J-S50027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

BRYAN ROBERT FREEMAN

                            Appellant                No. 1757 EDA 2014


                   Appeal from the PCRA Order May 23, 2014
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0001077-1995

BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                          FILED OCTOBER 21, 2015

       Appellant, Bryan Robert Freeman, appeals from the May 23, 2014

order dismissing, as untimely, his third petition for relief filed pursuant to

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

addition, Appellant’s counsel has filed with this Court a petition to withdraw,

together with a Turner/Finley1 no-merit letter, averring the appeal is

without merit. After careful review, we grant counsel’s petition to withdraw

and affirm.

       We summarize the relevant procedural history from the certified

record in this case as follows. On December 7, 1995, the trial court imposed

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1
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super 1988) (en banc).
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a sentence of life imprisonment without the possibility of parole after

Appellant pled guilty to first-degree murder,2 committed when he was 17

years old. Appellant did not appeal his sentence to this Court. Accordingly,

his judgment of sentence became final on January 8, 1996, when the time to

file a notice of appeal to this Court expired.3 See 42 Pa.C.S.A. § 9545(b)(3)

(stating, “a judgment 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[]”); Pa.R.A.P. 903(c) (stating, “[i]n a criminal case in which no

post-sentence motion has been filed, the notice of appeal shall be filed

within 30 days of the imposition of the judgment of sentence in open

court[]”). Therefore, Appellant had until January 16, 1997 to timely file a

PCRA petition.4      See 42 Pa.C.S.A. § 9545(b)(1) (stating, “[a]ny petition

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2
    18 Pa.C.S.A. § 2502(a).
3
  We observe that the 30th day fell on Saturday, January 6, 1996. When
computing the 30-day filing period, “[if] the last day of any such period shall
fall on Saturday or Sunday, or on any day made a legal holiday …, such day
shall be omitted from the computation.” 1 Pa.C.S.A. § 1908. Therefore, the
30th day for Appellant to file a timely notice of appeal was on Monday,
January 8, 1996.
4
  The 1995 amendments to the PCRA initiated the current one-year time-
bar. The 1995 amendments also granted prisoners whose judgment of
sentence had become final by the implementation of the time-bar, one year
from the effective date of the amendments to file their first PCRA petition.
Act of November 17, 1995, P.L. 1118, No. 32 (Spec. Sess. No. 1), § 3(1).
The effective date of the 1995 amendments was January 16, 1996.
(Footnote Continued Next Page)


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under this subchapter, including a second or subsequent petition, shall be

filed within one year of the date the judgment becomes final[]”).

      Thereafter, Appellant filed, pro se, a timely PCRA petition on January

10, 1997. Appellant later withdrew the petition on April 23, 1997.

      On September 15, 2005, Appellant filed, pro se, a second untimely

PCRA petition. The PCRA court dismissed the petition on January 17, 2006,

and this Court dismissed the appeal due to counsel’s failure to file a brief.

Commonwealth v. Freeman, 335 EDA 2006 (Pa. Super. 2006). Appellant

did not file a petition for allowance of appeal with our Supreme Court.

      On July 6, 2010, Appellant filed, pro se, a third PCRA petition that is

the subject of this appeal.         The PCRA court appointed counsel on July 15,

2010. On September 2, 2010, the PCRA court stayed the PCRA proceedings

pending the decision of our Supreme Court in Commonwealth v. Batts, 66

A.3d 286 (Pa. 2013).           Thereafter, Appellant’s counsel filed an amended

PCRA petition on August 16, 2012. The PCRA court again stayed the PCRA

proceedings     pending       our   Supreme       Court’s   decision   of   Batts   and

Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), cert. denied,

Cunningham v. Pennsylvania, 134 S. Ct. 2724 (2014). On April 1, 2014,

                       _______________________
(Footnote Continued)

Accordingly, “a petitioner’s first PCRA petition, that would otherwise be
considered untimely because it was filed more than one year after the
judgment of sentence became final, would be deemed timely if it was filed
by January 16, 1997.” Commonwealth v. Thomas, 718 A.2d 326, 329
(Pa. Super. 1998) (en banc).



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the PCRA court issued notice of its intention to dismiss the amended petition

without a hearing pursuant to Pennsylvania Rule of Criminal Procedure 907.

Appellant did not respond to the Rule 907 notice.      On May 23, 2014, the

PCRA court lifted the stay and dismissed the amended petition.        Appellant

timely filed, pro se, a notice of appeal on June 10, 2014.5

       On March 26, 2015, counsel filed a petition to withdraw in this Court,

together with a Turner/Finley no-merit letter. On May 13, 2015, Appellant

filed a pro se answer to the Turner/Finley letter.

