J-S13011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellee              :
                                          :
              v.                          :
                                          :
 CURTIS MAHAFFEY                          :
                                          :
                    Appellant             :       No. 695 WDA 2017

                Appeal from the PCRA Order February 9, 2017
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0004685-2003,
                           CP-02-CR-0017548-2002


BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                      FILED OCTOBER 3, 2018

      Appellant, Curtis Mahaffey, appeals from the order entered in the

Allegheny County Court of Common Pleas, which denied his serial petitions

filed under the Post Conviction Relief Act at 42 Pa.C.S.A. §§ 9541-9546. We

affirm and grant counsel’s amended petition to withdraw.

      The PCRA court set forth the relevant facts and procedural history of

this case as follows:

         At the above-captioned information, [Appellant] was
         convicted by a jury of Murder in the First Degree and
         Conspiracy. Following the verdict, on November 20, 2003,
         [Appellant] waived a pre-sentence report and was
         immediately sentenced to a mandatory term of life
         imprisonment. On December 18, 2003, [Appellant] filed a
         Notice of Appeal to the Superior Court, docketed at 2279
         WDA 2003; the Superior Court affirmed the judgment of
         sentence on July 20, 2005. [Appellant] then filed a Petition
         for Leave to File a Petition for Allowance of Appeal to the
         Supreme Court of Pennsylvania Nunc Pro Tunc on August
J-S13011-18


         26, 2005. The Supreme Court entered an order denying the
         petition on October 6, 2005.

         On August 29, 2006, [Appellant]…filed a pro se PCRA
         Petition; [counsel] was appointed to represent [Appellant]
         in the matter. An Amended PCRA Petition was filed on
         October 14, 2008; although this [c]ourt filed a Notice of
         Intent to Dismiss the petition without a hearing, because
         the petition was time-barred, an evidentiary hearing was
         held on January 13, 2009, to determine the timeliness of
         the [petition]. The [c]ourt granted [Appellant] 60 (sixty)
         days to obtain jail records of other evidence to support his
         claim that his pro se petition was timely filed. On February
         6, 2009, [Appellant] filed a Supplement to Amended Petition
         for Post-Conviction Collateral Relief, and the Commonwealth
         was directed to file a response. The [c]ourt then issued an
         order denying the petition on March 12, 2009.

         Before receiving the order, however, [Appellant] filed a
         Second Supplement to the Amended Petition for Post-
         Conviction Collateral Relief.      In the supplement, he
         presented two claims of after-discovered evidence.
         Specifically, he found two additional witnesses who would
         allegedly provide exculpatory evidence. On March 17, 2009,
         [Appellant] filed a Motion to Vacate Order. That motion was
         granted. The [c]ourt then held an evidentiary hearing, at
         which the two after-discovered witnesses testified. On April
         20, 2009, the [c]ourt ultimately denied relief.

         [Appellant] subsequently filed an appeal to the Superior
         Court of Pennsylvania, docketed at 708 WDA 2009; the
         Superior Court affirmed this [c]ourt’s decision by
         memorandum opinion issued October 12, 2010. [Appellant]
         then filed another Petition for Allowance of Appeal to the
         Supreme Court of Pennsylvania, which was denied on April
         26, 2011.

(PCRA Court Opinion, filed October 18, 2017, at 1-2). In 2012, Appellant filed

and pursued two more PCRA petitions unsuccessfully. The court dismissed

the February 14, 2012 petition, without a hearing, on June 19, 2012. The

court dismissed the July 24, 2012 petition, without a hearing, on October 9,

                                    -2-
J-S13011-18


2012.     This Court affirmed on July 23, 2013.       See Commonwealth v.

Mahaffey, 82 A.3d 1076 (Pa.Super. 2013).

        On February 29, 2016, Appellant filed his fourth PCRA petition, repeating

the issue he had raised in his previous petition and adding new arguments for

relief under Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718, 193

L.Ed.2d 599 (2016) (revised on January 27, 2016). The petition was sent in

error to two different judges. The first judge appointed current counsel to

represent Appellant. On March 29, 2016, Appellant filed a pro se application

for leave to amend his petition, which was sent to the second judge, who was

unaware that the first judge had already appointed counsel for Appellant.

Counsel was also unaware that Appellant was filing pro se motions, which

were being forwarded to the second judge.        Although counsel had notified

Appellant of counsel’s appointment, Appellant continued to file pro se

documents without informing counsel, including another PCRA petition on

September 15, 2016.

        The second jurist eventually assumed the case, and on January 17,

2017, issued notice of its intent to dismiss without a hearing, per Pa.R.Crim.P.

