying facts:

[O]n the night of September 18 to September 19, 2015, [Kinnard], Michael Rivera [(“Rivera”)], and several others were drinking at a house in York, Pennsylvania. Rivera added MDMA (a.k.a. “Molly”) to a bottle of alcohol. [Kinnard] did not see Rivera do this, and [Kinnard] subsequently drank a shot from that bottle. [Kinnard’s] group then went to Vinny’s Good Time Night Club (Vinny’s) in Lebanon, Pennsylvania to continue drinking. Later that evening, Corey Bryan [(“Bryan”)], a security guard, expelled ____________________________________________

1 42 Pa.C.S. §§ 9541-9546. J-S10029-26

[Kinnard] and another man from Vinny’s. [Kinnard] returned to Vinny’s a short time later and several gunshots rang out. Bryan was hit by three bullets and killed. Another bullet wounded a patron inside Vinny’s who survived her injuries.

Commonwealth v. Kinnard, 307 A.3d 678, *1 (Pa. Super. 2023) (non-

precedential decision).

The case proceeded to a jury trial, at which Dr. Jerome Gottlieb testified

as an expert for the defense. Dr. Gottlieb explained the effects of combining

alcohol and MDMA, stating the combination effectively disinhibits the user and

would magnify any tendencies toward aggression or violence. He did not

examine Kinnard or review toxicology or blood test results for Kinnard.

Ultimately, the jury found Kinnard guilty of, inter alia, first-degree

murder. The trial court sentenced Kinnard to life in prison without the

possibility of parole. This Court affirmed the judgment of sentence, and on

March 12, 2019, the Supreme Court of Pennsylvania denied allowance of

appeal. See Commonwealth v. Kinnard, 1296 MDA 2017, 2018 WL

4560454 (Pa. Super. 2018) (non-precedential decision), appeal denied, 204

A.3d 362 (Pa. 2019).

Kinnard filed a timely pro se PCRA petition on January 22, 2020. The

PCRA court appointed counsel, who filed an amended PCRA petition alleging

several claims of ineffective assistance of trial counsel. Following an

evidentiary hearing, held on March 11, 2022, the PCRA court denied Kinnard’s

petition on May 9, 2022.

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After the appointment of new counsel, Kinnard appealed the denial.

Although the record is not entirely clear, it appears Kinnard contacted Dr.

Lawrence Guzzardi on his own accord at some point during the pendency of

his first PCRA petition to obtain a second expert opinion regarding the effects

MDMA and alcohol had on his ability to form the intent to kill. Dr. Guzzardi

and Kinnard reportedly spoke by phone and Dr. Guzzardi sent his findings to

Kinnard’s appellate PCRA counsel in a letter dated December 26, 2022. This

letter, however, was never filed of record or presented to the PCRA court.

Kinnard raised numerous claims on appeal, including that initial PCRA

counsel rendered ineffective assistance by “failing to request that Dr. Gottlieb,

or another toxicology expert, examine [him] prior to the PCRA evidentiary

hearing.” Kinnard, 307 A.3d 678 at *8. The prior panel of this Court found

that he did not “sufficiently develop his claim,” as he presented “only bald

assertions that prior PCRA counsel lacked a reasonable basis for failing to

request an evaluation.” Id. at *10. The panel further found that he did not

show he was prejudiced by initial PCRA counsel’s failing in this regard because

he did not plead and prove that Dr. Gottlieb or a toxicology expert was willing

and available to testify at his PCRA hearing. Id. In reaching the latter

determination, the Court stated it “may not consider the unsigned letter from

Dr. Guzzardi included in [Kinnard’s] brief because that letter is not part of the

certified record.” Id. at *10 n.9.

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Kinnard also raised a claim on appeal that trial counsel provided

ineffective assistance by failing to present a diminished capacity defense

based upon his intoxication at the time of the murders.2 Id. at *4. The prior

panel found, based upon the credibility determinations reached by the PCRA

court (finding the testimony of Kinnard’s trial counsel credible and Kinnard’s

testimony to be incredible), that Kinnard’s trial counsel “advised [him] that he

could pursue a diminished capacity defense, [Kinnard] rejected their advice,

and that [he] instead directed trial counsel to pursue an innocence defense.”

Id. at *6 (citation to PCRA court opinion omitted).

Finding no merit to these claims, or any others raised by Kinnard on

appeal, we affirmed the PCRA court’s decision on October 23, 2023.

