J-A10027-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ALI E. DAVIS : : Appellant : No. 1206 EDA 2020 Appeal from the PCRA Order Entered April 16, 2020 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0002141-2008 BEFORE: PANELLA, P.J., OLSON, J., and COLINS, J.* MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 16, 2021 Appellant, Ali E. Davis, appeals from the April 16, 2020 order1 dismissing his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Counsel for Appellant, Robert C. Patterson, Esquire (“Attorney Patterson”), filed a Turner/Finley2 no-merit brief and a petition ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

Notice of Appeal, 5/28/20. A review of the record demonstrates that Appellant filed the PCRA petition that is the subject of the instant appeal on November 21, 2018, and that the order denying that petition was entered April 16, 2020.

The caption has been corrected accordingly. Moreover, because the pro se filing of a notice of appeal protects a petitioner’s constitutional right to an appeal, such a pro se filing from a litigant who is represented by counsel does not offend the considerations of hybrid representation. See Commonwealth v. Williams, 241 A.3d 354, 355 (Pa. Super. 2020).

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to withdraw as counsel. We grant counsel’s petition to withdraw and affirm the April 16, 2020 order.

A prior panel of this Court summarized the factual and procedural history of this case as follows: On November 27, 2007, Appellant along with three co-defendants entered the victims' residence in the City of Easton, Northampton County, Pennsylvania. Appellant transported his co-defendants to the residence in his mother's vehicle. Appellant, along with his three co-defendants[,] entered the residence. Testimony established that three [members] of this group converged upon an upstairs bedroom where they open[ed] fire[] in an “execution style” killing [on] three individuals, one adult male and two adult females. The testimony adduced at trial indicated that shortly before Appellant entered the residence, he was [given] a handgun of the same caliber that was used in the “execution style” homicides.

Following a jury trial, Appellant was convicted on January 25, 2010[,] of three counts of first[-]degree murder, 18 Pa.C.S.A. § 2502(a) and [three counts of] conspiracy to commit [first-degree] murder, 18 Pa.C.S.A. § 903(a)(1).[3] The jury did not find the necessary support for the imposition of the death penalty. As a result, the trial court sentenced Appellant on January 27, 2010[,] to three

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mandatory life sentences of incarceration without the possibility of parole to run consecutive to each other.

Appellant filed post-sentence motions which were subsequently denied by the trial court. Thereafter, Appellant filed a direct appeal to this Court on August 9, 2010. [This Court] affirmed Appellant's judgment of sentence on July 18, 2011. Commonwealth v. Davis, 32 A.3d 272 (Pa. Super. 2010) (unpublished memorandum).

Appellant's petition for allowance of appeal was denied by [our] Supreme Court [] on May 30, 2012. Commonwealth v. Davis, 47 A.3d 844 (Pa. 2012). On July 30, 2012, Appellant filed a [PCRA petition, his first,] wherein he raised [a claim of] ineffectiveness of trial counsel. The PCRA court appointed Christopher Brett, Esquire [(“Attorney Brett”)] to represent Appellant in his PCRA proceedings. A PCRA hearing was held on January 15, 2014[, and January 22, 2014]. On February 17, 2014, the PCRA court issued an order and accompanying statement of reasons dismissing Appellant's PCRA petition. A copy of the order dismissing Appellant's PCRA petition was “hand[-]delivered” to Attorney Brett, counsel of record for Appellant[,] on February 18, 2014. No timely appeal was filed by Attorney Brett on behalf of Appellant following the dismissal of his PCRA petition.

PCRA Court Opinion, 3/12/2015, at 1–3 (record citations omitted).

Thereafter, Appellant pursued reinstatement of his direct appeal rights with both the PCRA court and this Court. The PCRA court appointed [James F. Brose, Esquire (“Attorney Brose”) as] counsel to represent Appellant. Eventually, on January 15, 2016, the PCRA court entered an order reinstating Appellant's right to appeal from the [February 17, 2014 order denying] his first PCRA petition[.]

Commonwealth v. Davis, 2017 WL 815395, at *1-2 (Pa. Super. filed March 1, 2017) (unpublished memorandum) (original brackets, ellipsis, and footnote omitted).

