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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA             :       IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA

                 v.


    GURINDER SINGH

                      Appellant              :       No. 2975 EDA 2016

                  Appeal from the PCRA Order August 22, 2016
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0002760-2012


BEFORE:      LAZARUS, SOLANO, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                                   FILED MAY 08, 2017


        Appellant Gurinder Singh appeals from the order entered in the Court

of Common Pleas of Delaware County on August 22, 2016, denying his

second petition for relief filed pursuant to the Post Conviction Relief Act

("PCRA").1    In addition,   counsel   has       filed   an   Application to Withdraw

Appearance. Upon review, we grant counsel's motion seeking to withdraw

and affirm the order of the PCRA court.

        The trial court summarized the relevant facts and procedural history

herein as follows:

              On February 24, 2012, the Appellant was arrested and
        charged with First -Degree Murder, Third -Degree Murder, and


*   Former Justice specially assigned to the Superior Court.
1   42 Pa.C.S.A. §§ 9541-9546.
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        related charges, in connection with the death of his wife.
        Appellant contends that his wife committed suicide because of
        the shame resulting from their daughter marrying a Muslim man.
        Appellant and his wife were followers of the Sikh religion and did
        not approve of their daughter's marriage. The Delaware County
        Coroner determined that the death of Appellant's wife, Jaswinder
        Kaur, was a homicide by asphyxiation, assaulted by another.'
               On April 30, 2012, a Preliminary Hearing was held and Mr.
        Scott Kramer, Esquire represented the Appellant. On May 10,
        2012, Appellant was arraigned. On October 5, 2012, the
        Commonwealth filed a "Motion to Introduce Evidence of the
        Defendant's prior bad acts against the victim under Pa.R.E.
        404(b)". (The Commonwealth asserted that on February 20,
        2012, two days prior to the victim's murder, three of the
        Appellant's children witnessed the Appellant threaten to kill the
        victim. On the same date, the children observed the Appellant
        strike and slap the victim about her face and body). (Motion p.
        2)2
              On December 4, 2012, Appellant entered a non -negotiated
        Guilty Plea to Third -Degree Murder. On January 23, 2013, the
        court held a Sentencing Hearing3. At the Hearing, the
        Commonwealth asked the court to sentence Appellant to a
        period of state incarceration of 20 to 40 years. (N.T. 1/23/13 p.
        30). Appellant's counsel requested the court sentence Appellant
        toward the bottom of the standard range. (N. T. 1/23/13 p. 27).
        On January 23, 2013, the court sentenced Appellant to: 15 to 30
        years, SCI, followed by five years consecutive state probation
        with credit for time served from 2/22/12 to 1/23/13. (N. T.
        1/23/13 p. 35-36).
               On February 5, 2013, Appellant's Plea Counsel filed a
        Motion for Reconsideration of Sentence, which was denied on
        March 4, 2013. Appellant never filed a timely Notice of Appeal to
        the Superior Court. However, on October 11, 2013, Appellant's
        Plea Counsel filed an untimely Notice of Appeal at 2878 EDA
        2013, which was withdrawn by Plea Counsel on November 26,
        2013.
        PCRA I:
               On March 3, 2014, Appellant filed a pro se PCRA Petition
        alleging inter alia that Plea Counsel failed to file a timely notice
        of appeal. (pro se PCRA Petition p. 3). On March 5, 2014, an
        order was entered appointing Steve Molineux, Esquire as PCRA
        counsel. On November 5, 2014, Mr. Molineux, Esquire filed a "No
        Merit" letter. On January 9, 2015, the undersigned entered an
        Order dismissing the Post -Conviction Relief Act Petition. On

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        January 29, 2015, the Appellant filed a timely Notice of Appeal to
        the Pennsylvania Superior Court and it was docketed at No. 437
        EDA 2015. The Superior Court issued a Memorandum Opinion
        filed December 29, 2015. The Opinion affirmed the PCRA denial
        order, holding the Petition was untimely.
        PCRA II:
               On April 28, 2016, Appellant filed his second pro se PCRA
        Petition. The court appointed Scott Galloway, Esquire, as PCRA
        counsel. On July 11, 2016, Mr. Galloway, filed an "Amended
        Petition for Post Conviction Collateral Relief". On July 27, 2016,
        the Commonwealth responded. On August 9, 2016, the court
        filed a Notice of Intent to Dismiss PCRA Petition without a
        Hearing. On August 22, 2016, the undersigned entered an Order
        dismissing the Appellant's second Post -Conviction Relief Act
        Petition.
               On September 19, 2016, Appellant filed a timely Notice of
        Appeal. Consequently, pursuant to Pa. R.A.P. 1925(b), the Court
        ordered Appellant to file a Concise Statement of Errors
        Complained of on Appeal. On September 21, 2016, Appellant
        filed a Concise Statement    .   .   .   .




