J-S44032-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                           :   PENNSYLVANIA
              v.                           :
                                           :
DARYL WILLIAMS,                            :
                                           :
                   Appellant               :   No. 1217 EDA 2015

                    Appeal from the PCRA Order April 8, 2015
              in the Court of Common Pleas of Philadelphia County,
                Criminal Division, No(s): CP-51-CR-1221521-1987

BEFORE: FORD ELLIOTT, P.J.E., STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                            FILED JULY 08, 2016

      Daryl Williams (“Williams”) appeals from the Order dismissing his third

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).

See 42 Pa.C.S.A. §§ 9541-9546.        Williams’s counsel, Barnaby C. Wittels,

Esquire (“Wittels”), filed a Turner/Finley1 “no-merit” letter and a Petition

to Withdraw as Counsel. We affirm the Order and grant Wittels’s Petition to

Withdraw.

      In 1989, following a jury trial, Williams was convicted of first-degree

murder and possession of an instrument of crime (“PIC”).       The trial court

sentenced Williams to life in prison for the murder conviction and a

concurrent term of two and one-half to five years in prison for the PIC

conviction.    On February 20, 1990, this Court affirmed the judgment of

sentence.     See Commonwealth v. Williams, 573 A.2d 1161 (Pa. Super.

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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1990) (unpublished memorandum). Williams did not petition for allowance

of appeal to the Pennsylvania Supreme Court.

        Williams has filed two previous PCRA petitions, both of which were

denied.     Williams’s current Petition was filed on June 1, 2012.   The PCRA

court entered a Pennsylvania Rule of Criminal Procedure 907 Notice of

Intention to Dismiss, and thereafter dismissed Williams’s Petition as

untimely.     Williams filed a timely Notice of Appeal.   Thereafter, the PCRA

court appointed Wittels as counsel for the appeal.

        In the Turner/Finley Brief, Wittels raises the following questions for

our review:

        (i) Did the PCRA [c]ourt err in dismissing [Williams’s] PCRA
        [P]etition in which [Williams] asserted that the mandatory
        sentence of life without parole was unconstitutional, pursuant to
        Miller[2] where [Williams] was over the age of eighteen at the
        time of the murder and his sentence became final prior to the
        Court’s decision in [Miller]?

        (ii) Did the PCRA Court err in dismissing [Williams’s] PCRA
        [P]etition as untimely where [Williams] alleged an exception to
        the timeliness requirement based upon newly discovered
        evidence, namely[,] a witness that would have testified to facts
        previously raised before the court?

Turner/Finley Brief at 5 (footnote added).

        Wittels filed a Petition to Withdraw on October 27, 2015. Williams filed

a pro se Response and raises the following questions for our review:

        (i) Did the PCRA court err by dismissing [Williams’s] PCRA
        [P]etition as untimely without an evidentiary hearing[?]


2
    Miller v. Alabama, 132 S. Ct. 2455 (2012).


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        (ii) [W]hether [Williams’s] court appointed attorney’s Anders[3]
        brief is unwarranted in light of the merits of the instant claim[?]

Pro se Brief for Appellant at 4 (numbering and footnote added).

        Prior to addressing Williams’s claims on appeal, we must address

Wittels’s Turner/Finley Brief and accompanying Petition to Withdraw as

Counsel. Pursuant to Turner/Finley, an independent review of the record

by competent counsel is required before withdrawal on collateral appeal is

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

Such independent review requires proof of:

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

        2) The “no-merit” letter by PCRA counsel listing each issue the
        petitioner wished to have reviewed;

        3) The PCRA counsel’s “explanation,” in the “no-merit” letter, of
        why the petitioner’s issues were without merit;

        4) The [] court conducting its own independent review of the
        record; and

        5) The [] court agreeing with counsel that the petition was
        without merit.

Id. (citation and brackets omitted). Further, the Supreme Court in Pitts did

not expressly overrule the additional requirement, imposed by this Court in

Commonwealth v. Friend, 896 A.2d 607, 615 (Pa. Super. 2006), that

        PCRA counsel seeking to withdraw contemporaneously forward
        to the petitioner a copy of the application to withdraw that
        includes (i) a copy of both the “no-merit” letter, and (ii) a
        statement advising the PCRA petitioner that, in the event the

3
    Anders v. California, 386 U.S. 738 (1967).


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       trial court grants the application of counsel to withdraw, the
       petitioner has the right to proceed pro se, or with the assistance
       of privately retained counsel.

Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011).

       Here, in the Turner/Finley Brief, Wittels described the extent of his

review, identified the issues that Williams sought to raise, and explained why

the issues lacked merit. In addition, Wittels provided Williams notice of his

intention to seek permission to withdraw from representation, a copy of the

Turner/Finley Brief, and advised Williams of his rights in lieu of

representation.4 Thus, we conclude that Wittels 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 requirements to withdraw as

counsel will satisfy the Turner/Finley criteria).        We now independently

review Williams’s claims to determine whether they entitle him to relief.

       We review an order dismissing a petition under the PCRA in the light

most favorable to the prevailing party at the PCRA level. Commonwealth

v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “[A]n appellate court reviews the

PCRA court’s findings of fact to determine whether they are supported by the

record, and reviews its conclusions of law to determine whether they are

free from legal error.” Id. (citation omitted).

4
  On November 10, 2015, this Court entered an Order directing Wittels to
produce copies of the letter he sent to Williams informing him of his right to
retain counsel or proceed pro se in this appeal. Wittels complied.



