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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
STEVEN CRAIG MORRISON, : No. 1597 MDA 2019
:
Appellant :
Appeal from the PCRA Order Entered July 9, 2019,
in the Court of Common Pleas of Lancaster County
Criminal Division at No. CP-36-CR-0003060-1992
BEFORE: PANELLA, P.J., STABILE, J. AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED: APRIL 27, 2020
Steven Craig Morrison appeals from the July 9, 2019 order dismissing
his serial petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546, as untimely. Contemporaneously with this
appeal, Edwin G. Pfursich, Esq. (“PCRA counsel”), has requested leave to
withdraw in accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988)
(en banc). After careful review, we grant PCRA counsel leave to withdraw
and affirm the order of the PCRA court.1
The relevant facts and procedural history of this case, as gleaned from
the certified record, are as follows: On July 13, 1993, appellant pled guilty to
1 The Commonwealth has elected not to file a brief in this matter.
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statutory sexual assault, aggravated indecent assault, indecent assault, and
corruption of minors2 in connection with his repeated sexual assault of a minor
female victim over a two-year period. The victim was between five and
six years old at the time these assaults occurred. On August 27, 1993, the
trial court sentenced appellant to 9½ to 30 years’ imprisonment. On
March 29, 1994, a panel of this court affirmed appellant’s judgment of
sentence, and appellant did not seek allowance of appeal with our supreme
court. See Commonwealth v. Morrison, 644 A.2d 807 (Pa.Super. 1994).
On July 7, 1994, appellant filed his first pro se PCRA petition. Counsel
was subsequently appointed and filed an amended petition on appellant’s
behalf. Following an evidentiary hearing, the PCRA court denied appellant’s
petition on February 13, 1995. Appellant did not file a direct appeal. As best
we can discern from the docket, appellant filed no less than ten unsuccessful
PCRA petitions from 1995 to 2016. On June 24, 2019, appellant filed the
instant pro se PCRA petition. On July 1, 2019, the PCRA court provided
appellant with notice of its intention to dismiss his petition without a hearing,
pursuant to Pa.R.Crim.P. 907(1). Appellant filed a pro se response to the
PCRA court’s Rule 907 notice on July 8, 2019. Thereafter, on July 9, 2019,
the PCRA court dismissed appellant’s petition as untimely.
Appellant filed a timely pro se notice of appeal on July 18, 2019. On
September 20, 2019, the PCRA court appointed PCRA counsel to represent
2 18 Pa.C.S.A. §§ 3122, 3125, 3126(a)(6), and 6301(a), respectively.
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appellant and directed him to file a concise statement of errors complained of
on appeal, in accordance with Pa.R.A.P. 1925(b). On October 15, 2019, PCRA
counsel filed a statement of intent to file an Anders/McClendon3 brief in lieu
of a concise statement, pursuant to Pa.R.A.P. 1925(c)(4). On October 24,
2019, the PCRA court filed a one-page Rule 1925(a) opinion indicating that it
was relying on the reasoning set forth in its July 1, 2019 opinion authored in
support of its Rule 907 notice. Thereafter, on February 10, 2020, PCRA
counsel filed a petition to withdraw, improperly couched as an
Anders/McClendon brief. Appellant did not file a pro se response to PCRA
counsel’s petition.
On February 12, 2020, this court entered a per curiam order striking
PCRA counsel’s Anders brief and denying his petition to withdraw, without
prejudice, on the grounds that it failed to satisfy the requirements set forth in
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). The order further
directed PCRA counsel “to refile with this Court a new application to withdraw
and accompanying no-merit letter that complies with all of the procedural and
substantive requirements of [Turner/Finley] or an advocate’s brief[.]”
(Per curiam order, 2/12/20.) On February 24, 2020, PCRA counsel filed
another petition and brief to withdraw, again styling it as an Anders brief.
3Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
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We begin by addressing PCRA counsel’s request to withdraw from
representation. In Commonwealth v. Muzzy, 141 A.3d 509 (Pa.Super.
2016), a panel of this court reiterated the procedure to be followed when PCRA
counsel seeks permission to withdraw from representation:
Counsel petitioning to withdraw from PCRA
representation must proceed ... under
[Turner/Finley] 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 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.
Muzzy, 141 A.3d at 510-511 (some bracketed internal citations amended;
case citations omitted).
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Herein, we find that PCRA counsel’s filing with this court, while couched
as an Anders brief, complied with the requirements of Turner/Finley. See
Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super. 2004)
(holding that although “[a] Turner/Finley no[-]merit letter is the appropriate
filing [in a PCRA proceeding,] . . . because an Anders brief provides greater
protection to the defendant, we may accept an Anders brief in lieu of a
Turner/Finley letter”), appeal denied, 882 A.2d 477 (Pa. 2005).
Specifically, PCRA counsel’s brief and petition to the court detailed the nature
and extent of his review. PCRA counsel first identified the pertinent factual
and procedural history and examined the issues appellant raised in both his
PCRA petition and plethora of pro se filings with the PCRA court.
