J-S90020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

MUSAYYEB HUNT

                            Appellant               No. 2760 EDA 2015


              Appeal from the PCRA Order Dated August 12, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): MC-51-CR-0028529-2012
                                          MC-51-CR-0028530-2012


BEFORE: OTT, J., SOLANO, J., and JENKINS, J.

MEMORANDUM BY SOLANO, J.:                       FILED DECEMBER 30, 2016

        Appellant, Musayyeb Hunt, appeals from the order denying his petition

filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

Counsel also filed a petition to withdraw pursuant to Turner/Finley.1     We

affirm and grant counsel’s petition to withdraw.

        On February 8, 2013, Appellant pleaded guilty to two counts of theft

by unlawful taking2 and was sentenced to an aggregate sentence of three

years’ probation.       On August 22, 2013, Appellant filed a pro se PCRA

petition, which he amended pro se on March 21, 2014.
____________________________________________


1
  Commonwealth v. [Geary] Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
2
    18 Pa.C.S. § 3921(a).
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       On April 9, 2014, Attorney Tingle entered his appearance for

Appellant, and on July 28, 2014, Attorney Tingle filed a petition to withdraw

pursuant to Turner/Finley. On December 18, 2014, after providing notice

pursuant to Pa.R.Crim.P. 907, the PCRA court granted Attorney Tingle’s

petition to withdraw and appointed Attorney Mosser to represent Appellant.

       On January 14, 2015, Appellant filed a “Motion for Waiver of Counsel,”

requesting that he be permitted to proceed pro se for his PCRA petition; no

action was taken on this motion. On March 17, 2015, Attorney Mosser filed

an amended PCRA petition. On July 16, 2015, he filed a corrected amended

PCRA petition, alleging that Appellant timely requested trial counsel to file a

direct appeal but counsel failed to do so. The petition thus asked the PCRA

court to reinstate Appellant’s direct appeal rights nunc pro tunc. The PCRA

court denied Appellant’s PCRA petition on August 12, 2015. Appellant timely

appealed on September 11, 2015, and complied with Pa.R.A.P. 1925(b).

       Appellant’s sentence ended on February 8, 2016.3      The PCRA court’s

Rule 1925(a) decision reasoned that Appellant was not entitled to relief

because Appellant was no longer serving his sentence of probation. PCRA

Ct. Op., 5/20/16, at 2. On May 24, 2016, Appellant’s certified record was

transmitted to this Court.        On September 15, 2016, Attorney Mosser also

____________________________________________


3
  This date is three years after February 8, 2013, with no applicable credit
for time served; Appellant is therefore not “currently serving a sentence.”
See 42 Pa.C.S. § 9543(a)(1)(i).



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filed a Turner/Finley letter and brief with this Court, along with a motion to

withdraw as counsel.   He averred that Appellant’s appeal is moot because

his sentence expired. Appellant did not file a pro se or counseled response

to the Turner/Finley letter.

      The Turner/Finley brief did not include a statement of questions

involved on appeal.     See Pa.R.A.P. 2116(a) (requiring brief to “state

concisely the issues to be resolved” and adding, “No question will be

considered unless it is stated in the statement of questions involved or is

fairly suggested thereby”). Nevertheless, we discern Appellant is asserting

that the PCRA court erred by refusing to reinstate his direct appeal rights

nunc pro tunc, because, allegedly, he repeatedly and timely requested that

his trial counsel file a direct appeal. See Appellant’s Rule 1925 Statement of

Matters Complained of on Appeal; Finley Letter, 9/15/16, at 1-3. Counsel,

however, explains that this issue lacks merit because Appellant’s sentence

has expired, rendering this appeal moot.     Finley Letter, 9/15/16, at 8-9.

Additionally, Attorney Mosser asserts that there are no other issues of

arguable merit. Id.

      Our standard of review of a PCRA court’s denial of a PCRA petition is

limited to examining whether the PCRA court’s determination is supported by

the record evidence and free of legal error.    Commonwealth v. Wilson,

824 A.2d 331, 333 (Pa. Super. 2003) (en banc).            Before we review

Appellant’s claim, however, we must ascertain whether counsel satisfied the


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requirements to withdraw.    Commonwealth v. Freeland, 106 A.3d 768,

774-75 (Pa. Super. 2014). The Court in Freeland explained:

      The Turner/Finley decisions provide the manner for post-
      conviction counsel to withdraw from representation.           The
      holdings of those cases mandate an independent review of the
      record by competent counsel before a PCRA court or appellate
      court can authorize an attorney’s withdrawal. The necessary
      independent review requires counsel to file a “no-merit” letter
      detailing the nature and extent of his review and list each issue
      the petitioner wishes to have examined, explaining why those
      issues are meritless. The PCRA court, or an appellate court if the
      no-merit letter is filed before it, see Turner, supra, then must
      conduct its own independent evaluation of the record and agree
      with    counsel    that    the    petition  is   without   merit.
      See [Commonwealth v.] Pitts[, 603 Pa. 1, 3 n.1, 981 A.2d
      875, 876 n.1 (2009)].