907. Appellant responded on February 2, 2017. By order dated February 9,

2017, the court dismissed the current petitions without a hearing. Appellant

timely appealed pro se on March 6, 2017; counsel filed an amended notice of

appeal on May 9, 2017.       No concise statement of errors complained of on

appeal, per PA.R.A.P. 1925(b), was ordered or filed.


                                       -3-
J-S13011-18


      Appellate counsel filed with this Court a petition to withdraw

representation and a brief, improperly designated as a brief under Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).            In the

context of a PCRA petition and request to withdraw, however, the appropriate

filing is a “no-merit” letter/brief. Commonwealth v. Turner, 518 Pa. 491,

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

(Pa.Super. 1988) (en banc). But see Commonwealth v. Fusselman, 866

A.2d 1109, 1111 n.3 (Pa.Super. 2004), appeal denied, 584 Pa. 691, 882 A.2d

477 (2005) (stating Superior Court can accept Anders brief in lieu of

Turner/Finley letter, where PCRA counsel seeks to withdraw on PCRA

appeal).

      “Before an attorney can be permitted to withdraw from representing a

petitioner under the PCRA, Pennsylvania law requires counsel to file and

obtain approval of a ‘no-merit’ letter pursuant to the mandates of

Turner/Finley.”      Commonwealth v. Karanicolas, 836 A.2d 940, 947

(Pa.Super. 2003) (emphasis in original).

           [C]ounsel must…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 the petitioner wants to have reviewed,
           explaining why and how those issues lack merit, and
           requesting permission to withdraw.

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

must also send to the petitioner a copy of the “no-merit” letter or brief and

petition to withdraw and advise the petitioner of his right to proceed pro se or

                                       -4-
J-S13011-18


with new counsel. Id.

      Instantly, counsel filed a Turner/Finley brief on appeal, incorrectly

designated as an Anders brief, and a petition to withdraw as counsel.

Although counsel’s brief has some attributes of an Anders brief, we will treat

it as a Turner/Finley brief. Counsel listed the issues Appellant wished to

raise and explained why Appellant’s claims merit no relief.      In counsel’s

amended petition to withdraw, counsel states that she sent Appellant another

copy of the brief, a copy of the amended petition to withdraw, and a corrected

letter advising Appellant of his right to proceed immediately pro se or with

private counsel to raise additional points he deems worthy of review. Thus,

appellate counsel has now substantially complied with the Turner/Finley

requirements.     See Karanicolas, supra.    Accordingly, we proceed to an

independent evaluation. See Turner, supra at 494-95, 544 A.2d at 928-29

(stating appellate court must conduct independent analysis and agree with

counsel that appeal is frivolous). Appellant has not responded to counsel’s

petition.

      Appellant raises two issues in the Turner/Finley brief:

            DID THE [PCRA] COURT ERR IN DENYING RELIEF UPON
            FINDING   THAT   IT  LACKED     JURISDICTION     OVER
            [APPELLANT]’S FOURTH AND FIFTH PCRA PETITION[S]
            INSOFAR AS THEY WERE UNTIMELY, AND THE EXCEPTION
            ENUMERATED IN 42 PA.C.S.A. § 9545(B)(1)(III) DOES NOT
            APPLY BASED ON MILLER V. ALABAMA[, 567 U.S. 460,
            132 S.CT. 2455, 183 L.ED.2D 407 (2012)], AND
            MONTGOMERY, SUPRA?

            DID THE [PCRA] COURT ERR IN DENYING RELIEF UPON

                                    -5-
J-S13011-18


          FINDING     THAT   IT   LACKED   JURISDICTION OVER
          [APPELLANT]’S FOURTH AND FIFTH PCRA PETITIONS
          INSOFAR AS THEY WERE UNTIMELY, AND THE “NEWLY
          DISCOVERED FACT” EXCEPTION ENUMERATED IN 42
          PA.C.S.A. § 9545(B)(1)(II) DOES NOT APPLY?

(Turner/Finley Brief at 5).1

       As a prefatory matter, the timeliness of a PCRA petition is a jurisdictional

requisite. Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008),

cert. denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009).

Pennsylvania law makes clear no court has jurisdiction to hear an untimely

PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 508, 837 A.2d

1157, 1161 (2003).         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.A. § 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.A. §

9545(b)(3).

       Generally, to obtain merits review of a PCRA petition filed more than

one year after the sentence became final; the petitioner must allege and prove

at least one of the three timeliness exceptions.           See 42 Pa.C.S.A. §


____________________________________________


1 In his response to the Turner/Finley Brief, Appellant refers us (without any
citation) to a non-binding case purportedly from Connecticut as probative and
persuasive for the principle that Miller/Montgomery should also apply to
offenders who are eighteen years old.