On May 13, 2024, Kinnard filed his second PCRA petition pro se raising

several claims, including layered claims of ineffective assistance of counsel for

failing to have Kinnard evaluated by an expert toxicologist. The PCRA court

appointed Kinnard counsel, who filed an amended PCRA petition on November

1, 2024. On December 5, 2024, the PCRA court issued a comprehensive

notice of its intent to dismiss Kinnard’s petition without a hearing pursuant to

Pennsylvania Rule of Criminal Procedure 907. The PCRA court issued a

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2 Kinnard also claimed the trial court erred by refusing to instruct the jury on the defense of involuntary intoxication. Kinnard, 307 A.3d 678 at *4. The prior panel found this claim waived, however, as it was raised for the first time on appeal. Id. (quoting Pa.R.A.P. 302(a) (“Issues not raised before the trial court are waived and cannot be raised for the first time on appeal.”)).

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supplemental opinion that same day in response to Dr. Guzzardi’s May 4, 2024

report, which the court stated it received appended to a pro se letter Kinnard

sent to the trial court that “expressed dismay that [appointed PCRA counsel]

did not pursue all of the arguments that Kinnard wished to proffer.” PCRA

Court Supplemental Opinion, 12/5/2024, at 13 (unnecessary capitalization

omitted). Though recognizing that neither counsel nor Kinnard argued that

this report, or the information contained therein, satisfied any exception to

the PCRA’s time bar, the PCRA court sua sponte extensively considered this

question, ultimately concluding that “Dr. Guzzardi’s report does not hurdle the

threshold requirement of the ‘newly[-]discovered fact’ exception for PCRA

untimeliness. See id. at 15-23. The court thus determined it would “stand[]

by everything written” in its original Rule 907 decision that Kinnard’s amended

petition was subject to dismissal without a hearing. Id. at 23.

Kinnard filed a response pro se, purporting to raise numerous additional

claims not raised by counsel in the amended petition. The trial court entered

an order and opinion on January 24, 2025, wherein it concluded that Kinnard’s

pro se filing constituted an impermissible attempt to raise new claims not

previously included in his amended PCRA petition and entered an order

dismissing his amended petition. Trial Court Opinion, 1/24/2025, at 5-6.

Counsel for Kinnard filed a motion for reconsideration on February 7,

2025, seeking the ability to file another amended PCRA petition on Kinnard’s

behalf. The PCRA court granted reconsideration and withdrew its January 24

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opinion and order. Therein, it cautioned Kinnard that no new issues not

previously contained in the first amended PCRA petition filed by counsel would

be considered. See PCRA Court Order, 2/12/2025.3 Counsel filed a second

amended PCRA petition on March 14, 2025, nonetheless asserting numerous

new claims, including a constitutional violation based upon the trial court’s

failure to instruct the jury on voluntary and involuntary intoxication, two

claims of trial court error, and fourteen claims of ineffectiveness of counsel.

See Amended PCRA Petition, 3/14/2025, ¶¶ 16-17. On March 21, 2025, the

PCRA court entered an order and opinion adopting its December 5, 2024

decision and dismissing Kinnard’s PCRA petition without a hearing.

Kinnard, through counsel, filed a notice of appeal. Subsequent to the

filing of the appeal, however, Kinnard requested to proceed pro se. Following

a hearing held pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa.

1998), the PCRA court granted his request and allowed counsel to withdraw.

Before we assess the merits of Kinnard’s claims, we must answer the

threshold question of whether his second PCRA petition was filed timely, or

alternatively, whether he satisfies an exception to the statutory time bar. See

3 Based upon the language of the February 12 order and the subsequent opinion issued in response to counsel’s second amended PCRA petition, it appears the PCRA court intended to allow counsel to file a response to its Rule 907 notice, not an amended PCRA petition. A PCRA court has no obligation to allow a petitioner to file an amended, serial PCRA petition. Commonwealth v. Keys, 328 A.3d 1141, 1149 (Pa. Super. 2024). Kinnard does not contest this aspect of the PCRA court’s decision on appeal, so we do not address this further.

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Commonwealth v. Brown, 141 A.3d 491, 499 (Pa. Super. 2016) (“Crucial

to the determination of any PCRA appeal is the timeliness of the underlying

petition. Thus, we must first determine whether the instant PCRA petition was

timely filed.”) (quotation marks and citation omitted). “The timeliness

requirement for PCRA petitions is mandatory and jurisdictional in nature, and

the court may not ignore it in order to reach the merits of the petition.” Id.

(quotation marks and citation omitted); see also Commonwealth v.

Fantauzzi, 275 A.3d 986, 994 (Pa. Super. 2022) (noting “the timeliness of a

PCRA petition is jurisdictional and that if the petition is untimely, courts lack

jurisdiction over the petition and cannot grant relief”). “The question of

whether a petition is timely raises a question of law, and where a petitioner

raises a question of law, our standard of review is de novo and our scope of

review is plenary.” Commonwealth v. Pew, 189 A.3d 486, 488 (Pa. Super.

