J-S74012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

BRAHEEM HAYWARD

                            Appellant                   No. 726 EDA 2016


                  Appeal from the PCRA Order February 5, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0008972-2008


BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                      FILED OCTOBER 12, 2016

        Appellant appeals from the order entered in the Court of Common

Pleas of Philadelphia County dismissing his “Motion for a New Trial Based

Upon After-Discovered Evidence; Alternatively, for Post Conviction Collateral

Relief; or Alternatively, for a Writ of Habeas Corpus,” which the lower court

treated as a first petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.           Appellant’s court-appointed PCRA

counsel has filed a petition to withdraw his representation, along with a




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*
    Former Justice specially assigned to the Superior Court.
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Turner/Finley “no-merit” letter.1 We grant counsel’s petition to withdraw

his representation and affirm the PCRA court’s order.

        The relevant facts and procedural history are as follows: On March 4,

2009, following a bench trial, Appellant was convicted of possession with the

intent to deliver a controlled substance (“PWID”), possession of a controlled

substance, and possession of marijuana.2         On February 2, 2010, the trial

court sentenced Appellant to one year to two years in prison for PWID. The

trial court imposed no further penalty for the remaining convictions.

Appellant filed neither post-sentence motions nor a direct appeal.

        On September 26, 2014, Appellant, who was represented by the Public

Defender’s Office, filed a counseled “Motion for a New Trial Based Upon

After-Discovered Evidence; Alternatively, for Post Conviction Collateral

Relief; or Alternatively, for a Writ of Habeas Corpus.”      Therein, Appellant

contended he was entitled to a new trial on the basis that five or six “critical

police officers” involved in Appellant’s case were indicted by the federal

government on July 30, 2014, and charged with various crimes.

        The lower court treated Appellant’s petition under the auspices of the

PCRA and issued notice of its intent to dismiss the petition without an

evidentiary hearing.      Appellant did not respond, and by order entered on
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1
  Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
2
    35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(31), respectively.



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February 5, 2016, the PCRA court dismissed Appellant’s petition.            This

timely, counseled appeal followed. Thereafter, the PCRA court permitted the

Public Defender’s Office to withdraw from Appellant’s case, but appointed

new counsel, John Belli, Esquire, to represent Appellant on appeal.         The

PCRA court directed Appellant to file a Pa.R.A.P. 1925(b) statement, and

Attorney Belli filed a statement noting his intent to seek to withdraw on

appeal. Attorney Belli additionally noted that Appellant requested he raise

the following issue:

             The PCRA court erred by denying [Appellant] a hearing and
      PCRA relief on his claim alleging that he was entitled to a new
      trial on account of newly-discovered evidence predicated on the
      arrest of officers for crimes including the fabrication of evidence
      who were possibly responsible for [Appellant’s] arrest and
      conviction.

Appellant’s Pa.R.A.P. 1925(b) statement, filed 4/12/16.

      The PCRA court filed a Pa.R.A.P. 1925(a) opinion indicating that it

dismissed Appellant’s petition on the basis that, because Appellant was no

longer serving a sentence of imprisonment, probation, or parole for the

instant crimes, he was not entitled to relief under the PCRA. Thereafter, on

May 2, 2016, Attorney Belli filed in this Court a petition seeking to withdraw

his representation, along with a Turner/Finley “no-merit” letter.

      At the outset, we conclude the PCRA court properly treated Appellant’s

instant petition under the auspices of the PCRA. The PCRA provides: “The

action established in this subchapter shall be the sole means of obtaining

collateral relief and encompasses all other common law and statutory

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remedies for the same purpose that exist when this subchapter takes effect,

including habeas corpus[.]” 42 Pa.C.S.A. § 9542. Thus, where a petitioner’s

claim is cognizable under the PCRA, regardless of the title given to the

petition, the Court must analyze the petition under the auspices of the PCRA.

Commonwealth v. Taylor, 65 A.3d 462, 465-55 (Pa.Super. 2013).