On March 1, 2017, this Court affirmed the February 17, 2014 order dismissing Appellant’s PCRA petition and granted Attorney Brose’s petition to -3- J-A10027-21

withdraw as counsel for Appellant. Id. at *1. Appellant did not seek discretionary review by our Supreme Court.

On November 21, 2018, Appellant filed pro se a PCRA petition, his second.4 On November 30, 2018, the PCRA court appointed Talia Mazza, Esquire (“Attorney Mazza”) to represent Appellant and scheduled an issue-framing conference for January 2019.5 On December 21, 2018, however, the PCRA court provided Appellant notice, pursuant to Pa.R.Crim.P. 907, of its intent to dismiss his PCRA petition without a hearing within 20 days of said order. On January 6, 2019, Appellant filed pro se his objections to the PCRA court’s notice of intent to dismiss his PCRA petition. On January 30, 2019, the PCRA court dismissed Appellant’s PCRA petition as time-barred pursuant to 42 Pa.C.S.A. § 9545(b). Appellant filed pro se a notice of appeal.

On October 4, 2019, this Court vacated the January 30, 2019 order dismissing Appellant’s PCRA petition and remanded the case “for the PCRA court to determine the status of [Appellant’s] representation in these proceedings.”

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Commonwealth v. Davis, 2019 WL 4899219, at *3 (Pa. Super. filed October 4, 2019) (unpublished memorandum).

On December 30, 2019, Attorney Mazza filed a petition to withdraw as Appellant’s counsel and a Turner/Finley no-merit letter in which Attorney Mazza concluded that there existed no meritorious issues to raise on Appellant’s behalf. On January 10, 2020, the PCRA court granted Attorney Mazza’s petition to withdraw and appointed Tyree A. Blair, Esquire (“Attorney Blair”) as PCRA counsel for Appellant. In the same order, the PCRA court granted Attorney Blair 20 days in which to file an amended PCRA petition.6 On January 22, 2020, the PCRA court appointed Attorney Patterson as PCRA counsel due to a conflict Attorney Blair had with representing Appellant.

On February 14, 2020, the PCRA court provided Appellant notice, pursuant to Rule 907, of its intent to dismiss his PCRA petition without a hearing because the petition was untimely and without exception pursuant to Pa.C.S.A. § 9545(b). On March 3, 2020, Appellant filed pro se his ____________________________________________

PCRA Court Order, 1/10/20, at 3 (extraneous capitalization omitted).

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objections to the PCRA court’s notice of its intent to dismiss his PCRA petition.

On March 25, 2020, Attorney Patterson submitted a Turner/Finley no-merit letter in which Attorney Patterson concluded that Appellant’s November 21, 2018 PCRA petition was untimely and without exception.7 In his no-merit letter, Attorney Patterson proffered that the PCRA court was without jurisdiction to address the merits of the instant PCRA petition because the petition was untimely and without exception. Attorney Patterson did not file a petition with the PCRA court seeking to withdraw as Appellant’s counsel. On April 16, 2020, the PCRA court dismissed Appellant’s PCRA petition as untimely and without exception. On May 28, 2020, Appellant filed pro se a notice of appeal.8 On June 3, 2020, the PCRA court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

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Appellant filed pro se his Rule 1925(b) statement on June 22, 2020.9 The PCRA court subsequently filed its Rule 1925(a) statement on June 24, 2020.

On November 23, 2020, Attorney Patterson filed a Turner/Finley brief with this Court in which Attorney Patterson reiterates that Appellant’s PCRA petition is untimely and without exception and, therefore, failed to invoke the jurisdiction of the PCRA court, as well as this Court. Turner/Finley Brief at 8. On November 30, 2020, Attorney Patterson filed a petition to withdraw as Appellant’s counsel, which this Court denied without prejudice because Attorney Patterson failed to include with his petition “proof of the notice provided to Appellant[] informing him of his right to retain counsel or proceed pro se[.]”10 See Petition to Withdraw as Counsel, 11/30/20; see also Per ____________________________________________

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Curiam Order, 12/14/20. On January 4, 2021, Attorney Patterson filed with this Court a copy of a letter addressed to Appellant in which Attorney Patterson advised Appellant, “[i]f I am granted leave of court to withdraw, you may still proceed with the PCRA petition, however, not with court[-]appointed counsel.