2018).

All PCRA petitions, including second or subsequent petitions, must be

filed within one year of the date the judgment of sentence becomes final

unless the petitioner pleads and proves one of the exceptions to the timeliness

requirement. 42 Pa.C.S. § 9545(b)(1). These exceptions include:

(i) The failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;

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(ii) The facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or

(iii) The right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.

Id. Any PCRA petition invoking one of the exceptions listed above must be

filed within one year of the date the claim could have been presented. Id. §

9545(b)(2).

Kinnard’s judgment of sentence became final on June 10, 2019, after

the time to file a writ of certiorari in the United States Supreme Court expired.

Id. § 9545(b)(3) (stating “a judgment becomes final at the conclusion of

direct review, including discretionary review in the Supreme Court of the

United States and the Supreme Court of Pennsylvania, or at the expiration of

time for seeking review”). Therefore, to be timely, Kinnard’s PCRA petition

must have been filed on or before June 10, 2020. Kinnard’s present PCRA

petition, filed on May 13, 2024, is facially untimely.

The PCRA court found that Kinnard failed to raise any exception to the

PCRA’s time bar in his amended PCRA petition. PCRA Court Opinion,

12/5/2024, at 6.4 Our review of the record confirms this to be true. Although

4 The PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a) wherein it relied upon its December 5, 2024 opinion. See PCRA Court Opinion, 5/28/2025, at 5.

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counsel listed the time-bar exceptions in Kinnard’s amended PCRA petition

and the statutory requirements for their applicability, counsel made no

attempt to invoke one of the exceptions or make an argument that any applied

to Kinnard’s second PCRA petition. See Amended PCRA Petition, 3/14/2025,

¶¶ 8-13.

In his brief before this Court, Kinnard only states that Dr. Guzzardi’s

“expert report created a disputed factual issue[] not resolvable on the existing

record.” Kinnard’s Brief at 22 (unnecessary capitalization omitted). He makes

no claim that he satisfied any exception to the PCRA’s time bar. To the

contrary, he contends that he was not required to establish the newly

discovered fact exception for Dr. Guzzardi’s report because he “introduced” it

in this Court during the pendency of his first PCRA appeal.5 Id. at 23. He

then continues by addressing the elements of an after-discovered evidence

5 In his reply brief, Kinnard changes his tune and instead advances, for the first time, an argument that the information contained in Dr. Guzzardi’s report constitute newly-discovered facts. See Kinnard’s Reply Brief at 11-16. As we have previously recognized in a strikingly similar situation, “[t]here are two obvious problems …: (1) The claim was not raised in his PCRA petition, and thus, it is waived, and (2) an appellant cannot raise new issues in a reply brief.” Commonwealth v. Williams, 909 A.2d 383, 386 n.6 (Pa. Super. 2006) (internal citations omitted).

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claim pursuant to section 9543 of the PCRA. See id. at 23-25; see also 42

Pa.C.S. § 9543(a)(2)(vi).6

We reject Kinnard’s contention that he did not need to plead and prove

that Dr. Guzzardi’s expert report satisfied the newly-discovered fact exception

to the PCRA’s time bar. Although Kinnard contends that this was rendered

unnecessary by his introduction of Dr. Guzzardi’s opinion during the pendency

of his first PCRA appeal, he ignores the fact that the initial letter was not part

of his initial PCRA petition, having reportedly been authored on December 26,

2022—approximately three-and-a-half years after his judgment of sentence

became final. Moreover, this letter was not, in fact, introduced before this

Court, and the prior panel did not consider it (nor can we), because it was

6 As our Supreme Court has explained, the newly-discovered facts exception to the PCRA’s time bar is materially different from the substantive claim for relief based upon after-discovered evidence:

To qualify for an exception to the PCRA’s time limitations under subsection 9545(b)(1)(ii), a petitioner need only establish that the facts upon which the claim is based were unknown to him and could not have been ascertained by the exercise of due diligence. However, where a petition is otherwise timely, to prevail on an after-discovered evidence claim for relief under subsection 9543(a)(2)(vi), a petitioner must prove that (1) the exculpatory evidence has been discovered after trial and could not have been obtained at or prior to trial through reasonable diligence; (2) the evidence is not cumulative; (3) it is not being used solely to impeach credibility; and (4) it would likely compel a different verdict.

Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 2017) (citations omitted).