        'Affidavit of Probable Cause p.2. (Affidavit of Probable Cause,
        Criminal Complaint, and Post Mortem Report were made part of
        the Guilty Plea and admitted into evidence as a basis for the
        Plea. (N. T. 12/4/12 pp. 21-22).
        2 The Appellant entered a Plea before the Motion was heard by

        the court.
        3 Three of the Appellant's five children testified at the Sentencing

        Hearing and each one testified against the Appellant. His son
        Praduc Singh testified: "All I want to say is I want him to receive
        the maximum punishment for what he did. That's all I want to
        say. I don't support him at all." (N.T. 12/4/12 p.12; p.14; p.21).
Trial Court Opinion, filed January 10, 2017, at 1-4.

        On February 22,     2017, counsel filed his Application to Withdraw

Appearance and       a   purported           Turner/Finely   brief2   with this   Court.3




2Commonwealth 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 has not responded to the petition to withdraw as counsel, nor has

he retained alternate counsel for this appeal.

        Prior to addressing the merits of Appellant's claims on appeal, we must

first decide whether counsel has fulfilled the procedural requirements for
withdrawing his representation.      Commonwealth v. Daniels, 947 A.2d
795, 797 (Pa.Super. 2008). This Court has listed the conditions to be met

by counsel in seeking to withdraw in   a   collateral appeal 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.

(Footnote Continued)

3 Counsel erroneously purports to withdraw under Anders v. California,
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 2d 493 (1967), which applies when
counsel seeks to withdraw from representation on direct appeal. When
counsel seeks to withdraw from representation on collateral appeal, as is the
case herein, the dictates of Finley and Turner are applicable.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007) (counsel
petitioning to withdraw from PCRA representation must proceed not under
Anders, but under Turner and Finley). However, because an Anders brief
provides greater protection to a defendant, this Court may accept an
Anders brief in lieu of a Turner/Finley "no merit" letter. Commonwealth
v. Reed, 107 A.3d 137, 139 n. 5 (Pa.Super. 2014).          We will refer to
counsel's erroneously titled Anders Brief as a Turner/Finley brief.



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* * *

         [W]here counsel submits a petition and no -merit letter that ...
         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.

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

          Herein,   counsel   indicates   he    had   made    a   thorough   review       of

Appellant's case, and after said review concluded the appeal                  is   wholly

frivolous. See Application to Withdraw Appearance, filed 2/22/17, at               1111   2-

3.      Counsel also lists numerous issues relevant to this appeal and explains

why, in his view, they lack merit.         In addition, counsel has attached to his

motion      a   copy of the letter he sent to Appellant wherein counsel advised

Appellant of his right to proceed pro se or through privately -retained

counsel.        Counsel also attached to the letter     a   copy of his application to

withdraw and Turner/Finely brief.               Thus, we conclude that counsel has

substantially complied with the requirements necessary to withdraw as

counsel.        See Commonwealth          v.    Karanicolas, 836 A.2d 940, 947
(Pa.Super. 2003) (holding that substantial compliance with the requirements

to withdraw as counsel will satisfy the           Turner/Finley criteria).4    We now



4
  We note that to withdraw under Anders, counsel must: (1) petition the
Court for leave to withdraw and certify that after a thorough review of the
record, he or she has concluded that the issues to be raised are wholly
(Footnote Continued Next Page)


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review this appeal based on the issues of arguable merit counsel presented

in   the    Turner/Finley brief to ascertain whether they entitle Appellant to
relief.

           Counsel identified the following issues for appellate review:

           1)    The Guilty Plea offer was not knowingly, voluntarily and
          intelligently tendered.
          2)      It was requested of Trial Counsel to provide an interpreter
          knowing that [Appellant] could not properly understand, spell,
          read or write the English language.
          3)      [Appellant] requested Trial Counsel to file a timely Motion
          for Reconsideration of Sentence and Counsel failed to do so.
          4)     Trial Counsel was requested to file a Notice of Appeal to
          the Superior Court which he failed to do in a timely manner
          resulting in said Appeal being withdrawn.


Turner/Finely Brief at             4.