You may proceed pro se or with retained counsel.” See Letter from Patterson to Appellant, 1/4/21. In a January 11, 2021 per curiam order, this Court directed Attorney Patterson to file a copy of a letter advising Appellant “of his immediate right to proceed pro se or with privately[-]retained counsel” in accordance with Commonwealth v. Muzzy, 141 A.3d 509 (Pa. Super. 2016).11 Per Curiam Order, 1/11/21 (emphasis omitted). On February 16, 2021, Attorney Patterson filed a copy of a letter addressed to Appellant, dated January 12, 2021, which stated, inter alia, “as I have filed an [a]pplication to [w]ithdraw my appearance in your case, you have the immediate right to proceed in the appeal pro se or through privately-retained counsel.” See Letter from Patterson to Appellant, 2/16/21. Appellant has not filed a response. ____________________________________________

that the petitioner received a copy of the Turner/Finley no-merit brief, a copy of counsel’s petition to withdraw, and a statement advising the petitioner of the right to proceed pro se or by new counsel. Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007).

Muzzy, 141 A.3d at 512.

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The Turner/Finley brief raises the following issue for our review: “Is Appellant’s appeal without merit because his PCRA petition is untimely?”

Turner/Finley Brief at 3.12 Preliminarily, we address counsel’s Turner/Finley brief and accompanying petition to withdraw as counsel. When PCRA counsel is of the opinion that a petitioner’s appeal is without merit and counsel seeks to withdraw, Turner/Finley counsel must review the case zealously [and] then submit a no-merit [brief] to this Court, detailing the nature and extent of counsel's diligent review of the case, listing the issues which the petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw. Counsel must also send to the petitioner: (1) a copy of the no-merit []brief; (2) a copy of counsel's petition to withdraw; and (3) a statement advising petitioner of the [immediate] right to proceed pro se or by new counsel.

Wrecks, 931 A.2d at 721 (quotation marks, citations, and original paragraph formatting omitted). If counsel satisfies the technical requirements of Turner/Finley, then this Court must conduct its own review of the merits of the case. Id. If this Court agrees with counsel that the claims are without merit, then counsel will be permitted to withdraw. Id. Instantly, we determine that Attorney Patterson substantially complied with the requirements of Turner/Finley. The Turner/Finley brief details ____________________________________________

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that Attorney Patterson conducted a review of Appellant’s case, including Appellant’s claim of ineffective assistance of trial counsel, but ultimately determined that the PCRA court was without jurisdiction to address Appellant’s claim because his PCRA petition was patently untimely and without exception.

Specifically, Attorney Patterson highlights Appellant’s argument that our Supreme Court’s decision in Commonwealth v. Fulton, 179 A.3d 475 (Pa. 2018) created a new constitutional right that applied retroactively and, therefore, satisfied the after-recognized constitutional right exception to the PCRA’s jurisdictional time-bar under 42 Pa.C.S.A. § 9545(d)(1)(iii). Attorney Patterson argues, however, that Appellant’s “reliance on [] Fulton, supra, does not satisfy the requirements of the [after-recognized constitutional right] exception to an untimely [PCRA] petition.” Turner/Finley Brief at 8.

Attorney Patterson provided Appellant with a copy of his Turner/Finley no-merit brief and a copy of his petition to withdraw as counsel, as demonstrated by his January 12, 2021 letter to Appellant. Moreover, Attorney Patterson advised Appellant that he had the immediate right to proceed in the appeal pro se or through privately-retained counsel. As counsel substantially complied with the Turner/Finley requirements to withdraw from representation, we now review whether the PCRA court correctly dismissed Appellant’s PCRA petition as untimely and without a valid exception.

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, - 10 - J-A10027-21

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).

Our Supreme Court has instructed that the timeliness of a PCRA petition is jurisdictional. If a PCRA petition is untimely, courts lack jurisdiction over the petition. Commonwealth v. Wharton, 886 A.2d 1120, 1124 (Pa. 2005); see also Commonwealth v. Callahan, 101 A.3d 118, 121 (Pa. Super. 2014) (holding, courts do not have jurisdiction over an untimely PCRA petition). To be timely filed, a PCRA petition, including second and subsequent petitions, must be filed within one year of the date a petitioner’s judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). “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 the time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).

The PCRA’s jurisdictional time restriction is constitutionally sound.

Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa. 2004).

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Here, Appellant was sentenced on January 27, 2010. This Court affirmed his judgment of sentence on July 18, 2011, and our Supreme Court subsequently denied his petition for allowance of appeal on May 30, 2012.

Therefore, Appellant’s judgment of sentence became final on August 28, 2012, upon expiration of the time in which to seek discretionary review with the Supreme Court of the United States. U.S. Sup. Ct. R. 13(1) (stating, “A petition for 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 the entry of the order denying discretionary review.”); see also 42 Pa.C.S.A. § 9545(b)(3).

Consequently, Appellant’s instant PCRA petition filed on November 18, 2018, more than six years after his judgment of sentence became final, is patently untimely.

If a PCRA petition is untimely filed, the jurisdictional time-bar can only be overcome if the petitioner alleges and proves one of the three statutory exceptions, as set forth in 42 Pa.C.S.A. § 9545(b)(1). Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017). The three narrow statutory exceptions to the one-year time-bar are as follows: “(1) interference by government officials in the presentation of the claim; (2) newly[-]discovered facts; and (3) an after[-]recognized constitutional right.” Commonwealth v. Brandon, 51 A.3d 231, 233-234 (Pa. Super. 2012), citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii).

A petition invoking an exception to the jurisdictional time-bar must be filed

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within one year of the date that the claim could have been presented.13 42 Pa.C.S.A. § 9545(b)(2). If a petitioner fails to invoke a valid exception to the PCRA time-bar, courts are without jurisdiction to review the petition and provide relief. Spotz, 171 A.3d at 676.

Here, Appellant asserts that our Supreme Court’s decision in Fulton, supra, constituted a newly-discovered fact that satisfies the exception under Section 9545(b)(1)(ii) because it was previously unknown to Appellant.

Appellant’s PCRA Petition, 11/21/18, at ¶7. Appellant further asserts that the Fulton Court created a new constitutional right, namely that the Fourth Amendment of the United States Constitution protects a defendant against unlawful searches and seizures of his, or her, cellular telephone by requiring a police officer to obtain a warrant in order to conduct a lawful search. 14 Id. ____________________________________________

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. CONST. amend. IV.

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at ¶8. Appellant contends that the new constitutional right purportedly created by the Fulton Court applied retroactively and, therefore, the evidence obtained from a search of his cellular telephone should have been suppressed.

Id. at ¶11.

A “PCRA petitioner bears the burden of proving the applicability of one of the exceptions” to the jurisdictional time-bar. Spotz, 171 A.3d at 678. The newly-discovered facts exception “renders a petition timely when the petitioner establishes that 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.” Commonwealth v. Small, 238 A.3d 1267, 1271 (Pa. 2020) (original quotation marks omitted). Our Supreme Court recently held that a judicial decision does not constitute a “fact” for purposes of the newly-discovered facts exception.15 Reid, 235 A.3d at 1146. Consequently, Appellant’s argument that our Supreme Court’s decision in Fulton, supra, satisfies the newly-discovered facts exception is without merit.

In order to invoke the after-recognized constitutional right exception under Section 9545(b)(1)(iii), the petitioner must demonstrate that 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 ____________________________________________

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time[-]period provided in this section and has been held by that court to apply retroactively.” 42 Pa.C.S.A. § 9545(b)(1)(iii). In Fulton, our Supreme Court reiterated that, a law enforcement officer violates a defendant’s Fourth Amendment Right against unlawful searches and seizures if the officer fails to first obtain a search warrant prior to accessing and obtaining information from the defendant’s cellular telephone. Fulton, 179 A.3d at 489. The Fulton Court did not hold that its decision retroactively applied, as is required by the after-recognized constitutional right exception.16 Id. at 496. Consequently, Appellant’s assertion that this judicial decision announced an after-recognized constitutional right, thereby establishing an exception to the jurisdictional time-bar, is without merit.

Based upon our review of the record, we concur that Appellant’s PCRA petition is untimely and without an exception. Therefore, the PCRA court lacked jurisdiction to address the merits of Appellant’s claim, and we may not address it on appeal. Accordingly, we grant counsel’s petition to withdraw and affirm the April 16, 2020 order dismissing Appellant’s PCRA petition.

Petition to withdraw granted. Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/16/2021

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