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never filed of record. See Commonwealth v. Nasir, 308 A.3d 812, 819 n.4

(Pa. Super. 2023) (“Under our Rules of Appellate Procedure, those documents

which are not part of the ‘official record’ forwarded to this Court are considered

to be non-existent.”) (citation omitted).

A more fundamental problem for Kinnard, however, is that Dr.

Guzzardi’s report, dated May 4, 2024, is also not of record. As the PCRA

court’s supplemental opinion recognizes, it was only presented to the PCRA

court via a letter that Kinnard authored pro se on November 18, 2024 and

sent directly to the PCRA court judge’s chambers while represented by

counsel. See Pro Se Letter, 11/18/2024; Supplemental PCRA Court Opinion,

12/5/2024, at 13. The law is clear: “hybrid representation is not permitted in

the Commonwealth, [and] our courts will not accept a pro se motion while an

appellant is represented by counsel; indeed, pro se motions have no legal

effect and, therefore, are legal nullities.” Commonwealth v. Williams, 241

A.3d 353, 354 n.1 (Pa. Super. 2020) (cleaned up).

The report was never presented to the PCRA court through Kinnard’s

amended counseled PCRA petitions or any other filing by counsel. As such,

Dr. Guzzardi’s expert opinion is not before this Court and cannot be a basis

for securing our jurisdiction to review the PCRA court’s decision concerning

this untimely PCRA petition.7

7 Thus, the PCRA court erred by considering Dr. Guzzardi’s report or issuing a substantive decision in response thereto.

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Kinnard raises additional claims regarding the failure of both trial and

initial PCRA counsel to have him evaluated by an expert. Kinnard’s Brief at

17, 30, 34. Kinnard is correct that a “PCRA petitioner may, after a PCRA court

denies relief, and after obtaining new counsel or acting pro se, raise claims of

PCRA counsel’s ineffectiveness at the first opportunity to do so, even if on

appeal.” Commonwealth v. Bradley, 261 A.3d 381, 401 (Pa. 2021),

(footnote omitted). Bradley, however, occurred in the context of a first,

timely PCRA petition. Id. at 384. We have held that “[n]othing in Bradley

creates a right to file a second [or subsequent] PCRA petition outside the

PCRA’s one-year time limit as a method of raising ineffectiveness of PCRA

counsel or permits recognition of such a right.” Commonwealth v. Stahl,

292 A.3d 1130, 1136 (Pa. Super. 2023); see also Commonwealth v. Laird,

331 A.3d 579, 583 (Pa. 2025) (holding “Bradley did not establish an equitable

exception to the PCRA’s time-bar” and “its rationale cannot be extended to

create one”). “Because courts lack jurisdiction to hear an untimely PCRA

petition, they necessarily lack jurisdiction to consider ancillary matters” like

ineffective assistance of counsel claims. Laird, 331 A.3d at 599.

Kinnard seeks to raise claims of ineffective assistance of counsel in an

untimely PCRA petition and fails to plead or prove any timeliness exception in

this regard. “Bradley expanded the opportunities afforded a petitioner to

raise ineffectiveness claims, albeit still requiring that the petitioner satisfy the

jurisdictional one-year time-bar requirement.” Commonwealth v.

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Branthafer, 315 A.3d 113, 123 (Pa. Super. 2024). Further, it is well-settled

law that “a claim of ineffective assistance of counsel does not save an

otherwise untimely petition for review on the merits.” Commonwealth v.

Fahy, 737 A.2 214, 223 (Pa. 1999). We therefore are unable to consider the

merits of these claims.

Finally, Kinnard argues that the PCRA court erred in dismissing his

petition without a hearing. Kinnard’s Brief at 20-21, 23, 25. We have

recognized:

The PCRA court has discretion to dismiss a petition without a hearing when the court is satisfied there are no genuine issues concerning any material fact, the defendant is not entitled to post- conviction collateral relief, and no legitimate purpose would be served by further proceedings. To obtain reversal of a PCRA court’s decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing.

Commonwealth v. Smith, 244 A.3d 13, 16 (Pa. Super. 2020) (quotation

marks and citation omitted).

Kinnard filed an untimely PCRA petition and failed to plead any exception

to statutory time bar. As such, the PCRA court had no jurisdiction to rule upon

the merits of the claims raised, and thus had no basis upon which to hold a

hearing. See Commonwealth v. Marshall, 947 A.2d 714, 723 (Pa. 2008)

(concluding that petitioner was not entitled to evidentiary hearing on an

untimely filed PCRA petition, which did not adequately allege any timeliness

exceptions).

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For that same reason, this Court lacks jurisdiction to consider the claims

he raises on appeal. We therefore affirm the PCRA court’s decision.

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 06/30/2026

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