J-S84005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

VICTOR ENRIQUES,

                          Appellant                   No. 2492 EDA 2017


              Appeal from the PCRA Order Entered July 5, 2017
            In the Court of Common Pleas of Philadelphia County
                         Criminal Division at No(s):
                          CP-51-CR-0312591-2003
                          CP-51-CR-0312601-2003


BEFORE: BENDER, P.J.E., OTT, J., and FORD ELLIOT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                        FILED MARCH 20, 2019

      Appellant, Victor Enriques, appeals from the order dismissing, as

untimely, his petition filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.

      This Court previously summarized the facts leading to Appellant’s

conviction, as follows:

      On February 19, 2003, at approximately 9:30 p.m., [Appellant]
      and a young male later identified as Samuel Rosado entered a
      pizza shop located at 3063 E. Lycoming Avenue in Philadelphia.
      The owner of the shop, George Parsalidis, was working in the shop
      with employee Kathy O’Neill at the time. [Appellant] approached
      the counter and asked who owned a truck that was parked
      outside. Mr. Parsalidis responded that the owner lived around the
      corner, but refused [Appellant]’s request to take him there.
      [Appellant] then became loud and angry, shoving books,
      pencils[,] and pens off the counter before leaving with Rosado.
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           Mr. Parsalidis was still working in his store at approximately
     11:00 p.m. when [Appellant] and Rosado returned.               When
     [Appellant] opened his jacket, Mr. Parsalidis observed a gun in his
     waistband. The pizza shop’s delivery man, Ed Montague, also saw
     the gun, and observed [Appellant’s] motioning as if he were about
     to pull it out. Montague then reached down and pulled out the
     .357 which Mr. Parsalidis kept under the counter. Mr. Montague
     pointed the gun at Rosado, whom he had also seen reaching for a
     gun in his waistband. When Montague threatened to shoot
     Rosado, Rosado put up his hands saying he was “cool.”
     [Appellant] then displayed his gun and threatened to shoot Mr.
     Parsalidis if Montague shot Rosado.

           [Appellant] next started firing numerous shots at Mr.
     Montague. Montague could hear the bullets whizzing by him as
     he called “911.” He was shot in the hand as he made the call in
     which he advised police that a shooting was in progress and to
     please hurry. Mr. Parsalidis hid behind the counter to get away
     from the bullets. When Montague heard Kathy O’Neill, who had
     been in the basement during the shooting, coming up the stairs,
     he pushed her back down and stayed downstairs with her until the
     police arrived.

            When the shooting stopped, George Parsalidis heard his son
     Angelo coming down the steps from the upstairs apartment where
     they lived. Mr. Parsalidis jumped over the counter to try and stop
     his son from getting involved in the altercation. Just outside the
     front door, Mr. Parsalidis was shot two or three times and fell to
     the ground. Angelo, who was armed with weapons, was tragically
     shot and killed by one of the police officers who had arrived at the
     scene. [Appellant] exchanged gunfire with police officers as he
     ran down the street. Police apprehended [Appellant] at the
     corner. Rosado was also apprehended by the police near the
     scene.

Commonwealth       v.   Enriques,    No.   1414    EDA    2004,   unpublished

memorandum at 2-3 (Pa. Super. filed May 8, 2006) (quoting Trial Court

Opinion, 7/12/05, at 2-3).

     Subsequently,

     [t]he Commonwealth charged [Appellant] with six counts of
     attempted murder, one count of criminal conspiracy, one count of

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       carrying a firearm without a license, and one count of possessing
       instruments of crime. A jury found [Appellant] guilty of two
       counts of aggravated assault, one count of possession of
       instruments of crime[,] and one count of criminal conspiracy. The
       Honorable Harold M. Kane sentenced [Appellant] to ten to twenty
       years’ incarceration on each count of aggravated assault and
       criminal conspiracy, and two and a half to five years’ incarceration
       for possessing instruments of crime. The sentences were to run
       consecutively for a total of 32 to 65 years[’] incarceration.

Id. at 3 (unnecessary capitalization omitted). Sentencing occurred on January

13, 2004.

       Appellant filed a timely notice of appeal from his judgment of sentence,

and this Court affirmed on May 18, 2004. Commonwealth v. Enriques, 903

A.2d 43 (Pa. Super. 2006) (unpublished memorandum). Our Supreme Court

denied    his   petition   for   allowance     of   appeal   on   August   31,   2006.

Commonwealth v. Enriques, 906 A.2d 538 (Pa. 2006).

       On November 6, 2006, Appellant filed a timely, pro se PCRA petition—

his first.   Counsel was appointed by the PCRA court, but that attorney

ultimately filed a Turner/Finely1 no-merit letter and a motion to withdraw

with the PCRA court. Appellant filed a timely response, but his PCRA petition

was ultimately denied, and his counsel was permitted to withdraw. Appellant

did not file an appeal from that decision.




____________________________________________


1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).




