J-S41012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ORLANDO ROSADO                             :
                                               :
                       Appellant               :   No. 2503 EDA 2017

                   Appeal from the PCRA Order August 3, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0010509-2012


BEFORE:      GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                            FILED JULY 25, 2018

       Appellant, Orlando Rosado, appeals from the order entered in the Court

of Common Pleas of Philadelphia County dismissing his first petition filed

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

9546, on the basis it was untimely filed. In addition, appointed PCRA counsel

has filed with this Court a petition to withdraw his representation and an

Anders brief.1 After a careful review, we grant counsel’s petition for leave to

withdraw, and we affirm the order dismissing Appellant’s PCRA petition.


____________________________________________


1 PCRA counsel filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), instead of a Turner/Finley brief, which is the appropriate filing in
the PCRA context. See Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
However, “[b]ecause an Anders brief provides greater protection to a
defendant, this Court may accept an Anders brief in lieu of a Turner/Finley


____________________________________
* Former Justice specially assigned to the Superior Court.
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       The lower court has set forth the facts underlying Appellant’s convictions

as follows:

             In May of 2012, [Appellant] and Crystal Miller had been
       paramours for about six years. The couple lived. . .in Philadelphia
       with their two children, [including the victim who was eleven
       months old]. Both [Appellant] and Miller had been addicted to
       heroin in the past. For about the same past six years, [Appellant]
       and Miller had been participating in methadone programs to
       manage their heroin addictions. In [Appellant’s] program[,] he
       took doses of methadone at a clinic; however, [Appellant] had
       admitted to Miller that at times he would buy methadone on the
       street. Although Miller believed that [Appellant] had stopped
       using heroin, about a year prior to [the victim’s] death,
       [Appellant] had secretly begun using heroin again.
              On May 10, 2012, at approximately 7:00 p.m., [Appellant]
       was present inside [his residence] with [the victim] while Miller
       attended church. Miller returned to the apartment at around 9:00
       p.m. and checked on [the victim] who was sleeping in the bassinet
       in their living room. At approximately 10:00 p.m., after putting
       [their other child] to bed, Miller went to sleep in her bedroom,
       while [Appellant] cared for [the victim] who was sleeping in the
       living room.
             On May 11, 2012, at about 3:00 a.m., [Appellant] made a
       bottle of baby formula and fed [the victim]. At approximately
       6:30 a.m., Miller awoke when she heard [Appellant] yell, “call 9-
       1-1-, call 9-1-1.” Miller observed [the victim] limp and
       unresponsive in the bassinet, along with vomit and a piece of
       grape. At around 7:00 a.m., Mr. Giovanni Nieves, as he normally
       did, arrived at [Appellant’s] home to transport him to the
       methadone clinic. [Appellant] came outside with [the victim] in
       his arms and they drove to the hospital instead of waiting for the
       ambulance that had been called.          While en route, they
       encountered the ambulance, which took [the victim] to the


____________________________________________


brief.” Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa.Super. 2011)
(citation omitted). We will refer to counsel’s erroneously titled Anders brief
for Appellant as a Turner/Finley brief. Appellant has neither responded to
the petition to withdraw as counsel nor retained alternate counsel for this
appeal.

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     hospital. At 7:14 a.m., [the victim] was pronounced dead at St.
     Christopher’s Hospital for Children.
           Lisa Mundy, the Laboratory Supervisor for the Medical
     Examiner’s Office and an expert in chemistry and forensic
     toxicology, testified to the tests performed by the Medical
     Examiner’s Office on the [victim’s] urine, liver, and blood, as well
     as on the contents of the bottle given to the [victim]. The bottle
     [Appellant] gave the [victim] contained a methadone
     concentration of 230 nanograms per milliliter and 6-
     acetlmorphine, a metabolite of heroin. When heroin metabolizes
     it breaks down into 6-acetylmorphine and morphine.             Both
     methadone and EDDP, a metabolite for methadone, were found in
     the [victim’s] liver. The [victim’s] cardiac blood contained a
     methadone concentration of 320 micrograms per liter.
            After obtaining a presumptive positive for opiates in the
     [victim’s] urine, the Office of the Medical Examiner requested NMS
     Labs perform tests on the [victim’s] urine and blood as NMS Labs
     could more accurately detect opiates.           According to tests
     performed by NMS Labs, the [victim’s] urine contained twenty-
     three nanograms per milliliter of free morphine, a metabolite of
     heroin. No free morphine was found in the blood.
            Dr. Gary L. Collins, the Deputy Chief Medical Examiner and
     an expert in forensic pathology, performed the autopsy on the
     [victim] and used the test results from the Medical Examiner’s
     Office and NMS Labs. The results of the tests were consistent with
     the [victim] having consumed heroin and methadone. According
     to Dr. Collins the results were inconsistent with the [victim]
     ingesting a trace amount of the drugs. In other words, the results
     were inconsistent with heroin being passed from the hands of the
     person who made the bottle, but instead were consistent with
     heroin and morphine being in the liquid in the bottle. Dr. Collins
     concluded the [victim’s] manner of death was homicide and the
     cause of death was drug intoxication.
           On May 11, 2012, and May 22, 2012, [Appellant] gave
     interviews to the police in which he insisted that he was unaware
     of how methadone entered the [victim’s] body. [Appellant]
     suggested that the victim may have found a dropped methadone
     pill. On June 4, 2012, Detective Meissler conducted a third
     interview with [Appellant]. This time, [Appellant] attempted to
     blame his [six-year-old] daughter [] for her younger brother’s
     death, saying that sometimes she was jealous [of] him. Later in
     the interview, [Appellant] admitted that on the night of the