          When reviewing the propriety of an order denying PCRA relief, this

Court       is    limited to   a   determination of whether the evidence of record

supports the PCRA court's conclusions and whether its ruling           is   free of legal

error.           Commonwealth v. Robinson,            Pa.    ,     ,   139 A.3d     178,

185 (2016).           This Court will not disturb the PCRA court's findings unless




(Footnote Continued)

frivolous; (2) file a brief referring to anything in the record that might
arguably support the appeal; and (3) provide a copy of the brief to the
appellant advising him of his right to obtain new counsel or to file a pro se
brief raising any additional points that the appellant deems worthy of review.
Karanicolas, supra at 947.




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there    is no   support for them in the certified record.                Commonwealth v.
Lippert,      85 A.3d 1095, 1100 (Pa.Super. 2014).

        At the outset, we consider whether this appeal is properly before us.

The question of whether          a    petition   is   timely raises   a   question of law, and

where    a    petitioner raises questions of law, our standard of review            is de   novo

and our scope of review is plenary.              Commonwealth v. Callahan,              101 A.3d

118, 121 (Pa.Super. 2014).

        All PCRA petitions must be filed within one year of the date upon which

the judgment of sentence became final,                       unless one of the statutory

exceptions set forth in 42 Pa.C.S.A.                    §   9545(b)(1)(i)-(iii) applies. The
petitioner bears the burden of pleading and proving an applicable statutory

exception.       If the petition     is   untimely and the petitioner has not pled and

proven an exception, the petition must be dismissed without                         a    hearing

because Pennsylvania courts are without jurisdiction to consider the merits

of the petition.      Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super.
2013).

        42 Pa.C.S.A.    §   9545(b)(1)(i)-(iii) states:
        (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 of sentence 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


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        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).   In addition, any petition attempting to invoke

one of these exceptions "shall be filed within 60 days of the date the claim

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

        Herein, Appellant was sentenced on January 23, 2013, and filed an

untimely post -sentence motion on February 5, 2013. As the post -sentence

motion had been untimely filed, it did not toll the time period in which

Appellant was required to file        a   notice of appeal with this Court.       See

Commonwealth v. Green, 862 A.2d 613, 618 (Pa.Super. 2004) (en banc).
As such, Appellant's notice of appeal had to be filed by February 22, 2013.

As Appellant failed to do so, his         judgment of sentence became final for

purposes of the PCRA on that date.            See 42 Pa.C.S.A.      §   9545(b)(3) ("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"); see also U.S. Sup.Ct.R. 13.1.

        A   timely   PCRA   petition had to have been filed by Monday, February

24, 2014; therefore, the instant petition initially filed pro se on April 28,

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2016, was patently untimely, and the burden fell upon Appellant to plead

and prove that one of the enumerated exceptions to the one-year time -bar

applied to his case. See 42 Pa.C.S.A.        §    9545(b)(1); Commonwealth v.

Perrin, 947 A.2d 1284, 1286 (Pa.Super. 2008) (to invoke                      a   statutory

exception to the PCRA time -bar,   a   petitioner must properly plead and prove

all required elements of the exception).

        A prior panel of this Court previously determined we lacked          jurisdiction

to consider Appellant's fourth claim presented herein that his plea counsel

had been     ineffective for failing to file     a   timely notice of Appeal from

Appellant's judgment of sentence because he raised it in an untimely PCRA

petition.    Commonwealth v. Singh,              No. 437    EDA 2015, unpublished

memorandum at 6-8 (Pa.Super. filed December 29, 2015). Therefore, this

claim was previously litigated.    See 42 Pa.C.S.A.          §   9543(a)(3) (requiring

that the allegation of error an appellant presents         in a PCRA   petition has not

been previously litigated or waived); see also 42 Pa.C.S.A.              §   9544(a)(2)

(an issue is previously litigated if "the highest appellate court in which the

petitioner could have had review as    a   matter of right has ruled on the merits

of the issue").

        With regard to the remaining three claims Appellant presents, we find

that he has not pled or proven the applicability of any exception to the            PCRA

time -bar under Section 9545(b), nor does he explain why he could not have

known about these issues until April of 2016.          As such, Appellant's second


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petition filed pursuant to the PCRA   is   manifestly untimely and this Court

lacks jurisdiction to offer him any form of relief.      Commonwealth v.
Jackson, 30 A.3d 516, 523 (Pa.Super. 2011).

       Motion to withdraw as counsel granted. Order affirmed.


Judgment Entered.




J   seph D. Seletyn,
Prothonotary


Date: 5/8/2017




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