J-S13043-19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  Appellee              :
                                        :
          v.                            :
                                        :
TIMOTHY ELWOOD CHARITY, JR.,            :
                                        :
                  Appellant             :
                                        :    No. 1546 WDA 2018

          Appeal from the PCRA Order Entered September 26, 2018
                in the Court of Common Pleas of Erie County
            Criminal Division at No(s): CP-25-CR-0002480-2011

BEFORE:        BENDER, P.J.E., OTT, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                      FILED MAY 21, 2019

     Timothy Elwood Charity, Jr. (Appellant) appeals from the order

entered September 26, 2018, dismissing his petition filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Counsel has filed a

petition to withdraw and a brief pursuant to Commonwealth v. Turner,

544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super. 1988) (en banc). Upon review, we grant counsel’s petition to

withdraw and affirm the order of the PCRA court.

     On April 25, 2012, following a jury trial, Appellant was convicted of

third-degree murder and related offenses.1     On June 13, 2012, Appellant

was sentenced to an aggregate 21½ to 44 years’ incarceration. This Court



1
  Appellant’s conviction stemmed from the shooting death of Cameron
Mitchell, Jr. in August 2011.


* Retired Senior Judge assigned to the Superior Court.
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affirmed     Appellant’s   judgment     of   sentence   on   June   18,   2013.

Commonwealth v. Charity, 82 A.3d 463 (Pa. Super. 2013) (unpublished

memorandum). Appellant did not seek review by our Supreme Court.

        On June 15, 2018, Appellant pro se filed a PCRA petition asserting

ineffective assistance of counsel and prosecutorial misconduct. Pro Se PCRA

Petition, 6/15/2018, at 3.         The PCRA court appointed counsel, who

submitted a Turner/Finley “no-merit” letter and a petition to withdraw as

counsel. On August 24, 2018, the PCRA court issued a notice of its intent to

dismiss Appellant’s petition pursuant to Pa.R.Crim.P. 907. Appellant did not

file a response, and on September 26, 2018, the PCRA court dismissed

Appellant’s petition but did not grant counsel’s request to withdraw.

        Appellant, through counsel, timely filed a notice of appeal.        On

November 27, 2018, in response to the PCRA court’s directive to file a

concise statement pursuant to 1925(b), counsel filed a notice of intent to file

a Finley brief.2 In this Court, counsel filed a Turner/Finley brief and an

application to withdraw as counsel.3

        Initially, we must first determine if counsel has complied with the

technical requirements of Turner and Finley.

             … Turner/Finley counsel must review the case zealously.
        Turner/Finley counsel must then submit a “no-merit” letter to

2
 In light of counsel’s statement of intent to file a Finley brief, the PCRA
court determined that “no [o]pinion [was] necessary.” PCRA Court Opinion,
11/28/2018.
3
    Appellant has not responded to counsel’s filings.
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      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 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” 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.

            If counsel fails to satisfy the foregoing technical
      prerequisites of Turner/Finley, the court will not reach the
      merits of the underlying claims but, rather, will merely deny
      counsel’s request to withdraw. Upon doing so, the court will
      then take appropriate steps, such as directing counsel to file a
      proper Turner/Finley request or an advocate’s brief.

             However, where counsel submits a petition and no-merit
      letter that do 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. By contrast, if the claims
      appear to have merit, the court will deny counsel’s request and
      grant relief, or at least instruct counsel to file an advocate’s
      brief.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007)

(citations omitted).

      We are satisfied that counsel has substantially complied with the

technical requirements of Turner and Finley.        However, before we may

consider the merit of the issues contained in counsel’s brief, we must first

determine whether Appellant has timely filed his petition, as neither this

Court nor the PCRA court has jurisdiction to address the merits of an

untimely-filed petition.   See Commonwealth v. Lewis, 63 A.3d 1274,


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1280-81 (Pa. Super. 2013) (quoting Commonwealth v. Chester, 895 A.2d

520, 522 (Pa. 2006)) (“[I]f a PCRA petition is untimely, neither this Court

nor the [PCRA] court has jurisdiction over the petition. Without jurisdiction,

we simply do not have the legal authority to address the substantive

claims.”).

      Any PCRA petition, including second and subsequent petitions, must

either (1) be filed within one year of the judgment of sentence becoming

final, or (2) plead and prove a timeliness exception. 42 Pa.C.S. § 9545(b). 4

      “For purposes of [the PCRA], a judgment [of sentence] 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 the review.”             42 Pa.C.S.

§ 9545(b)(3). Here, this Court affirmed Appellant’s judgment of sentence on

June 18, 2013. Appellant did not file a petition for allowance of appeal with

our Supreme Court. Therefore, his judgment of sentence became final 30

days later on July 18, 2013, and he had one year to file timely a PCRA

petition. Thus, Appellant’s June 15, 2018 petition is facially untimely, and

he was required to plead and prove an exception to the timeliness

requirements.

4
  There are also time restrictions on when a petitioner must file a petition
after a time-bar-exception claim has arisen. See 42 Pa.C.S. § 9545(b)(2).
On October 24, 2018, the General Assembly amended subsection 9545(b)(2)
in order to extend the time for filing a petition from 60 days to one year
from the date the claim could have been presented. See 2018
Pa.Legis.Serv.Act 2018-146 (S.B. 915), effective December 24, 2018.
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      In    his    Turner/Finley      brief,    counsel      states   Appellant

“fully recognize[s] the untimeliness of the filing of the instant PCRA

[petition] and has sought to ameliorate that by asserting the application of

two statutory exceptions[:]” 42 Pa.C.S. § 9545(b)(1)(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”) and 42

Pa.C.S. § 9545(b)(1)(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”). Turner/Finley Brief at 1.