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        Appellant filed the instant PCRA petition under consideration, pro se, on

November 4, 2015. In that petition, Appellant solely sought relief based on a

claim that he had received an illegal sentence pursuant to Alleyne v. United

States, 570 U.S. 99 (2013). See Appellant’s PCRA Petition, 11/4/15, at 2-7.

The PCRA court appointed counsel (hereinafter “PCRA counsel”), but PCRA

counsel filed a Turner/Finley no-merit letter and a motion to withdraw on

May 5, 2017. On June 5, 2017, the PCRA court issued a notice of its intent to

dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907. On June

19, 2017, Appellant filed objections to his counsel’s Turner/Finley no-merit

letter and motion to withdraw, and he filed further objections thereto on June

30, 2017. On July 5, 2017, the PCRA court dismissed the petition.

        Appellant filed a timely notice of appeal on August 3, 2017, and, on

August 15, 2017, the PCRA court ordered him to file a Pa.R.A.P. 1925(b)

statement within 21 days (making the statement due on or before September

5, 2017).2 Appellant filed his Rule 1925(b) statement with the PCRA court

September 13, 2017,3 eight days late. The PCRA court issued its Rule 1925(a)

opinion on February 28, 2018.
____________________________________________


2   Appellant alleges that he did not receive this order until August 21, 2017.

3 This date represents the time-stamp marked on the envelope containing
Appellant’s Rule 1925(b) statement, indicating application of the prisoner-
mailbox rule. See Commonwealth v. Chambers, 35 A.3d 34 (Pa. Super.
2011) (explaining that the prisoner mailbox rule provides that a pro se
prisoner’s document is deemed filed on date he delivers it to prison authorities
for mailing). The PCRA court did not actually receive Appellant’s Rule 1925(b)



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       Appellant now presents the following questions for our review, which we

have rewritten for clarity and ease of disposition:

           1. Whether the PCRA court erred or abused its discretion by
              denying Appellant’s PCRA petition?

           2. Whether the PCRA court erred or abused its discretion when
              it accepted appointed counsel’s Turner/Finley letter and
              permitted counsel to withdraw, where such actions deprived
              Appellant of his due process and equal protection rights?

See Appellant’s Brief at 1.

       We begin our analysis by addressing whether Appellant preserved his

claims for our review in his Rule 1925(b) statement.          As noted above,

Appellant did not file his Rule 1925(b) statement within 21 days of the PCRA

court’s Rule 1925(b) statement order. Even if we were to accept Appellant’s

contention that he gave his statement to prison authorities on September 8,

2017, his Rule 1925(b) statement was due three days’ earlier on September

5, 2017.

       This Court addressed a similar circumstance in Commonwealth v.

Boniella, 158 A.3d 162 (Pa. Super. 2018), wherein we stated:

       Boniella had until December 12, 2016, to file his statement, but
       did not do so until the next day. We have stated that “where the
       trial court addresses the issues raised in an untimely Rule 1925(b)
       statement, we need not remand but may address the issues on
       their merits.” Commonwealth v. Brown, 145 A.3d 184, 186
       (Pa. Super. 2016). See also Commonwealth v. Burton, 973
       A.2d 428, 433 (Pa. Super. 2009) (en banc) (“[I]f there is an
____________________________________________


statement until September 18, 2017. This matches the “date received”
marking on Appellant’s cash slip that he filed to pay for postage. However,
the cash slip also contains Appellant’s handwritten date of September 8, 2017.


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      untimely filing, this Court may decide the appeal on the merits if
      the trial court had adequate opportunity to prepare an opinion
      addressing the issues being raised on appeal[.]”).

             Critically, however, we note that Brown and Burton apply
      to counseled defendants, rather than those proceeding pro se.
      This is because counsel can be considered to be ineffective per se
      for failing to file a timely Rule 1925(b) statement. See Pa.R.A.P.
      1925(c)(3) (“If an appellant in a criminal case was ordered to file
      a Statement and failed to do so, such that the appellate court is
      convinced that counsel has been per se ineffective, the appellate
      court shall remand for the filing of a Statement nunc pro tunc
      [.]”); see also Burton, 973 A.2d at 433 (untimely filing of Rule
      1925(b) statement by counsel is per se ineffectiveness).
      Accordingly, we consider untimely counseled Rule 1925(b)
      statements on the basis of judicial economy. See Comment to
      Ra.R.A.P. 1925(c)(3).

             It is a longstanding principle that a pro se litigant cannot be
      ineffective on his or her own behalf. See Commonwealth v.
      Fletcher, … 986 A.2d 759, 773 (Pa. 2009) (“The law prohibits a
      defendant who chooses to represent himself from alleging his own
      ineffectiveness.”). Thus, our rationale for considering an untimely
      Rule 1925(b) statement disappears where it is filed by a pro se
      litigant. Therefore, we are constrained to find that Boniella’s
      issues are waived in the instant matter.

Boniella, 158 A.3d at 164. Likewise, here, we are constrained to conclude

that Appellant’s Rule 1925(b) statement was untimely filed, leaving no issues

preserved therein for our review.