                                           -6-
J-S13011-18


9545(b)(1)(i)-(iii). The petitioner must allege and prove:

          (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;

          (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). “[W]hen a PCRA petition is not filed within

one year of the expiration of direct review, or not eligible for one of the three

limited exceptions, or entitled to one of the exceptions, but not filed within 60

days of the date that the claim could have been first brought, the trial court

has no power to address the substantive merits of a petitioner’s PCRA claims.”

Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783

(2000).

      Instantly, the Commonwealth charged Appellant with offenses, which

Appellant committed on September 27, 2002, when he was twenty-one years

old. Following the jury trial verdict, the trial court sentenced Appellant on

November 20, 2003, to a mandatory term of life imprisonment without parole.

Appellant appealed on December 18, 2003; this Court affirmed the judgment

of sentence on July 20, 2005. See Commonwealth v. Mahaffey, 883 A.2d


                                      -7-
J-S13011-18


690 (Pa.Super. 2005) (unpublished memorandum). On or about August 26,

2005, Appellant filed a petition for leave to file for allowance of appeal nunc

pro tunc with our Supreme Court.       The Supreme Court entered an order

denying the petition on October 6, 2005. Because Appellant failed to file a

timely petition for allowance of appeal, and the Supreme Court denied his

request to file it nunc pro tunc, the judgment of sentence became final on or

about August 19, 2005, upon expiration of the 30-day period to file a timely

petition for allowance of appeal.   See Pa.R.A.P. 1113 (stating: “Except as

otherwise prescribed by this rule, a petition for allowance of appeal shall be

filed with the Prothonotary of the Supreme Court within 30 days after the

entry of the order of the Superior Court or the Commonwealth Court sought

to be reviewed”); Commonwealth v. Hutchins, 760 A.2d 50 (Pa.Super.

2000) (holding date that Supreme Court denies untimely petition for allowance

of appeal does not alter date judgment of sentence becomes final for purposes

of time restrictions of PCRA). Thus, Appellant had until Monday, August 21,

2006, to file a timely PCRA petition. Appellant filed his current fourth pro se

petition on February 29, 2016, and his fifth pro se petition on September 15,

2016 (after counsel had been appointed to assist Appellant with his fourth

petition), both of which are patently untimely by about ten years.

      In his fourth pro se petition, Appellant appears to claim entitlement to

PCRA relief per Montgomery, supra. In his fifth pro se petition (which seems

from the record to be Appellant’s pro se effort to amend his fourth pro se


                                     -8-
J-S13011-18


petition), Appellant claimed trial counsel was ineffective for failing to call an

alibi witness. Following our independent review of the record, we agree with

PCRA counsel that neither claim satisfies a statutory exception to the PCRA

time requirements because: (1) Appellant was over 18 years old at the time

of the offenses (he was 21 years old), Montgomery has not been extended

to individuals of Appellant’s age at the time of his offenses, so Appellant

cannot use Montgomery to satisfy the “new constitutional right” exception

at 42 Pa.C.S.A. § 9545(b)(1)(iii);2 and (2) the “new facts” exception at 42

Pa.C.S.A. § 9545(b)(1)(ii) does not apply to Appellant’s claim regarding the

proposed alibi witness, where Appellant knew the identity of the alibi witness

at the time of trial, filed a notice of alibi defense naming Ms. Traylon Johnson

as his alibi witness, and already pursued this claim without success in his 2006

PCRA petition. Moreover, this kind of ineffective assistance of counsel claim

does not qualify as a “new fact” to excuse a late PCRA petition. See Gamboa-

Taylor, supra (defining general class of ineffective assistance of counsel

claims that does not serve as exception to PCRA timeliness requirements).

Thus, Appellant cannot sustain either the statutory “new constitutional right”

exception or the “new facts” exception to the PCRA timeliness requirements;

____________________________________________


2 See, e.g., Commonwealth v. Furgess, 149 A.3d 90 (Pa.Super. 2016)
(holding appellant who was 19 years old at time of offenses was not entitled
to relief under Montgomery on collateral review; rejecting “technical
juvenile” argument).




                                           -9-
J-S13011-18


and his petitions remain time-barred.              Accordingly, we affirm3 and grant

counsel’s amended petition to withdraw.

       Order affirmed; counsel’s amended petition to withdraw is granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/3/2018




____________________________________________


3Due to our disposition, we now deny as moot all of Appellant’s remaining
open motions.

                                          - 10 -
