J-S84013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    GARY ARMSTRONG,

                             Appellant               No. 1879 EDA 2017


               Appeal from the PCRA Order Entered May 19, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0512081-2002

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

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

        Appellant, Gary Armstrong, appeals from the post-conviction court’s

May 19, 2017 order denying his petition for relief filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.            Additionally,

Appellant’s counsel, Benjamin B. Cooper, Esq., has filed a petition to withdraw

from representing Appellant, along with an Anders1 brief. While a

Turner/Finley2 no-merit letter is the appropriate filing when counsel seeks

to withdraw on appeal from the denial of PCRA relief, we will accept Attorney

Cooper’s Anders brief in lieu of a Turner/Finley no-merit letter.         See

Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011)

____________________________________________


1   Anders v. California, 386 U.S. 738 (1967).

2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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(“Because an Anders brief provides greater protection to a defendant, this

Court may accept an Anders brief in lieu of a Turner/Finley letter.”) (citation

omitted).   After careful review, we affirm the PCRA court’s order denying

Appellant’s petition and grant Attorney Cooper’s petition to withdraw.

      The PCRA court summarized the pertinent facts and procedural history

of Appellant’s case, as follows:

             On June 11, 1991, [Appellant] and a co-conspirator robbed
      a jewelry store located near 60th and Chestnut Streets,
      Philadelphia. In the course of the robbery, two persons were
      fatally shot through the head. On June 19, 2003, [Appellant] was
      convicted by a jury of two counts of second-degree murder, 18
      Pa.C.S. [§] 2502; and one count each of robbery, 18 Pa.C.S. [§]
      3701, criminal conspiracy, 18 Pa.C.S. [§] 903, [a] violation of the
      Uniform Firearms Act, 18 Pa.C.S. [§] 6106, and possession of an
      instrument of crime, 18 Pa.C.S. [§] 907. The Honorable Jane
      Cutler Greenspan presided. On August 1, 2003, Judge Greenspan
      sentenced [Appellant] to a mandatory life sentence for murder, a
      consecutive term of five to ten years of incarceration for criminal
      conspiracy, and concurrent terms of two to five years of
      incarceration for [the] violation of the Uniform Firearms Act and
      possession of an instrument of crime. Trial counsel was Gary
      Server, Esquire.

           The Superior Court affirmed [Appellant’s] judgment of
      sentence on June 18, 2004…. [Commonwealth v. Armstrong,
      858 A.2d 1270 (Pa. Super. 2004) (unpublished memorandum).]
      The Supreme Court denied [Appellant’s] petition for allowance of
      appeal on November 12, 2004….           [Commonwealth v.
      Armstrong, 863 A.2d 1141 (Pa. 2004).]

             On May 9, 2005, [Appellant], represented by Jules Epstein,
      Esquire, filed his first PCRA [p]etition. On July 9, 2008, the PCRA
      [p]etition was denied. The Superior Court affirmed the order of
      the PCRA [c]ourt on February 26, 2009…. [Commonwealth v.
      Armstrong, 972 A.2d 547 (Pa. Super. 2009) (unpublished
      memorandum).] The Supreme Court denied [Appellant’s] petition
      for   allowance      of    appeal   on    September     9,   2009….
      [Commonwealth v. Armstrong, 980 A.2d 604 (Pa. 2009).]


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            On October 5, 2009, [Appellant], acting pro se, filed his
     second PCRA [p]etition[, which underlies the present appeal]. On
     June 14, 2012, Earl G. Kauffman, Esquire, was appointed to
     represent [Appellant]. On April 30, 2013, Stephen T. O’Hanlon,
     Esquire[,] was appointed to represent [Appellant] in place of Mr.
     Kauffman. On July 26, 2014, [Attorney] O’Hanlon filed an
     [a]mended PCRA [p]etition. This PCRA matter was assigned to
     this court.

            In the [a]mended PCRA [p]etition, [Appellant] claim[ed]
     that trial counsel, [Attorney] Server, failed to convey an offer of a
     guilty plea in exchange for a sentence of 30 to 60 years of
     incarceration.