      In Commonwealth v. Friend, 896 A.2d 607 (Pa. Super.
      2006) abrogated in part by Pitts, supra, this Court imposed
      additional requirements on counsel that closely track the
      procedure for withdrawing on direct appeal.              Pursuant
      to Friend, counsel is required to contemporaneously serve upon
      his client his no-merit letter and application to withdraw along
      with a statement that if the court granted counsel’s withdrawal
      request, the client may proceed pro se or with a privately
      retained attorney.       Though Chief Justice Castille noted
      in Pitts that this Court is not authorized to craft procedural
      rules, the Court did not overturn this aspect of Friend as those
      prerequisites did not apply to the petitioner in Pitts. See Pitts,
      supra at 881 (Castille, C.J., concurring).

      After the decision in Pitts, this Court held in Commonwealth v.
      Widgins, 29 A.3d 816 (Pa. Super. 2011), that the additional
      procedural requirements of Friend were still applicable during
      collateral review.

Id.

      Here, we conclude that counsel’s Turner/Finley no-merit letter

complies with all of these requirements. See Freeland, 106 A.3d at 774-

75. Accordingly, we conduct our own independent evaluation of the record

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to ascertain whether we agree with counsel that Appellant is not entitled to

relief. See id.

      Eligibility for relief under the PCRA is governed by 42 Pa.C.S. § 9543,

which provides in pertinent part:

      (a) General rule.—To be eligible for relief under this
      subchapter, the petitioner must plead and prove by a
      preponderance of the evidence all of the following:

            (1) That the petitioner has been convicted of a crime
            under the laws of this Commonwealth and is at the
            time relief is granted:

               (i)  currently serving   a   sentence     of
            imprisonment, probation or parole for the crime
            ....

42 Pa.C.S. § 9543(a) (emphasis added).

      In our recent opinion, Commonwealth v. Plunkett, ___ A.3d ___,

2016 WL 7030486 (Pa. Super., Dec. 2, 2016), we noted the following:

      The general proposition that a petitioner must be currently
      serving the sentence for the crime has been applied in numerous
      PCRA cases. See Commonwealth v. [Emma] Turner, 80 A.3d
      754 (Pa. 2013); Commonwealth v. Stultz, 114 A.3d 865 (Pa.
      Super. 2015); Commonwealth v. Williams, 977 A.2d 1174
      (Pa. Super. 2009); Commonwealth v. Pagan, 864 A.2d 1231
      (Pa. Super. 2004); and Commonwealth v. Hayes, 596 A.2d
      195 (Pa. Super. 1991) (en banc). All of these cases differ from
      the instant case in that . . . the petitioner had served the
      sentence prior to any PCRA hearing or order disposing of the
      PCRA petition. Here, Plunkett completed his sentence after the
      PCRA hearing and order denying him relief, as well as after filing
      his notice of appeal, but prior to the transmittal of the certified
      record to this Court. Our review of case law leads us to conclude
      this difference does not negate the applicability of the statutory
      language of Section 9543(a)(1)(i) to this case. . . . Because
      Plunkett’s sentence has expired, he is no longer entitled to PCRA
      relief. Accordingly, we affirm the PCRA court’s order.

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Id. at *2 (affirming denial of PCRA relief because the defendant completed

his sentence during the pendency of his appeal from the order denying his

PCRA petition).

      Similar to the defendant in Plunkett, Appellant completed his

sentence after the PCRA hearing and order denying him relief, as well as

after filing his notice of appeal, but prior to the transmittal of the certified

record to this Court. The statutory language of Section 9543(a)(1)(i) thus

applies to this case.   See Plunkett, 2016 WL 7030486, at *2.          Because

Appellant’s sentence expired during the pendency of his appeal, he is not

entitled to relief pursuant to the PCRA. 42 Pa.C.S. § 9543(a)(1)(i);

Plunkett, 2016 WL 7030486, at *2.            Hence, we affirm the PCRA court’s

order and grant counsel’s petition to withdraw.

      Petition to withdraw granted. Order affirmed.


Judge Ott joins the memorandum.

Judge Jenkins concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/2016




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