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5
  On June 12, 2014, the PCRA court ordered Appellant’s counsel to file,
within 21 days, a concise statement of errors complained of on appeal
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Appellant’s
counsel filed a Rule 1925(b) concise statement on July 3, 2014. On August
28, 2014, the PCRA court filed its Rule 1925(a) opinion, explaining that the
petition was time-barred.

      Moreover, we note that we have held that a criminal defendant’s pro
se actions have no legal effect while he or she remains represented by
counsel. Commonwealth v. Hall, 476 A.2d 7, 9-10 (Pa. Super. 1984); see
also Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007)
(noting that a defendant’s pro se filings while represented by counsel are
legal nullities), appeal denied, 936 A.2d 40 (Pa. 2007). However, our
Supreme Court has held that a pro se notice of appeal filed by an appellant
while represented by counsel shall be considered merely premature if
counsel and the trial court take appropriate actions to perfect the appeal.
Commonwealth v. Cooper, 27 A.3d 994, 1008 (Pa. 2011).

       Herein, after Appellant filed his pro se notice of appeal, the PCRA court
directed counsel to file a Rule 1925(b) statement, and counsel then
complied. Further, counsel filed a Rule 3517 docketing statement with this
Court, indicating that he was representing Appellant.            Superior Court
Criminal Docketing Statement, 7/7/14, at 1. Accordingly, the PCRA court
and counsel’s actions effectively perfected this appeal, and we have
jurisdiction to address the merits of this appeal. See id.



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       In his Turner/Finley letter, counsel identifies the following issues

Appellant seeks to have reviewed as taken from Appellant’s Rule 1925(b)

statement.

                    1. [Whether] the trial court erred in denying
              his petition for writ of habeas corpus when the trial
              court treated the petition for writ of habeas corpus
              as a petition for post collateral relief[?]

                    2. [Whether] the trial court erred in denying a
              hearing on the merits of his petition for writ of
              habeas corpus[?]

                    3. [Whether] the trial court erred in not
              vacating Appellant’s juvenile life without parole
              sentence which he is currently serving[?]

                    4. [Whether] the trial court erred in not
              holding a new sentencing hearing in light of the
              [United States Supreme Court] ruling in Miller [v.
              Alabama, 132 S. Ct. 2455 (2012)][?]

Turner/Finley Letter at 2.6

       In   his   pro   se   answer     to     counsel’s   petition   to   withdraw   and

Turner/Finley letter, Appellant sets forth six additional issues, in which he

contends that the PCRA court improperly addressed his petition under the

PCRA, instead of as a habeas corpus petition, and that the PCRA court




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6
  We note that counsel’s Turner/Finley letter does not contain pagination.
For ease of review, we have assigned each page a corresponding page
number.




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should have applied Miller retroactively.7 Appellant’s   Pro    Se    Answer,

5/13/15, at 1-3.

       “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.”        Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied,

Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013). “[Our] scope of review

is limited to the findings of the PCRA court and the evidence of record,

viewed in the light most favorable to the prevailing party at the PCRA court

level.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation

omitted). In order to be eligible for PCRA relief, a petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2).

These issues must be neither previously litigated nor waived. 42 Pa.C.S.A.

§ 9543(a)(3).      “[T]his Court applies a de novo standard of review to the

PCRA court’s legal conclusions.” Commonwealth v. Spotz, 18 A.3d 244,

259 (Pa. 2011) (citation omitted).

       In this case, the PCRA court dismissed Appellant’s PCRA petition

without conducting a hearing.

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7
  We do not reproduce Appellant’s issues, verbatim, because they are not
relevant to our disposition.




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                  [T]he right to an evidentiary hearing on a post-
            conviction petition is not absolute. It is within the
            PCRA court’s discretion to decline to hold a hearing if
            the petitioner’s claim is patently frivolous and has no
            support either in the record or other evidence. It is
            the responsibility of the reviewing court on appeal to
            examine each issue raised in the PCRA petition in
            light of the record certified before it in order to
            determine if the PCRA court erred in its
            determination that there were no genuine issues of
            material fact in controversy and in denying relief
            without conducting an evidentiary hearing.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012), quoting

Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa. Super. 2007)

(citations omitted), appeal denied, 940 A.2d 365 (Pa. 2007); see also

Pa.R.Crim.P. 907.   “We stress that an evidentiary hearing is not meant to

function as a fishing expedition for any possible evidence that may support

some speculative claim ….” Commonwealth v. Roney, 79 A.3d 595, 604-

605 (Pa. 2013) (citations and internal quotation marks omitted), cert.

denied, Roney v. Pennsylvania, 135 S. Ct. 56 (2014). We review a PCRA

court’s decision to dismiss without a hearing for abuse of discretion. Id. at

604.