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      Any PCRA petition “shall be filed within one year of the date the

judgment [of sentence] becomes final.” 42 Pa.C.S.A. § 9545(b)(1).             A

judgment of sentence becomes final “at the conclusion of direct review,

including discretionary review in the Supreme Court of Pennsylvania, or at

the expiration time for seeking the review.”         Id. § 9545(b)(3).      The

timeliness of a PCRA petition is a “jurisdictional requisite” because

“jurisdictional time limits go to a court’s right or competency to adjudicate a

controversy.” Commonwealth v. Robinson, 12 A.3d 477, 479 (Pa. Super.

2011).

      As Williams declined to file a petition for allowance of appeal with our

Supreme Court, Williams’s judgment of sentence became final on March 22,

1990, after the time to seek review with our Supreme Court expired. See

Pa.R.A.P. 1113. Therefore, a timely PCRA petition had to be filed by March

22, 1991. Williams’s Petition, filed on June 1, 2012, is thus facially untimely.

      However, Pennsylvania courts may consider an untimely PCRA Petition

if the appellant can explicitly plead and prove one of three exceptions set

forth at Section 9545(b)(1)(i)-(iii). See Commonwealth v. Beasley, 741

A.2d 1258, 1261 (Pa. 1999).      Any petition invoking one of the exceptions

“shall be filed within 60 days of the date the claim could have been

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

      Williams invokes the      new   constitutional right exception.      See

Turner/Finley Brief at 16-19. In support of his claim, Williams cites Miller,



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supra, which bans mandatory life sentences without the possibility of parole

for defendants under 18 years old at the time of commission of the crime.

Miller, 132 S. Ct. at 2460.5 Here, Miller is not applicable, as Williams was

20 years old when the shooting occurred. See id. (stating that “mandatory

life without parole for those under the age of 18 at the time of their crimes

violates     the   Eighth   Amendment’s    prohibition    on   ‘cruel   and    unusual

punishments.’”) (emphasis added).

      Williams also invokes the newly discovered fact exception.                   See

Turner/Finley Brief at 20-23.         Williams offers an Affidavit by Gregory

Brown (“Brown”), dated May 4, 2012, alleging that Adrian “Ace” Miles

(“Miles”), rather than Williams, shot Derrick Whitmore. Id. at 21.

      The newly discovered fact exception requires petitioners to allege and

prove that “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”     before   the   timeliness   deadline      expired.       42    Pa.C.S.A.

§ 9545(b)(1)(ii).       The emphasis of the exception Williams invoked is “on

[the] newly discovered facts, not on a newly discovered or newly willing

source for previously known facts.” Commonwealth v. Marshall, 947 A.2d

714, 720 (Pa. 2008) (emphasis in original).           “The production of evidence

which contains information previously known to a petitioner ‘cannot

5
  In 2016 the Supreme Court of the United States announced that Miller
applies retroactively. Montgomery v. Louisiana, 136 S. Ct. 718, 732
(2016).



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resurrect an untimely PCRA claim as such a result would clearly run contrary

to the plain language of the exception.’” Commonwealth v. Johnson, 863

A.2d 423, 427 (Pa. 2004) (citation omitted).

      Here, Williams is attempting to assert a claim he has known for over

20 years. Indeed, in his first PCRA Petition, Williams alleged that multiple

witnesses were willing to testify that Miles was the shooter, not Williams.

See Amended PCRA Petition, 7/7/93, at 1-2; see also PCRA Court Opinion,

6/2/15, at 5. Moreover, the fact that Williams discovered a new witness to

re-litigate his previous claim does not “transform his latest source into

evidence      falling   within   the    ambit   of   [Section]   9545(b)(1)(ii).”

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1269 (Pa. 2008); see also

PCRA Court Opinion, 6/2/15, at 5 (stating that “Brown’s Affidavit proposing

an alternative perpetrator did not bring [Williams’s] claim within the scope of

exception (b)(1)(ii) because the only new aspect of the claim was the

witness.”).     Further, while Williams filed his Petition within 60 days of

Brown’s Affidavit, Williams does not explain why the Affidavit could not have

been presented sooner through Williams’s “due diligence.” See 42 Pa.C.S.A.

§ 9545(b)(2); see also Commonwealth v. Edmiston, 65 A.3d 339, 349

(Pa. 2013) (stating that “[w]e cannot say that a petitioner who is aware of

the factual basis of his claim but who raises the claim over 15 years later

complied with the jurisdictional, statutory requirement to file his claim within

60 days of the date the claim could have been presented”).



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      In his pro se brief, Williams contends that the PCRA court erred in

dismissing the PCRA Petition without first holding an evidentiary hearing

regarding Brown’s Affidavit.   Pro se Brief for Appellant at 11-15.    “[I]t is

well-settled that the right to an evidentiary hearing on a PCRA petition is not

absolute, and the PCRA court may decline to hold a hearing if the petitioner’s

claims are patently frivolous with no support in either the record or other

evidence.” Commonwealth v. Garcia, 23 A.3d 1059, 1066 n.9 (Pa. Super.

2011).

      In this case, where Williams filed an untimely PCRA Petition and did

not properly plead and prove an exception to the timeliness requirement, we

conclude that the PCRA court did not abuse its discretion in declining to hold

an evidentiary hearing. See id.6

      Upon our independent review of the record, we conclude that the PCRA

Petition is without merit, and that Wittles is entitled to withdraw under the

precepts of Turner/Finley.

      Order affirmed. Petition to Withdraw as Counsel granted.




6
  While Williams takes issue with Wittels’s Turner/Finley no-merit letter in
the Statement of Questions, Williams failed to raise an argument regarding
this issue in his brief. Thus, the claim is waived. Nevertheless, even if the
claim was not waived, as noted above, Wittels fulfilled the Turner/Finley
requirements.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/8/2016




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