J-S45012-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    SAHEED O. SAUNDERS,

                             Appellant                 No. 28 EDA 2019


              Appeal from the PCRA Order Entered March 28, 2018
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0009795-2008


BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED OCTOBER 21, 2019

        Appellant, Saheed O. Saunders, appeals nunc pro tunc from the post-

conviction court’s March 28, 2018 order denying his petition for relief filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

Additionally, Appellant’s counsel, Earl G. Kauffman, Esq., has filed a petition

to withdraw from representing Appellant, along with an Anders1 brief. While

a Turner/Finley2 no-merit letter is the appropriate filing when counsel seeks

to withdraw on appeal from the denial of PCRA relief, we will accept Attorney

Kauffman’s Anders brief in lieu of a Turner/Finley no-merit letter.       See
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   Anders v. California, 386 U.S. 738 (1967).

2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011)

(“Because an Anders brief provides greater protection to a defendant, this

Court may accept an Anders brief in lieu of a Turner/Finley letter.”) (citation

omitted). After careful review, we are constrained to dismiss this appeal and

grant counsel’s petition to withdraw.

      We need not set forth a detailed recitation of the facts of this case for

purposes of reviewing Appellant’s instant appeal. The PCRA court summarized

the procedural history, as follows:

            On March 8, 2013, following a jury trial before this [c]ourt,
      [Appellant] … was convicted of one count each of second[-]degree
      murder (18 Pa.C.S. § 2502(b)), conspiracy to commit robbery (18
      Pa.C.S. §§ 3701(a)(1)(i) [and] 903), robbery (18 Pa.C.S. §
      3701(a)(1)(i)), kidnapping (18 Pa.C.S. § 2901(a)(1)), and
      carrying a firearm without a license (18 Pa.C.S. § 6106(a)(1)).
      [Appellant] was found not guilty of one count of first[-]degree
      murder (18 Pa.C.S. § 2502(a)). The [c]ourt immediately imposed
      the mandatory sentence of life in prison for the murder charge (18
      Pa.C.S. § 1102(b)), with all other sentences to run concurrent to
      the murder charge. [Appellant] filed post-sentence motions,
      which the [c]ourt denied on June 28, 2013. [Appellant] was
      represented at trial and at sentencing by David Rudenstein,
      Esquire.

            On July 7, 2014, the Superior Court affirmed [Appellant’s]
      judgment of sentence. [Commonwealth v. Saunders, 105 A.3d
      783 (Pa. Super. 2014).] The Pennsylvania Supreme Court denied
      allocator on December 31, 2014.          [Commonwealth v.
      Saunders, 106 A.3d 725 (Pa. 2014).] [Appellant] then filed a pro
      se petition under the [PCRA] … on February 23, 2015. Mitchell
      Strutin, Esquire[,] was appointed to represent [Appellant] on
      August 5, 2015.

            On October 29, 2015, pursuant to [Turner/Finley],
      [Attorney] Strutin filed a letter stating there was no merit to
      [Appellant’s] claims for collateral relief. On November 3, 2015,
      the [c]ourt issued a notice pursuant to Pa.R.Crim.P. 907 … of its


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      intent to dismiss [Appellant’s] PCRA Petition without an
      evidentiary hearing.    [Appellant] filed a pleading styled as
      “Objections to Finley Letter” on November 20, 2015, which the
      [c]ourt deemed a response to the [Rule] 907 [n]otice. … On
      December 21, 2015, the [c]ourt formally dismissed [Appellant’s]
      PCRA petition and granted [Attorney] Strutin’s motion to withdraw
      his appearance.

PCRA Court Opinion, 4/6/16, at 1-2 (citation to record and footnote omitted).

