J-S26011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JOSE M. ESPADA

                        Appellant                  No. 3241 EDA 2014


              Appeal from the PCRA Order November 3, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0006572-2010
                         CP-51-CR-0006574-2010

BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                              FILED MAY 06, 2016

      Appellant, Jose M. Espada, appeals from the order entered on

November 3, 2014 dismissing his first petition filed pursuant to the Post-

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, and granting

original PCRA counsel’s petition to withdraw. We affirm.

      The trial court accurately summarized the factual background of this

case as follows:

      On March 6, 2010, at approximately 3:15 a.m., Appellant was
      involved in a dispute with [] Jonathan Santiago inside a
      nightclub. . . . Security broke up the dispute, and Mr. Santiago
      went outside, at which time he saw Appellant exit the club
      brandishing a silver handgun. As Mr. Santiago fled on foot,
      Appellant fired five gunshots at him, striking him once in the
      thigh.

      Appellant then approached [] Angelo Quiles, who had witnessed
      the shooting, and at [gunpoint], demanded Mr. Quiles []



* Retired Senior Judge assigned to the Superior Court.
J-S26011-16


        surrender his money.      Mr. Quiles handed over his wallet
        containing $500[.00] along with two cell phones.

        In addition to both complainants, numerous eyewitnesses
        identified Appellant as the shooter.        As a result of the
        investigation, detectives were led to an address [in] Camden,
        New Jersey to pursue Appellant. There, police found Appellant
        inside as well as a handgun in a room that was identified as
        Appellant’s bedroom.     Ballistic testing [] performed on the
        weapon, [] confirmed that it matched the spent cartridge casings
        recovered at the scene.

Trial Court Opinion, 6/3/15, at 2-3.

        The procedural history of this case is as follows.   On May 26, 2010,

Appellant was charged via two criminal informations with attempted

murder,1 two counts of aggravated assault,2 carrying a firearm without a

license,3 carrying a firearm on the streets of Philadelphia,4 possessing an

instrument of crime,5 two counts of making terroristic threats,6 two counts of

simple assault,7 two counts of recklessly endangering another person,8




1
    18 Pa.C.S.A. §§ 901, 2502.
2
    18 Pa.C.S.A. § 2702(a).
3
    18 Pa.C.S.A. § 6106(a)(1).
4
    18 Pa.C.S.A. § 6108.
5
    18 Pa.C.S.A. § 907(a).
6
    18 Pa.C.S.A. § 2706(a)(1).
7
    18 Pa.C.S.A. § 2701(a).
8
    18 Pa.C.S.A. § 2705.



                                       -2-
J-S26011-16


robbery,9 theft by unlawful taking,10 and receiving stolen property.11   On

April 4, 2011, Appellant pled guilty to attempted murder and robbery. The

remaining charges were nolle prossed.       On April 8, 2011, Appellant was

sentenced in absentia to an aggregate term of 7 to 14 years’ imprisonment.

He did not file a direct appeal.

        On July 12, 2013, Appellant filed a pro se PCRA petition.   Original

PCRA counsel was appointed. On June 17, 2014, original PCRA counsel filed

a petition to withdraw as counsel and a no-merit letter pursuant to

Commonwealth          v.    Turner,   544   A.2d   927   (Pa.   1988),   and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On

September 22, 2014, the PCRA court issued notice of its intent to dismiss

the PCRA petition without an evidentiary hearing.    See Pa.R.Crim.P. 907.

Appellant filed a response to the Rule 907 notice. On November 3, 2014,

the PCRA court granted original PCRA counsel leave to withdraw and

dismissed Appellant’s PCRA petition. This timely appeal followed. After the

notice of appeal was filed, the PCRA court appointed new PCRA counsel to

litigate this appeal.12


9
    18 Pa.C.S.A. § 3701(a)(1)(ii).
10
     18 Pa.C.S.A. § 3921(a).
11
     18 Pa.C.S.A. § 3925(a).
12
   On February 5, 2015, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
(Footnote Continued Next Page)


                                      -3-
J-S26011-16


      Appellant presents one issue for our review:

      Did the [PCRA c]ourt err when it dismissed [Appellant’s p]ro [s]e
      PCRA [p]etition pursuant to [original PCRA] counsel’s
      [Turner/]Finley [l]etter . . . where [Appellant] pled and would
      have been able to prove that he was entitled to PCRA relief in
      the form of a new trial?

Appellant’s Brief at 3.

      In his lone issue on appeal, Appellant contends that the PCRA court

erred in granting original PCRA counsel’s petition to withdraw and dismissing

his petition. Appellant argues that original PCRA counsel’s Turner/Finley

letter was defective in that it failed to address all of the claims that Appellant

wished to raise.          Whether original PCRA counsel and the PCRA court

complied with Turner/Finley is a question of law; therefore, our standard

of review is de novo and our scope of review is plenary.                     See

Commonwealth v. Rykard, 55 A.3d 1177, 1183-1184 (Pa. Super. 2012).