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       murder he was under the influence of heroin, having injected
       about eight bags.    [Appellant] explained that he kept the
       methadone in a plastic bottle and claimed that he mistook the
       methadone for water and put it in the baby’s bottle. Based on
       these statements [Appellant] was arrested.

PCRA Court Opinion, filed 8/3/17, at 2-3 (citation omitted).

       Represented by counsel, Appellant proceeded to a bench trial, at the

conclusion of which the trial court convicted him of third-degree murder and

endangering the welfare of a child (“EWOC”). On September 30, 2013, the

trial court sentenced Appellant to fifteen years to forty years in prison for

third-degree murder and one year to two years in prison for EWOC; the

sentences to run concurrently.

       Appellant filed a timely, counseled post-sentence motion, which the trial

court denied on November 18, 2013.             Thereafter, Appellant filed a timely,

counseled notice of appeal; however, on May 15, 2014, this Court dismissed

Appellant’s direct appeal due to counsel’s failure to file an appellate brief.

       On December 21, 2016, Appellant filed a pro se PCRA petition2 in which

he challenged the sufficiency of the evidence supporting his convictions and

requested his direct appeal rights be reinstated nunc pro tunc due to defense


____________________________________________


2 Although Appellant’s pro se PCRA petition was time-stamped on December
29, 2016, under the prisoner mailbox rule, we shall deem it to have been filed
when Appellant handed it to prison authorities on December 21, 2016. See
Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (Pa.Super. 2006) (noting
that pursuant to the prisoner mailbox rule a document is deemed filed when
placed in the hands of prison authorities for mailing).


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counsel’s ineffectiveness in failing to file an appellate brief on direct appeal.

Appellant averred that:

      When [direct appeal] counsel failed to respond to letters wrote to
      him by [Appellant] on 10/31/16 [and] 11/14/16 asking what the
      status of the case was, [Appellant] had his family go online and
      copy the docket sheet [for his case] and discovered that [direct
      appeal] counsel [] ha[d] abandoned the direct appeal for failure
      to file a brief[.]

Appellant’s Pro Se PCRA Petition, filed 12/21/16, at 3.

      Subsequently, the PCRA court appointed counsel to represent Appellant,

and on May 31, 2017, counsel filed an amended PCRA petition. Therein, PCRA

counsel sought the reinstatement of Appellant’s direct appeal rights nunc pro

tunc on the basis direct appeal counsel was per se ineffective in failing to file

a brief on behalf of Appellant.   PCRA counsel recognized Appellant’s PCRA

petition was untimely filed, but he averred Appellant was entitled to the

“newly-discovered    facts”   timeliness    exception     of   42   Pa.C.S.A.   §

9545(b)(1)(ii). In this regard, PCRA counsel averred that, “despite repeated

letters to his appellate counsel, Petitioner did not learn of the aforementioned

dismissal by [the] Superior Court until after November 14, 2016.” Counseled

PCRA Petition, filed 5/31/17, at 4.

      On June 27, 2017, the Commonwealth filed a brief in opposition to

Appellant’s PCRA petition, and by order filed on June 29, 2017, the PCRA court

gave notice of its intent to dismiss Appellant’s PCRA petition without an

evidentiary hearing. Appellant filed no response, and on August 3, 2017, the

PCRA court dismissed Appellant’s PCRA petition.

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      This timely, counseled appeal followed. The PCRA court did not direct

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

did not file such a statement.     However, the PCRA court filed a Pa.R.A.P.