      Specifically, counsel avers Appellant’s “fundamental contention is that

former trial and appellate counsel, John Moore[, Esquire], failed and refused

to provide [Appellant] with the transcripts of [his] case. [Appellant] argues

that this resulted in the dual impact of governmental interference and facts

unknown and not discoverable by due diligence.”        Id.   See also   Pro Se

PCRA Petition, 6/15/2018, at 4 (asserting (1) governmental interference

because prior counsel failed to provide Appellant copies of his trial

transcripts despite Appellant’s repeated requests, and (2) newly-discovered

facts5 that could have only been discovered after Appellant received his trial

transcripts).


5
 Appellant’s newly-discovered “facts” are the contents of his trial transcripts,
which formed the basis of his claims of ineffective assistance of counsel and
prosecutorial misconduct he raised in his pro se petition. With respect to the
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      Upon review of the record and the applicable case law, we find

Appellant has failed to plead and prove that either exception applies. First,

regarding Appellant’s argument that counsel’s failure to provide Appellant

with his trial transcripts constituted governmental interference, it is well-

settled that with respect to the timeliness exception provided in 42 Pa.C.S.

§ 9545(b)(1)(i), claims related to alleged interference by defense counsel

“do not qualify due to the specific provision in 42 Pa.C.S. § 9545(b)(4) that

the   term   ‘government    officials’   does   not   include   defense   counsel.”

Commonwealth v. Pursell, 749 A.2d 911, 916 (Pa. 2000). See also 42

Pa.C.S. § 9545(b)(4) (“For purposes of this subchapter, ‘government

officials’ shall not include defense counsel, whether appointed or retained.”).

      Secondly, the claims and averments Appellant now presents upon

receipt of his trial transcripts do not constitute “newly-discovered facts.”

      This exception requires that the facts upon which such a claim is
      predicated must not have been known to appellant, nor could
      they have been ascertained by due diligence. [T]o fall within
      this exception, the factual predicate of the claim must not be of
      public record and must not be facts that were previously known
      but are now presented through a newly discovered source.

Commonwealth v. Shannon, 184 A.3d 1010, 1015-16 (Pa. Super. 2018)

(citation and quotation marks omitted; bracket in original).        Our Supreme



former, in his petition, Appellant averred counsel was ineffective for: (1)
failing to furnish Appellant with a copy of his trial transcripts; (2) failing to
file a petition for allowance of appeal; (3) filing a “defective” appellate brief
to this Court on direct appeal; (4) failing to object to prosecutorial
misconduct; and (5) failing to object to the trial court’s jury instructions.
Pro Se PCRA Petition, 6/15/2018, at 5-17.
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Court has “held that a petitioner must allege and prove previously unknown

‘facts,’ not merely a “newly discovered or newly willing source for previously

known facts.” Commonwealth v. Edmiston, 65 A.3d 339, 352 (Pa. 2013).

      Here, Appellant does not present “new facts” upon which a claim is

predicated, but instead seeks to litigate “new claims” based upon ineffective

assistance of counsel and other alleged errors that occurred at trial that

Appellant avers he only recently discovered upon receipt and review of his

trial transcripts.   However, these transcripts, which were transcribed and

made part of the certified record as part of Appellant’s direct appeal in 2012,

merely reflect what happened during Appellant’s trial, in Appellant’s

presence.     Thus, the contents of the transcripts do not reflect newly

discovered facts; instead, the transcripts constitute a newly[-]discovered

source of these alleged facts. See Commonwealth v. Marshall, 947 A.2d

714, 720 (Pa. 2008) (“The focus of the exception is on [the] newly[-

]discovered facts, not on a newly discovered or newly willing source for

previously known facts.”) (quotation marks omitted; emphasis in original).

      Moreover, Appellant is unable to overcome the PCRA time-bar with

respect to his claims of counsel ineffectiveness for filing a “defective”

appellate brief on direct appeal and for failing to file a petition for allowance

of appeal because Appellant was aware of these “claims” more than sixty

days before the filing of his pro se PCRA petition in 2018.       See Charity,

supra (a memorandum filed June 18, 2013 affirming Appellant’s judgment


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of sentence upon finding, inter alia, the certified record was incomplete and

the claims on appeal were not preserved properly, underdeveloped and/or

conceded as having no merit); Pro Se PCRA petition, at Exhibit 1 (a letter

dated June 25, 2013 from counsel enclosing this Court’s memorandum

“denying [Appellant’s direct] appeal”); Pro Se PCRA petition, at Exhibit 5 (a

letter dated October 21, 2014 from the Supreme Court Prothontary advising

Appellant that a petition for allowance of appeal was not filed in his case).

      Based on the foregoing, we agree with counsel that Appellant’s petition

was untimely filed and he did not satisfy an exception to the timeliness

requirements.    Thus, the PCRA court lacked jurisdiction to review his

petition, and he is not entitled to relief.    We therefore affirm the order

dismissing the PCRA petition and grant counsel’s petition to withdraw.

      Order affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/2019




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