           Evidentiary hearings were conducted on December 15, 2016
     and March 17, 2017. Defense counsel, [Attorney] Server, and the
     prosecutor, Christopher Phillips, Esquire, testified that they had
     no specific recollection of an offer. (N.T.[,] 3/17/17, [at] 10, 25).
     [Attorney] Server, who has been practicing criminal law since
     1988, testified that if an offer had been made, he would have
     conveyed it to his client. ([Id. at] 5, 10). [Attorney] Server and
     [Attorney] Phillips both testified that if an offer had been made
     and rejected, they would have placed it on the record. ([Id. at]
     10, 25).

            [Appellant’s] brother, Dennis Armstrong[,] testified that he
     heard about the offer on the first day of the murder trial from
     another brother, Daniel Armstrong. Daniel Armstrong had just
     spoken to [Attorney] Server. (N.T.[,] 12/15/16, [at] 5, 8). Daniel
     Armstrong testified that in 2003[,] he had a telephone conference
     with [Attorney] Server in which they discussed an offer of 30 to
     60 years. (N.T.[,] 3/17/17, [at] 36). Daniel Armstrong testified
     that he first mentioned the offer to [Appellant] during a prison
     visit on April 8, 2008. ([Id. at] 37).

            [Appellant] testified that he first heard of the purported plea
     deal in 2008 when he was so informed by Daniel Armstrong. ([Id.
     at] 62).

PCRA Court Opinion (PCO), 11/29/17, at 1-3.

     Ultimately, the PCRA court “determined that the testimony of [Attorney]

Server and [Attorney] Phillips was credible[,]” and “that the testimony of

[Appellant], Dennis Armstrong and Daniel Armstrong lacked credibility.” Id.

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at 4. The court also concluded that Appellant’s petition, filed in October of

2009, was untimely, given that he discovered the alleged plea offer in April of

2008. Id. at 4-5. Accordingly, the court dismissed Appellant’s PCRA petition.

      Appellant filed a timely notice of appeal. Thereafter, the PCRA court

appointed Attorney Cooper as appellate counsel and ordered that Appellant

file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

Appellant timely complied with the court’s order, and the court issued a Rule

1925(a) opinion on November 29, 2017.

      On August 15, 2018, Attorney Cooper filed with this Court a petition to

withdraw and an Anders Brief, asserting that Appellant had no non-frivolous

issues to raise on appeal. Again, as a Turner/Finley letter is the appropriate

filing when counsel seeks to withdraw on appeal from the denial of PCRA relief,

we will assess Attorney Cooper’s petition to withdraw and Anders brief under

the dictates of Turner/Finley, which we have summarized as follows:

      Counsel petitioning to withdraw from PCRA representation must
      proceed ... under [Turner, supra and Finley, supra and] … must
      review the case zealously. Turner/Finley counsel must then
      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 petitioner wants to
      have reviewed, explaining why and how those issues lack merit,
      and requesting permission to withdraw.

      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.
                                    ***
      Where counsel submits a petition and no-merit letter that ...
      satisfy the technical demands of Turner/Finley, the court—trial

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      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.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (internal

citations omitted) (quoting Commonwealth v. Wrecks, 931 A.2d 717, 721

(Pa. Super. 2007)).

      Here, in the brief submitted to this Court, Attorney Cooper states that

he has undertaken “an extensive review of the record” and determined that

the issues Appellant seeks to have reviewed are meritless. Turner/Finley

Brief at 14. Counsel explains how and why he has reached that conclusion

regarding each issue that Appellant set forth in his petition. See id. at 9-13.

Additionally, Attorney Cooper forwarded to Appellant a copy of his petition to

withdraw and his no-merit letter, and he advised Appellant that he has the

immediate right to proceed with this appeal pro se or to hire new counsel.

Thus, Attorney Cooper has complied with his requirements for withdrawal.

      Next, this Court must conduct its own independent review of the record

in light of the issues presented in Appellant’s PCRA petition. Our standard of

review regarding an order denying a petition under the PCRA is whether the

determination of the PCRA court is supported by the evidence of record and is

free of legal error. Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa.