(Turner/Finley letter4 at 5, 8-9.) Thereafter, PCRA counsel explained the
reasons why appellant’s underlying PCRA petition is untimely and appellant’s
claim failed to satisfy an exception to the PCRA time-bar. (Id. at 8-9.) Lastly,
the record reflects that counsel served appellant with a copy of his petition to
withdraw and advised appellant of his right to proceed pro se or with the
assistance of privately retained counsel. (See “Application for Leave to
Withdraw as Counsel,” 2/24/20 at Exhibit A.) Appellant did not respond. We
find that counsel’s request for leave to withdraw from representation satisfies
the requirements of Turner/Finley. See Commonwealth v. Karanicolas,
4 Although improperly couched as an Anders brief, for the ease of our
discussion we refer to PCRA counsel’s brief as a “Turner/Finley” letter.
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836 A.2d 940, 947 (Pa.Super. 2003) (stating that substantial compliance with
requirements will satisfy the Turner/Finley criteria). Accordingly, we must
now conduct our own review of the record and render a decision as to whether
the appeal is without merit.
Prior to consideration of the merits of any claims PCRA counsel raises
on appellant’s behalf, we must consider the timeliness of appellant’s PCRA
petition because it implicates the jurisdiction of this court and the PCRA court.
Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014) (citation
omitted). All PCRA petitions, including second and subsequent petitions, must
be filed within one year of when a defendant’s judgment of sentence becomes
final. 42 Pa.C.S.A. § 9545(b)(1). “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
the time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). If a PCRA
petition is untimely, a court lacks jurisdiction over the petition.
Commonwealth v. Callahan, 101 A.3d 118, 120-121 (Pa.Super. 2014).
Here, appellant’s judgment of sentence became final on April 28, 1994,
30 days after a panel of this court affirmed his judgment of sentence and the
deadline for filing a petition for allowance of appeal with our supreme court
expired. See 42 Pa.C.S.A. § 9545(b)(3); see also Pa.R.A.P. 1113.
Accordingly, appellant had until April 28, 1995 to file a timely PCRA petition.
See 42 Pa.C.S.A. § 9545(b)(1). Appellant’s instant PCRA petition, filed over
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24 years past the deadline on June 24, 2019, is patently untimely. As a result,
the PCRA court lacked jurisdiction to review appellant’s petition, unless
appellant alleged and proved one of the statutory exceptions to the time-bar,
as set forth in Section 9545(b)(1).
The three statutory exceptions to the PCRA time-bar are as follows:
(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.A. § 9545(b)(1)(i-iii).
Here, the crux of appellant’s argument is that the PCRA court erred in
denying his petition as untimely because “he was denied a copy of his
pre-sentence report prior to his sentencing hearing and that this report may
contain evidence of due process violations.” (Turner/Finley letter at 8-9;
see also “Motion for Re-Argument,” 7/18/19 at ¶ 1.) Appellant contends this
satisfies the newly discovered fact exception to the PCRA time-bar set forth in
Section 9545(b)(1)(ii).
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Our supreme court has long recognized that the newly discovered fact
exception “has two components, which must be alleged and proved. Namely,
the petitioner must establish that: (1) the facts upon which the claim was
predicated were unknown; and (2) [those facts] could not have been
ascertained by the exercise of due diligence.” Commonwealth v. Bennett,
930 A.2d 1264, 1272 (Pa. 2007). Due diligence requires a petitioner to take
reasonable efforts to uncover facts that may support a claim for collateral
relief. Commonwealth v. Burton, 121 A.3d 1063, 1071 (Pa.Super. 2015)
(en banc), affirmed, 158 A.3d 618 (Pa. 2017). A petitioner must explain
why he could not have learned the new facts earlier by exercising due
diligence. Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001).
Contrary to appellant’s contention, the fact that the pre-sentence report
“may contain evidence of due process violations” does not constitute a newly
discovered fact that would invoke the protections afforded by
Section 9545(b)(1)(ii). Appellant has failed to present a scintilla of verifiable
evidence to support his contention that he was denied a copy of his
pre-sentence report prior to his sentencing hearing; nor has appellant alleged
what specific due process violations occurred in this case. Additionally, even
if appellant’s claim met the underlying requirements of Section 9545(b)(1),
he still would not be entitled to any relief. Appellant has failed to demonstrate
that he exercised due diligence in raising this exception to the PCRA time-bar
within one year of the date it could have been presented, as required by
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Section 9545(b)(2). Here, appellant’s sentencing hearing was conducted on
August 23, 1993, and appellant did not file the instant pro se PCRA petition
raising said claim until June 24, 2019, nearly 26 years later.
Based on the foregoing, we discern no error on the part of the PCRA
court in dismissing appellant’s PCRA petition as untimely and grant PCRA
counsel’s petition for leave to withdraw.
Order affirmed. Petition for leave to withdraw as counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/27/2020
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