       Before we consider Appellant’s arguments, we must review PCRA

counsel’s request to withdraw from representation.       As described by our

Supreme Court, the requirements PCRA counsel must adhere to when

requesting to withdraw include the following.

                  1) A “no-merit” letter by PC[R]A counsel
                  detailing the nature and extent of his review;


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                    2) The “no-merit” letter by PC[R]A counsel
                    listing each issue the petitioner wished to have
                    reviewed;

                    3) The PC[R]A counsel’s “explanation”, in the
                    “no-merit” letter, of why the petitioner’s issues
                    were meritless[.]

Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009), quoting

Finley, supra at 215. “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.” Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super.

2007).

                    [W]here 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.

Id. (citation omitted).

      Here, we conclude that counsel has complied with the technical

requirements of Turner/Finley. Specifically, counsel’s Turner/Finley letter

details the nature and extent of his review, addresses the claims Appellant

raised in his amended PCRA petition and Rule 1925(b) statement, and

determines that the issues lack merit.        Counsel provides a discussion of

Appellant’s    claims,    explaining   why   the   issues   are   without   merit.


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Additionally, counsel served Appellant with a copy of the petition to withdraw

and Turner/Finley brief, advising Appellant that, if counsel was permitted

to withdraw, Appellant had the right to proceed pro se or with privately

retained counsel. We proceed, therefore, to conduct an independent merits

review of Appellant’s claims.

       Turning to the merits of Appellant’s issues on appeal, Appellant’s PCRA

petition is facially untimely, as it was filed over 14½ years after his sentence

became final.        Appellant’s amended PCRA petition asserts the newly

recognized constitutional right exception to the PCRA time-bar in Section

9545(b)(1)(iii).      Appellant’s Amended PCRA Petition, 8/16/12, at 2. 8

Appellant argues that the United States Supreme Court’s decision in Miller

should be retroactively applied. Appellant’s Pro Se Answer, 5/13/15, at 2-3.

However, our Supreme Court has rejected that argument.9 Cunningham,

supra at 11.       To the extent Appellant argues that this Court should give

broader retroactive effect to Miller under Danforth v. Minnesota, 552 U.S.

264 (2008), this Court lacks the judicial power to decide that question for

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8
  We note that Appellant’s amended PCRA petition does not contain
pagination.   For ease of review, we have assigned each page a
corresponding page number.
9
  On March 23, 2015, the Supreme Court granted certiorari in Montgomery
v. Louisiana, 135 S. Ct. 1546 (2015), which presents the Miller
retroactivity question. Nonetheless, until the United States Supreme Court
issues its decision, Cunningham remains dispositive of the issue in
Pennsylvania.



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the purposes of the PCRA time-bar.       See 42 Pa.C.S.A. § 9545(b)(1)(iii)

(allowing a time-bar exception for “a constitutional right that was recognized

by the Supreme Court of the United States or the Supreme Court of

Pennsylvania … and has been held by that court to apply retroactively[]”).

      Appellant also argues that he is entitled to habeas corpus relief outside

of the parameters of the PCRA.      Appellant’s Brief at 16.   This Court has

explained that claims pertaining to Miller go to the legality of the sentence.

Commonwealth v. Brown, 71 A.3d 1009, 1015-1016 (Pa. Super. 2013),

appeal denied, 77 A.3d 635 (Pa. 2013).       Legality of sentence claims are

expressly cognizable under the PCRA.         42 Pa.C.S.A. § 9543(a)(2)(vii);

accord Commonwealth v. Beck, 848 A.2d 987, 989 (Pa. Super. 2004)

(citation omitted). Therefore, because Appellant’s “claim[] [was] cognizable

under the PCRA … the writ of habeas corpus was not available.”

Commonwealth v. Turner, 80 A.3d 754, 770 (Pa. 2013) (citation omitted),

cert. denied, Turner v. Pennsylvania, 134 S. Ct. 1771 (2014); see also

42 Pa.C.S.A. § 9542 (stating that the PCRA “shall be the sole means of

obtaining collateral relief and encompasses all other common law and

statutory remedies for the same purpose that exist when this subchapter

takes effect, including habeas corpus and coram nobis[]) (italics added).

      Based on the foregoing, we agree with counsel that the issues

Appellant raises in this appeal are meritless. Further, the trial court did not

abuse its discretion by disposing of Appellant’s untimely petition without a


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hearing.     See Roney, supra.          Therefore, we grant counsel’s petition to

withdraw, and we conclude the PCRA court properly dismissed Appellant’s

PCRA petition without a hearing as untimely.10            Accordingly, the PCRA

court’s May 23, 2014 order is affirmed.

        Order affirmed. Petition to withdraw as counsel granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/21/2015




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10
     In light of our conclusion, we do not address Appellant’s remaining claims.



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