        In his instant petition, Appellant sought a new trial based on alleged

after-discovered evidence of police misconduct.       This claim falls under the

auspices of the PCRA. 42 Pa.C.S.A. § 9543(a)(2)(vi); Pa.R.Crim.P. 720 cmt.

(stating that “after-discovered evidence discovered after completion of the

direct appeal process should be raised in the context of the PCRA[ ]”).

Accordingly, the PCRA court properly treated Appellant’s “Motion for a New

Trial   Based   Upon   After-Discovered   Evidence;    Alternatively,   for   Post

Conviction Collateral Relief; or Alternatively, for a Writ of Habeas Corpus” as

a PCRA petition.

        With regard to petitions filed under the PCRA, “[o]ur standard of

review of the denial of PCRA relief is clear; we are limited to determining

whether the PCRA court’s findings are supported by the record and without

legal error.”      Commonwealth v. Wojtaszek, 951 A.2d 1169, 1170

(Pa.Super. 2008) (quotation and quotation marks omitted).

        Before we proceed to review the merits of the issue presented in PCRA

counsel’s Turner/Finley brief, we must determine whether counsel has

satisfied certain procedural requirements to withdraw his representation.


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      Counsel petitioning to withdraw from PCRA representation...must
      review the case zealously. [PCRA] counsel must then submit a
      “no-merit” letter to the trial court, or brief on appeal to this
      Court, detailing the nature and extent of counsel's diligent
      review of the case, listing the issues which 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” letter/brief; (2) a copy of counsel's petition to withdraw;
      and (3) a statement advising petitioner of the right to proceed
      pro se or by new counsel.

      Where counsel submits a petition and “no-merit” letter
      that...satisfy the technical demands of Turner/Finley, the
      court—trial court or this Court—must then conduct its own
      review of the merits of the case. If the court agrees with
      counsel that the claims are without merit, the court will permit
      counsel to withdraw and deny relief.

Commonwealth v. Walters, 135 A.3d 589, 591 (Pa.Super. 2016)

(quotations omitted).

      Instantly, we determine that PCRA counsel has complied with the

procedural requirements of Turner/Finley.         Specifically, PCRA counsel’s

“no-merit” letter and petition to withdraw detail the nature and extent of

PCRA counsel’s review, address the claim raised in Appellant’s PCRA petition,

and determine that the issue lacks merit and is frivolous since Appellant,

who has completed his sentence, is not eligible for relief.     PCRA counsel

indicated that, after his own independent review of the record, he could not

identify any meritorious issues that he could raise on Appellant’s behalf to

overcome his statutory ineligibility.    Counsel also provided this Court with

proof that he sent Appellant his petition to withdraw, along with his



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Turner/Finley “no-merit” letter, and instructed him that he had the right to

retain private counsel or proceed pro se.3 As counsel has complied with the

Turner/Finley requirements to withdraw his representation, we must now

determine whether the PCRA court correctly dismissed Appellant’s PCRA

petition on the basis that he was ineligible for relief.

        “Eligibility for relief under the PCRA is dependent upon the petitioner

[pleading and proving by a preponderance of the evidence that he is]

currently serving a sentence of imprisonment, probation, or parole for a

crime.” Commonwealth v. Turner, 622 Pa. 318, 80 A.3d 754, 761–62

(2013). See 42 Pa.C.S.A. § 9543(a)(1)(i).          As our Supreme Court has

explained, as soon as his sentence is completed, a PCRA petitioner becomes

ineligible for relief.   Commonwealth v. Ahlborn, 548 Pa. 544, 699 A.2d

718, 720 (1997).

        In the case sub judice, Appellant was sentenced on February 1, 2010,

to one to two years in prison, and he completed his sentence on January 31,

2012.     Accordingly, when Appellant filed his current petition on September

26, 2014, he was not “serving a sentence of imprisonment, probation, or

parole” for the crimes at issue; and thus, the PCRA court properly ruled that

Appellant could not obtain relief under the PCRA. Therefore, we affirm the



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3
    Appellant has filed no response.



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PCRA court’s order dismissing Appellant’s petition, and we grant court-

appointed counsel’s petition to withdraw his representation.

     Petition to Withdraw Granted; Order Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/12/2016




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