1925(a) opinion setting forth the reasons for its dismissal of Appellant’s

petition. On January 29, 2018, PCRA counsel filed in this Court a petition for

leave to withdraw as counsel, as well as a supporting brief.

      Prior to addressing the merits of Appellant’s claims on appeal, we must

first decide whether counsel has fulfilled the procedural requirements for

withdrawing his representation. Commonwealth v. Daniels, 947 A.2d 795,

797 (Pa.Super. 2008). This Court has listed the conditions counsel must meet

in seeking to withdraw in a collateral appeal as follows:

      Counsel petitioning to withdraw from PCRA representation must
      proceed ... under [Turner, supra and Finley, supra and] ...
      must review the case zealously. Turner/Finley 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.
                                      ***

      [W]here 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.



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Commonwealth v. Doty, 48 A.3d 451, 454 (Pa.Super. 2012) (citation

omitted).

      Herein, PCRA counsel indicates he communicated with Appellant

concerning the instant appeal, independently and conscientiously reviewed

the record, conducted legal research, and ultimately concluded that the appeal

is wholly frivolous. Counsel also lists in the brief the issues Appellant wishes

to raise and explains why, in his view, Appellant is not entitled to relief.

      In addition, PCRA counsel has attached to his petition to withdraw a

copy of the letter he sent to Appellant wherein counsel advised Appellant of

his right to proceed pro se or through privately-retained counsel. Counsel also

affixed a copy of his petition to withdraw and brief to the letter. Thus, we

conclude that PCRA counsel has substantially complied with the procedural

requirements of Turner and Finley.        Therefore, we must proceed with an

independent review of this case. Doty, supra.

      Initially, we note PCRA counsel presents the issue of whether the PCRA

court properly dismissed Appellant’s petition on the basis it was untimely filed.

With regard to the filing of petitions under the PCRA, this Court has observed:

      The filing mandates of the PCRA are jurisdictional in nature and
      are strictly construed. The question of whether a petition is timely
      raises a question of law. Where the petitioner raises questions of
      law, our standard of review is de novo and our scope of review
      plenary. An untimely petition renders this Court without
      jurisdiction to afford relief.

Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super. 2013) (citations

omitted).

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      A PCRA petition, “including a second or subsequent petition, shall be

filed within one year of the date the judgment becomes final.” 42 Pa.C.S.A.

§ 9545(b)(1). A judgment 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.A. § 9545(b)(3).

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a petition

must allege and the petitioner must prove:

      (i)      the failure to raise a claim previously was the result of
               interference    by    government     officials with    the
               presentation of the claim in violation of the Constitution
               or the law of this Commonwealth or the Constitution or
               law of the United States;
      (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 Pennsylvania after
               the time period provided in this section and has been held
               by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      “We emphasize that it is the petitioner who bears the burden to allege

and prove that one of the timeliness exceptions applies.” Commonwealth

v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008) (citation omitted).

Moreover, as this Court has often explained, all of the time-bar exceptions are



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subject to a separate deadline. Our Supreme Court has held that any petition

invoking an exception must show due diligence insofar as the petition must

be filed within 60 days of the date the claim could have first been presented.

Commonwealth v. Edmiston, 619 Pa. 549, 65 A.3d 339 (2013); 42

Pa.C.S.A. § 9545(b)(2).

       Here, this Court dismissed Appellant’s direct appeal on May 15, 2014,

and Appellant did not file a petition for allowance of appeal with our Supreme

Court.   Consequently, his judgment of sentence became final on June 16,

2014, when the thirty-day period for filing a petition for allowance of appeal

with our Supreme Court expired.3 See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P.

1113. He had one year from that date, or until approximately June 16, 2015,

to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b). Therefore, his

current petition, filed on December 21, 2016, is facially untimely. See 42

Pa.C.S.A. § 9545(b)(1).

       Appellant attempts to invoke the timeliness exception of 42 Pa.C.S.A. §

9545(b)(1)(ii) relating to the “newly-discovered fact” exception. Specifically,

Appellant suggests that the “newly-discovered fact” is that direct appeal




____________________________________________


3 We note the thirtieth day, June 14, 2014, fell on a Saturday. Thus, the last
day Appellant could have filed a timely petition for allowance of appeal was
Monday, June 16, 2014. See 1 Pa.C.S.A. § 1908 (providing that when the
last day of a calculated period of time falls on a Saturday or Sunday, such
days shall be omitted from the computation).


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counsel effectively abandoned him by failing to file a brief, thus resulting in

the dismissal of his direct appeal.