      Counsel seeking to withdraw in PCRA proceedings

      must review the case zealously. [C]ounsel must then submit a
      “no-merit” letter to the [PCRA] 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;

                       _______________________
(Footnote Continued)
Pa.R.A.P. 1925(b).   On March 13, 2015, Appellant filed his concise
statement. On June 3, 2015, the PCRA court issued its Rule 1925(a)
opinion. Appellant’s lone issue on appeal was included in his concise
statement.



                                            -4-
J-S26011-16


      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 . . . 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. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (internal

alteration, ellipses, and citation omitted).

      In this case, original PCRA counsel and the PCRA court fully complied

with the mandates of Turner/Finley.            PCRA counsel addressed why

Appellant was not entitled to relief despite the claims he raised in his pro se

petition. Specifically, original PCRA counsel explained in his Turner/Finley

letter that Appellant’s PCRA petition was untimely and that he was unable to

plead and prove the applicability of a PCRA timeliness exception.       As the

timeliness of a PCRA petition implicates the PCRA court’s jurisdiction to

consider the merits of a petition, a petition that is untimely ipso facto

explains why no relief is available no matter what claims are asserted in the

petition. The PCRA court, after independently reviewing the record, agreed

that it lacked jurisdiction over Appellant’s PCRA petition and therefore

granted original PCRA counsel’s petition to withdraw as counsel and

dismissed Appellant’s petition.

      We next turn to whether the PCRA court lacked jurisdiction over

Appellant’s petition.    The timeliness requirement for PCRA petitions “is

mandatory and jurisdictional in nature, and the court may not ignore it in


                                      -5-
J-S26011-16


order to reach the merits of the petition.” Commonwealth v. Hernandez,

79 A.3d 649, 651 (Pa. Super. 2013) (citation omitted).      “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.” Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super.

2013) (citations omitted).

     A PCRA petition is timely if it is “filed within one year of the date the

judgment [of sentence] becomes final.” 42 Pa.C.S.A. § 9545(b)(1).13 “[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.A. § 9545(b)(3). As Appellant did not file a direct

appeal, his judgment of sentence became final on May 9, 2011. Appellant’s

petition was filed on July 12, 2013.      Thus, the petition was patently

untimely.

     An untimely PCRA petition may be considered if one of the following

three exceptions applies:

     (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;

13
   The fact that Appellant was sentenced in absentia does not impact the
timeliness requirement of the PCRA. Cf. Commonwealth v. Pollard, 911
A.2d 1005, 1007 (Pa. Super. 2006) (employing conventional PCRA
timeliness analysis despite fact the defendant was sentenced in absentia).



                                    -6-
J-S26011-16


      (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 the United States or 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).    If an exception applies, a PCRA petition

may be considered if it is filed “within 60 days of the date the claim could

have been presented.” 42 Pa.C.S.A. § 9545(b)(2).

      On appeal, Appellant argues that the PCRA court possessed jurisdiction

for two reasons.   First, he argues that there was structural error because

trial counsel effectively abandoned him by permitting him to be sentenced in

absentia and failing to file a direct appeal.     Second, he argues that the

deadline for filing a timely PCRA petition should have been equitably tolled.

      As to the first argument, it is well-settled that claims of structural error

do not overcome the PCRA’s timeliness requirement.          Commonwealth v.

Baroni, 827 A.2d 419, 422 (Pa. 2003). As to Appellant’s second argument,

it is equally well-settled that the PCRA’s timeliness requirement is not

subject to the doctrine of equitable tolling. Commonwealth v. Fahy, 737

A.2d 214, 222 (Pa. 1999). Accordingly, the PCRA court properly concluded




                                      -7-
J-S26011-16


that it lacked jurisdiction to consider the merits of Appellant’s PCRA

petition.14

      In sum, Appellant’s PCRA petition was patently untimely and he did

not plead and prove the applicability of any of the three statutory timeliness

exceptions.    Original PCRA counsel fulfilled the procedural requirements of

Turner/Finley by outlining in his no-merit letter the fact that the PCRA

court lacked jurisdiction over all of the claims raised in Appellant’s PCRA

petition.     Accordingly, the PCRA court properly granted original PCRA

counsel’s petition to withdraw and dismissed Appellant’s PCRA petition

without an evidentiary hearing.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/6/2016




14
   We decline to address the remaining issues raised in Appellant’s brief as
they all implicate the merits of his claims and not whether the PCRA court
possessed jurisdiction to reach those claims.



                                     -8-