2007). We begin by addressing the timeliness of Appellant’s petition, because

the PCRA time limitations implicate our jurisdiction and may not be altered or

disregarded in order to address the merits of a petition. See Commonwealth

v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the PCRA, any petition

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for post-conviction relief, including a second or subsequent one, must be filed

within one year of the date the judgment of sentence becomes final, unless

one of the following exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii)

applies:

       (b) Time for filing petition.--

           (1) Any petition under this subchapter, including a second
           or subsequent petition, shall be filed within one year of the
           date the judgment becomes final, unless the petition alleges
           and the petitioner proves that:

              (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. § 9545(b)(1)(i)-(iii). Additionally, at the time Appellant’s petition

was filed, section 9545(b)(2) required that any petition attempting to invoke

one of these exceptions “be filed within sixty days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).3


____________________________________________


3 A recent amendment to section 9545(b)(2), which became effective on
December 24, 2018, changed the language to require that a petition “be filed
within one year of the date the claim could have been presented.” 42 Pa.C.S.
§ 9545(b)(2) (emphasis added).

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      Here, Appellant’s judgment of sentence became final on February 10,

2005, 90 days after our Supreme Court denied his petition for allowance of

appeal. See 42 Pa.C.S. § 9545(b)(3) (stating that a judgment of sentence

becomes final at the conclusion of direct review or the expiration of the time

for seeking the review); Commonwealth v. Owens, 718 A.2d 330, 331 (Pa.

Super. 1998) (directing that under the PCRA, petitioner’s judgment of

sentence becomes final 90 days after our Supreme Court rejects his or her

petition for allowance of appeal since petitioner had 90 additional days to seek

review with the United States Supreme Court).       Consequently, Appellant’s

present petition, filed in October of 2009, is patently untimely and, for this

Court to have jurisdiction to review the merits thereof, he must prove that he

meets one of the exceptions to the timeliness requirements set forth above.

      Instantly, in Appellant’s amended petition, he asserted that his trial

counsel, Attorney Server, acted ineffectively by not conveying a plea offer to

Appellant. Appellant asserted that he learned of this undisclosed plea offer

“in August or September of 2009.” Amended PCRA Petition, 7/26/14, at 5.

Appellant averred that his discovery of the plea offer satisfied the timeliness

exception of section 9545(b)(1)(iii). Id.

      Appellant’s reliance on the ‘new retroactive right’ exception of section

9545(b)(1)(iii) is clearly erroneous, as there is no novel, constitutional right

involved in his claim. Moreover, even if we presume that Appellant intended

to cite the after-discovered-fact exception of section 9545(b)(1)(ii), we would

still deem his claim meritless. As the PCRA court points out, the evidence

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offered at the PCRA hearing demonstrated that Appellant learned the ‘new

fact’ of the alleged plea offer on April 8, 2008, when his first, timely petition

was still pending before the PCRA court. See N.T. PCRA Hearing, 3/17/17, at

37. Appellant could have sought to amend that petition to assert his present

ineffectiveness claim, yet he failed to do so. Instead, he waited until October

5, 2009, to file his instant petition setting forth this claim. Thus, the PCRA

court concluded, and we agree, that Appellant failed to raise his after-

discovered fact claim in a timely manner pursuant to section 9545(b)(2).

      Notwithstanding the untimeliness of Appellant’s petition, the PCRA court

assessed the merits of his underlying ineffectiveness claim, rejecting it on the

basis of credibility determinations that are supported by the record.       More

specifically, Appellant’s trial counsel, and the District Attorney who prosecuted

his case, both testified that they had no recollection of any plea offer being

made to Appellant, and if such had occurred, they would have placed it on the

record. See N.T. PCRA Hearing at 10, 25. The court believed their testimony

and did not credit Appellant’s and his brothers’ contrary claims. Accordingly,

even if Appellant had satisfied a timeliness exception, we would discern no

error in the PCRA court’s dismissal of his petition on the merits.

      Thus, we agree with Attorney Cooper that the claims Appellant seeks to

raise on appeal are meritless. Therefore, we affirm the PCRA court’s order

dismissing Appellant’s petition and grant counsel’s petition to withdraw.

      Order affirmed. Petition to withdraw granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/19




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