      Appellant filed a timely, pro se appeal from the court’s December 21,

2015 order, arguing that his trial counsel acted ineffectively in failing to call

an alibi witness, Sherry Lockett, at trial. This Court concluded that Appellant

was entitled to an evidentiary hearing on that claim and, therefore, we vacated

the order denying his petition and remanded for further proceedings. See

Commonwealth        v.   Saunders,      No.   308   EDA    2016,    unpublished

memorandum at 4-6 (Pa. Super. filed April 6, 2017). We also directed the

PCRA court to appoint Appellant new counsel on remand, and to permit

counsel to file an amended PCRA petition on Appellant’s behalf. Id. at 7-8.

      On May 17, 2017, the court appointed Attorney Kauffman to represent

Appellant.   He filed an amended PCRA petition on Appellant’s behalf on

September 12, 2017. Therein, Attorney Kauffman reiterated that a hearing

was required on Appellant’s ineffectiveness claim regarding counsel’s failure

to call Lockett as an alibi witness.    Counsel also explained that Appellant

wished to assert that his mandatory sentence of life incarceration is illegal

under Miller v. Alabama, 567 U.S. 460, 479 (2012) (holding that “the Eighth

Amendment forbids a sentencing scheme that mandates life in prison without

possibility of parole for juvenile offenders”).   However, Attorney Kauffman


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stated that Appellant’s Miller claim was meritless because Appellant was 21

years old at the time of the murder.

      On March 28, 2018, the court conducted an evidentiary hearing at which

Sherry Lockett testified. Lockett stated that she was with Appellant on the

day of the murder. N.T. Hearing, 3/28/18, at 7. She claimed that he arrived

at her house at approximately 5 p.m. and she was physically present with him

until “about 7” when she “went upstairs to [her] bedroom.” Id. She testified

that she did not see him after 7 p.m.        Id.   Recognizing that the murder

occurred around 8 p.m., the court concluded that Locket’s testimony would

not have helped Appellant’s case, as she could not account for Appellant’s

whereabouts at the precise time of the crime. Id. at 33-35. Accordingly, the

court found that trial counsel was not ineffective for failing to call Lockett to

the stand, and it denied Appellant’s petition. Id. at 41-42.

      Appellant did not file a timely appeal. However, on August 20, 2018, he

filed a pro se notice of appeal that was docketed by this Court at 2559 EDA

2018. On October 3, 2018, Attorney Kauffman filed a petition to withdraw the

appeal, acknowledging that Appellant’s pro se appeal was untimely. Thus,

counsel requested that the appeal be withdrawn so he could file a PCRA

petition seeking the reinstatement of Appellant’s appeal rights. This Court

issued an order granting counsel’s petition to withdraw the appeal at 2559

EDA 2018 on November 1, 2018.

      On November 30, 2018, Attorney Kauffman filed a PCRA petition seeking

the reinstatement of Appellant’s right to appeal from the March 28, 2018

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order. Therein, counsel set forth the procedural history of the case, stated

that Appellant had “advised counsel he wished to appeal” from the March 28,

2018 order, and asked that the PCRA court reinstate Appellant’s right to do

so. On December 7, 2018, the PCRA court granted Appellant’s petition, and

Appellant filed the present, nunc pro tunc appeal on January 2, 2019.

      On February 26, 2019, Attorney Kauffman filed with this Court a petition

to withdraw as counsel and Anders Brief, which we will treat as a

Turner/Finley no-merit letter. Therein, counsel sets forth the three issues

Appellant seeks to raise on appeal, which counsel concludes are meritless, as

follows:

      1. The PCRA court’s dismissal of [] [A]ppellant’s PCRA [p]etition
      following a Superior Court remand for an evidentiary hearing of a
      particular alibi witness.

      2. [] [A]ppellant added three (3) alibi witnesses following the
      evidentiary hearing.

      3. Whether [] [A]ppellant should be resentenced as a juvenile
      when he was 21 years old at the time of the homicide.

Turner/Finley No-Merit Letter at 5.

      In Turner, our Supreme Court “set forth the appropriate procedures for

the withdrawal of court-appointed counsel in collateral attacks on criminal

convictions[.]” Turner, 544 A.2d at 927. The traditional requirements for

proper withdrawal of PCRA counsel, originally set forth in Finley, were

updated by this Court in Commonwealth v. Friend, 896 A.2d 607 (Pa.




