J-S56010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                   Appellee               :
                                          :
              v.                          :
                                          :
 DAVID CREWS                              :
                                          :
                   Appellant              :        No. 221 MDA 2018

             Appeal from the PCRA Order December 29, 2017
             In the Court of Common Pleas of Luzerne County
           Criminal Division at No(s): CP-40-CR-0003228-2010


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

MEMORANDUM BY GANTMAN, P.J.:                    FILED NOVEMBER 19, 2018

     Appellant, David Crews, appeals from the order entered in the Luzerne

County Court of Common Pleas, which denied his second petition brought

pursuant to the Post-Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-

9546. We affirm and grant counsel’s petition to withdraw.

     The relevant facts and procedural history of this case are as follows. On

October 14, 2009, at SCI Dallas, Appellant and another inmate engaged in an

altercation. Appellant, who knew he was HIV positive, threw fecal matter at

five prison guards and threatened a similar action toward a sixth guard.

           On October 18, 2011, Appellant entered an open
           guilty plea to five counts of assault by prisoner and
           one count of terroristic threats with intent to terrorize
           another.      Following the plea, Appellant was
           immediately sentenced to an aggregate term of [7 to
           14] years’ incarceration consecutive to the sentence
           he was currently serving.        Thereafter, Appellant
           accused      counsel      of    misrepresenting      the
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           Commonwealth’s plea offer concerning the statutory
           consecutive sentence. Appellant requested substitute
           conflict counsel and presented an oral motion to
           withdraw his guilty plea. The trial court denied his
           request for new counsel but granted his motion to
           withdraw his guilty plea.

           A jury trial commenced on October 18, 2011[,] and
           Appellant was convicted of [five counts each of assault
           by a prisoner, aggravated harassment by a prisoner,
           and recklessly endangering another person, and one
           count of terroristic threats]. At the end of the trial,
           Appellant acted out and the trial court found him to
           be in contempt. On November 29, 2011, [A]ppellant
           was sentenced to an aggregate term of 10 to 20 years’
           incarceration consecutive to the sentence Appellant
           was previously serving; thus, the court imposed an
           increased sentence. …

        Commonwealth v. Crews, No. 614 MDA 2012,
        unpublished memorandum at 1-3 ([Pa.Super.] filed January
        31, 2013). [This Court] affirmed Appellant’s judgment of
        sentence [on January 31, 2013. See id.] Our affirmance
        was upheld by our Supreme Court [on July 25, 2013].
        Commonwealth v. Crews, [620 Pa. 728,] 70 A.3d 809
        [(2013)].

        On July 30, 2013, Appellant pro se filed a PCRA petition,
        raising a plethora of ineffective assistance of counsel claims.
        [The] PCRA court appointed counsel, who filed an amended
        PCRA petition. [The] PCRA court held a hearing on May 21,
        2015, following which it denied Appellant relief. Appellant
        timely appealed to this Court. …

Commonwealth v. Crews, No. 1725 MDA 2015, unpublished memorandum

at 2-3 (Pa.Super. filed July 11, 2016). On February 16, 2016, Appellant’s

PCRA counsel filed in this Court an application to withdraw as counsel and a

no-merit brief per Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927

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


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banc). This Court affirmed the denial of PCRA relief and granted counsel’s

petition to withdraw on July 11, 2016. See Commonwealth v. Crews, 154

A.3d 850 (Pa.Super. 2016).

        On July 17, 2017, Appellant pro se filed his second PCRA petition. The

PCRA court appointed counsel on August 15, 2017. On December 7, 2017,

the PCRA court held an evidentiary hearing and denied relief on December 29,

2017. On Monday, January 29, 2018, Appellant timely filed a notice of appeal.

The PCRA court did not order and Appellant did not file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

        On July 16, 2018, PCRA counsel filed an application to withdraw and a

Turner/Finley brief in this Court. This Court issued an order on July 19,

2018, which noted counsel’s Friend1 letter incorrectly stated Appellant’s

representation rights, and directed counsel to advise Appellant of his

immediate right to retain private counsel or proceed pro se. On August 13,

2018, this Court issued a follow-up order, and counsel complied on August 16,

2018.

        As a prefatory matter, we address whether counsel has complied with

the technical requirements of Turner/Finley.      “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’



____________________________________________


1   Commonwealth v. Friend, 896 A.2d 607 (Pa.Super. 2006).

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[brief] 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

with new counsel. Id. “Substantial compliance with these requirements will

satisfy the criteria.” Karanicolas, supra at 947.

      Instantly, counsel filed a motion to withdraw as counsel and attaches a

Turner/Finley letter referring to the nature of counsel’s review and explaining

why Appellant’s issue lacks merit. Counsel’s letter demonstrates he reviewed

the certified record and found no meritorious issues for appeal.         Counsel

notified Appellant of counsel’s request to withdraw, and advised Appellant

regarding his rights.      Thus, counsel substantially complied with the

Turner/Finley requirements. See Wrecks, supra; Karanicolas, supra.

      On appeal, counsel refers to Appellant’s current complaint as trial

counsel’s failure to cross-examine witnesses on the inconsistencies between

their testimony and information in the affidavit of probable cause. Appellant

has not responded to the Turner/Finley letter brief with newly retained

private counsel or pro se.   Counsel discusses the timeliness of Appellant’s

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current PCRA petition and explains that his claim of ineffectiveness of trial

counsel regarding cross-examination of the prosecution’s witnesses was

previously litigated in his first PCRA petition.   Counsel submits Appellant’s

present claim is simply a variation on the same theme and could/should have

been included in the prior petition. Counsel concludes Appellant’s complaint

does not meet any exception to the statutory time limits, and the petition

remains jurisdictionally barred.

      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). A court may

not examine the merits of a petition for post-conviction relief that is untimely.

Commonwealth v. Abu-Jamal, 574 Pa. 724, 735, 833 A.2d 719, 726

(2003).    A PCRA petition must be filed within one year of the date the

underlying judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment

is deemed 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). The three statutory exceptions to the timeliness provisions in the

PCRA allow for very limited circumstances under which the late filing of a

petition will be excused. To invoke an exception, a petition must allege and

the petitioner must prove:

          (i) the failure to raise a claim previously was the result of
          interference by government officials with the presentation

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         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).       A petitioner asserting a timeliness

exception must file a petition within sixty days of the date the claim could

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

      Instantly, the judgment of sentence became final on October 23, 2013,

upon expiration of the time to file a petition for writ of certiorari with the U.S.

Supreme Court. See U.S.Sup.Ct.R. 13 (allowing 90 days to file petition for

writ of certiorari). Appellant filed the instant PCRA petition on July 17, 2017,

which is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant’s claim

of ineffective assistance of trial counsel, related to defense counsel’s cross-

examination of the Commonwealth’s witnesses at trial, is either previously

litigated or waived. In any event, the claim does not satisfy an exception to

the PCRA time bar. See Commonwealth v. Gamboa-Taylor, 562 Pa. 70,

753 A.2d 780 (2000) (explaining general rule that claim of ineffective

assistance of counsel does not save otherwise untimely PCRA petition for

review on merits). Following our independent review of the record, we agree


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with counsel that Appellant’s petition remains unreviewable on several

grounds and the appeal is frivolous.      Accordingly, we affirm and grant

counsel’s petition to withdraw.

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

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/19/2018




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