      Section 9545(b)(1)(ii) “requires [a] petitioner to allege and prove that

there were ‘facts’ that were ‘unknown’ to him and that he exercised due

diligence.”    Commonwealth v. Robinson, 2018 WL 2041425, at *3

(Pa.Super. filed 5/2/18) (en banc) (citation omitted). With regard to whether

Appellant has alleged and proved a “fact” that was “unknown” to him, in

Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264 (2007), our

Supreme Court recognized that a Section 9545(b)(1)(ii) exception may arise

from abandonment by counsel. As we have previously observed:

             In [ ] Bennett, [supra], counsel failed to file an appellate
      brief on appeal from the denial of [the] appellant’s first PCRA
      petition, and as a result the appeal was dismissed. Our Supreme
      Court determined that counsel’s failure to perfect [the] appellant’s
      appeal constituted abandonment by counsel and could serve as a
      newly discovered fact for purposes of [S]ection 9545(b)(1)(ii)
      (newly discovered facts exception). In so holding, the Court
      distinguished Bennett’s claim of counsel’s abandonment from
      those claims of ineffectiveness that simply “narrowed the ambit of
      appellate review,” and could not fall within the purview of
      [S]ection 9545(b)(1)(ii).

Commonwealth v. Williamson, 21 A.3d 236, 241–42 (Pa.Super. 2011).

      We conclude that Bennett applies to the facts before us, as counsel’s

failure to file a brief with this Court did not merely narrow the scope of claims

for review but altogether denied Appellant direct review from his judgment of

sentence.     Thus, counsel’s failure to file a brief, which led to this Court

dismissing the appeal, constitutes a newly-discovered fact for purposes of


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Section 9545(b)(1)(ii). See Williamson, supra (holding counsel’s failure to

file a timely petition for allowance of appeal was a newly-discovered fact for

purposes of section 9545(b)(1)(ii)).

       Our inquiry does not end here, however.        As it pertains to Section

9545(b)(1)(ii), we must determine whether Appellant exercised due diligence

in discovering direct appeal counsel’s failure to file a brief, which in turn led

to this Court dismissing his direct appeal.4

       “Due diligence demands that the petitioner take reasonable steps to

protect his own interests. A petitioner must explain why he could not have

learned the new fact(s) earlier with the exercise of due diligence.”

Commonwealth v. Williams, 35 A.3d 44, 52 (Pa.Super. 2011) (citations

omitted). Proof of due diligence in particular circumstances may ultimately

require an evidentiary hearing. Initially, however, a petitioner must allege

facts in his PCRA petition that could satisfy the due diligence standard. See

id.




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4 Appellant avers that he did not learn of counsel’s failure to file an appellate
brief or dismissal by this Court until after November 14, 2016, and he filed his
PCRA petition on December 21, 2016. Even assuming, arguendo, Appellant
met the initial 60-day threshold, his attempt to raise the “newly-discovered
facts” exception fails for the reasons discussed infra. See Commonwealth
v. Williams, 35 A.3d 44, 53 (Pa.Super. 2011) (explaining the sixty-day
threshold requirement).

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      Here, the PCRA court concluded Appellant did not meet his burden of

alleging in his petition facts that could satisfy the due diligence standard. We

find no error. See Taylor, supra.

      In his petition, Appellant averred that he wrote letters to direct appeal

counsel on October 31, 2016, and November 14, 2016, requesting information

pertaining to the status of his case. He alleged that direct appeal counsel

failed to respond, and thus, after November 14, 2016, his family went “online”

and found his docket information, thereby learning of counsel’s failure to file

a brief, as well as the dismissal of Appellant’s direct appeal. As the PCRA court

concluded, “[Appellant] offers no explanation as to why he could not have

discovered that his appeal had been dismissed sooner or that he exercised

due diligence in ascertaining whether his appeal was perfected.” PCRA Court

Opinion, filed 8/3/17, at 5.

      Inasmuch as this Court dismissed Appellant’s direct appeal on May 15,

2014, and the averments presented in Appellant’s PCRA petition reveal he

made no effort to learn the status of his appeal until October 31, 2016, we

agree with the PCRA court that Appellant failed to offer evidence that, if

proven, would meet the “due diligence” standard.        Thus, Appellant is not

entitled to the timeliness exception provided for in Section 9545(b)(1)(ii).

      Because Appellant has not met his burden of proving that his untimely

PCRA petition fits within one of the three exceptions to the PCRA’s time-bar,




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we affirm the order of the PCRA court. We also grant PCRA counsel’s petition

to withdraw.

     Petition to withdraw granted. Order affirmed.

     Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/25/18




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