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Super. 2006), abrogated by Commonwealth v. Pitts, 981 A.2d 875 (Pa.

2009),3 which provides:

       1) As part of an application to withdraw as counsel, PCRA counsel
       must attach to the application a “no-merit” letter[;]

       2) PCRA counsel must, in the “no-merit” letter, list each claim the
       petitioner wishes to have reviewed, and detail the nature and
       extent of counsel’s review of the merits of each of those claims[;]

       3) PCRA counsel must set forth in the “no-merit” letter an
       explanation of why the petitioner’s issues are meritless[;]

       4) PCRA counsel must contemporaneously forward to the
       petitioner a copy of the application to withdraw, which must
       include (i) a copy of both the “no-merit” letter, and (ii) a
       statement advising the PCRA petitioner that, in the event the trial
       court grants the application of counsel to withdraw, the petitioner
       has the right to proceed pro se, or with the assistance of privately
       retained counsel;

       5) the court must conduct its own independent review of the
       record in the light of the PCRA petition and the issues set forth
       therein, as well as of the contents of the petition of PCRA counsel
       to withdraw; and

       6) the court must agree with counsel that the petition is meritless.

Friend, 896 A.2d at 615 (footnote omitted).

       We have received Attorney Kauffman’s petition to withdraw and a brief

that we will treat as his no-merit letter. He, therefore, meets the first prong

of the above test. Counsel also sets forth each claim Appellant “wishes to

have reviewed, and detail[s] the nature and extent of counsel’s review of the
____________________________________________


3 In Pitts, our Supreme Court abrogated Friend “[t]o the extent Friend
stands for the proposition that an appellate court may sua sponte review the
sufficiency of a no-merit letter when the defendant has not raised such issue.”
Pitts, 981 A.2d at 879. In this case, Attorney Kauffman filed his petition to
withdraw and no-merit letter with this Court and, thus, our Supreme Court’s
holding in Pitts is inapplicable.

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merits of each of those claims[.]” Id. Attorney Kauffman explains why each

issue is meritless. See Turner/Finley No-Merit Letter at 11-15. Accordingly,

we find that Attorney Kauffman meets the second and third prongs of the

revised Finley test as set forth in Friend. In regard to the fourth prong of

the test for withdrawal, Attorney Kauffman properly forwarded to Appellant a

copy of his petition to withdraw and his no-merit letter. He has also advised

Appellant of his right to proceed pro se or retain private counsel.4

       Next, this Court typically conducts our own independent review of the

record to determine if the issues presented in Appellant’s PCRA petition are

indeed meritless. Here, however, we cannot undertake that assessment, as

we are constrained to conclude that we lack jurisdiction over Appellant’s

appeal under this Court’s recent decision in Commonwealth v. Ballance,

203 A.3d 1027 (Pa. Super. 2019). There, Ballance’s counsel filed an untimely

PCRA petition seeking the restoration of Ballance’s right to file a direct appeal.

The PCRA court granted that petition, and Ballance filed an appeal nunc pro

tunc. Before addressing the issues Ballance asserted, however, this Court sua
____________________________________________


4 The original letter to Appellant filed by Attorney Kauffman erroneously
framed Appellant’s ability to respond to his petition to withdraw and no-merit
letter as being contingent on this Court’s granting the petition to withdraw.
Accordingly, this Court issued a per curiam order on March 8, 2019, directing
Attorney Kauffman to provide us with a letter addressed to Appellant informing
of his immediate right to retain counsel or proceed pro se. On March 9, 2019,
Attorney Kauffman filed a revised letter that complies with the Turner/Finley
requirements. On June 6, 2019, Appellant filed a pro se brief, arguing that
Attorney Kauffman has rendered ineffective representation.