      Nevertheless, had Appellant filed a timely Rule 1925(b) statement, he

would still not be entitled to relief.

      We review an order dismissing a petition under the PCRA in the
      light most favorable to the prevailing party at the PCRA level. This
      review is limited to the findings of the PCRA court and the evidence
      of record. We will not disturb a PCRA court’s ruling if it is
      supported by evidence of record and is free of legal error. This
      Court may affirm a PCRA court’s decision on any grounds if the
      record supports it. Further, we grant great deference to the
      factual findings of the PCRA court and will not disturb those

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      findings unless they have no support in the record. However, we
      afford no such deference to its legal conclusions. Where the
      petitioner raises questions of law, our standard of review is de
      novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (internal

citations omitted).

      Generally, a petition for PCRA relief must be filed within one year of the

date the judgment is final.      See 42 Pa.C.S. § 9545(b)(3); see also

Commonwealth v. Alcorn, 703 A.2d 1054 (Pa. Super. 1997). There are,

however, exceptions to the timeliness requirement, as set forth in 42 Pa.C.S.

§§ 9545(b)(1)(i),(ii), and (iii), and include interference by government

officials in the presentation of the claim, after-discovered facts or evidence,

and an after-recognized constitutional right.       See Commonwealth v.

Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000). Where the petition alleges

and proves an exception to the timeliness requirements, the petition will be

considered timely. A PCRA petition invoking one of these exceptions must “be

filed within 60 days of the date the claims could have been presented.” Id.;

see also 42 Pa.C.S. § 9545(b)(2). The timeliness requirements of the PCRA

are jurisdictional in nature and, accordingly, a PCRA court cannot entertain

untimely petitions.   Commonwealth v. Robinson, 837 A.2d 1157 (Pa.

2003).

      Appellant’s current PCRA petition, filed in 2015, is patently untimely.

Thus, the courts of this Commonwealth only have jurisdiction to entertain

Appellant’s claims if he successfully avails himself of one of the three

timeliness exceptions set forth in 42 Pa.C.S. § 9545(b)(1). In his brief, and

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earlier in his pro se PCRA petition, Appellant made no attempt to satisfy this

burden.

      Moreover, in his pro se petition, Appellant only asserted a single illegal

sentencing claim, averring that his sentence was illegal pursuant to Alleyne.

In Alleyne, the Supreme Court of the United States held that any fact that

increases mandatory-minimum sentence for crime is an element of a crime,

not sentencing factor and, as such, must be submitted to jury and proven

beyond a reasonable doubt. However, whether Appellant’s sentence violated

Alleyne is immaterial in this case, as it is now well-settled that “Alleyne does

not   apply   retroactively   to   cases    pending   on    collateral   review.”

Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016). Thus, the

sole claim raised in Appellant’s pro se PCRA petition cannot meet any

exception to the PCRA’s timeliness requirements.

      In his brief, Appellant also presents a multitude of claims concerning the

ineffectiveness of his prior trial, direct appeal, and first-PCRA attorneys. None

of these claims were raised in the instant PCRA petition under consideration.

In any event, such claims cannot be used to invoke a timeliness exception,

even had they been preserved. “It is well settled that allegations of ineffective

assistance of counsel will not overcome the jurisdictional timeliness

requirements of the PCRA.” Commonwealth v. Wharton, 886 A.2d 1120,

1127 (Pa. 2005).

      Finally, Appellant argues that the PCRA court erred by accepting PCRA

counsel’s Turner/Finley letter because counsel, in his communications with

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Appellant, indicated to him he was unable to locate or obtain and, therefore,

review, numerous court records in this case. Appellant contends PCRA counsel

was ineffective in this regard, under the assumption that, had counsel

reviewed those documents, he would have amended Appellant’s PCRA petition

to include the claims Appellant now raises in his brief.     We disagree that

counsel was ineffective.

      In order to demonstrate the ineffectiveness of counsel, Appellant must

demonstrate “(1) that the claim is of arguable merit; (2) that counsel had no

reasonable strategic basis for his or her action or inaction; and, (3) that, but

for the errors and omissions of counsel, there is a reasonable probability that

the outcome of the proceedings would have been different.” Commonwealth

v. Kimball, 724 A.2d 326, 333 (Pa. 1999). “Failure to prove any prong of

this test will defeat an ineffectiveness claim.” Commonwealth v. Fears, 86

A.3d 795, 804 (Pa. 2014).

      Here, Appellant has not argued, much less demonstrated, that any claim

overlooked by PCRA counsel could satisfy an exception to the jurisdictional

timeliness requirements of the PCRA. Accordingly, there is no “reasonable

probability that the outcome of the” PCRA “proceedings would have been

different.” Kimball, 724 A.2d at 333. Thus, Appellant cannot show that PCRA

counsel was ineffective, as he was not prejudiced by counsel’s filing of a

Turner/Finley letter and motion to withdraw.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/19




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