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sponte raised the question of whether “the PCRA court had jurisdiction to

restore [Ballance’s] rights to a direct appeal such that [his] appeal [was]

properly before us for review.” Id. at 1030-31. In so doing, the Ballance

panel observed that,

      [t]he timeliness of a PCRA petition is a jurisdictional requisite.
      Commonwealth v. Hackett, … 956 A.2d 978 ([Pa.] 2008), cert.
      denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009).
      “[T]he PCRA time limitations implicate our jurisdiction and may
      not be altered or disregarded in order to address the merits of the
      petition.” Commonwealth v. Laird, 201 A.3d 160, 161–62 …
      ([Pa. Super.] 2018) (citing Commonwealth v. Bennett, … 930
      A.2d 1264 ([Pa.] 2007)). In other words, Pennsylvania law makes
      clear no court has jurisdiction to hear an untimely PCRA petition.
      Commonwealth v. Robinson, … 837 A.2d 1157, 1161 ([Pa.]
      2003) [(emphasis added). The PCRA requires a petition, including
      a second or subsequent petition, to be filed within one year of the
      date the underlying judgment becomes final. 42 Pa.C.S.[] §
      9545(b)(1). A judgment of sentence is 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.” 42 Pa.C.S.[] §
      9545(b)(3).

Id. at 1031.

      The panel in Ballance observed that Ballance’s petition seeking the

restoration of his direct appeal rights had been filed more than two years after

his judgment of sentence had become final and, therefore, it was facially

untimely. Id. at 1032-33. However, Ballance’s court-appointed PCRA counsel

had erroneously “assumed the petition was timely” and, thus, counsel had not

attempted to plead and prove the applicability of any of the timeliness

exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii).        Id. at 1033.

Moreover, “neither the trial court nor the Commonwealth challenged or even


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addressed the jurisdictional matter.”   Id.   Nevertheless, we stressed that,

“[i]n the PCRA context, statutory jurisdiction cannot be conferred by silence,

agreement or neglect.” Id. Thus, we held that, because Ballance had failed

to satisfy any timeliness exception, “the PCRA court had no jurisdiction to

restore [his] direct appeal rights nunc pro tunc via the untimely petition[,]”

and this Court likewise had “no jurisdiction to entertain the appeal.”     Id.

(citations omitted).

      Unfortunately, we are bound by Ballance to dismiss Appellant’s appeal

for lack of jurisdiction. Here, Appellant’s judgment of sentence became final

on March 31, 2015, ninety days after our Supreme Court denied his petition

for allowance of appeal. See 42 Pa.C.S. § 9545(b)(3) (stating that a judgment

of sentence becomes final at the conclusion of direct review or the expiration

of the time for seeking the review); Commonwealth v. Owens, 718 A.2d

330, 331 (Pa. Super. 1998) (directing that under the PCRA, petitioner’s

judgment of sentence becomes final ninety days after our Supreme Court

rejects his or her petition for allowance of appeal since petitioner had ninety

additional days to seek review with the United States Supreme Court). Thus,

Attorney Kauffman’s November 30, 2018 petition seeking the restoration of

Appellant’s right to appeal from the court’s March 28, 2018 order dismissing

Appellant’s first, timely PCRA petition was facially untimely.        Attorney

Kauffman did not plead or prove the applicability of any timeliness exception.

Consequently, Ballance requires us to conclude that the PCRA court lacked

jurisdiction to restore Appellant’s right to file the present appeal, and we

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likewise lack jurisdiction to entertain it.5 In light of this disposition, we grant

Attorney Kauffman’s petition to withdraw.

       Appeal dismissed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/21/19




____________________________________________


5  The unjustified failure to file a requested appeal constitutes per se
ineffectiveness. See Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa.
1999). In Commonwealth v. Peterson, 192 A.3d 1123 (Pa. 2018), our
Supreme Court held that the petitioner’s discovery of his counsel’s per se
ineffectiveness constituted a newly discovered ‘fact’ that satisfied the
timeliness exception of section 9545(b)(1)(ii), as the petitioner had pled
applicability of the timeliness exception within 60 days of learning of his
counsel’s ineffectiveness, and he demonstrated that he could not have
discovered it sooner with the exercise of due diligence.

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