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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TYRONE HOPPER
Appellant No. 461 EDA 2016
Appeal from the PCRA Order February 2, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1302284-2006
BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 14, 2016
This is an appeal from the order of the Court of Common Pleas of
Philadelphia County dismissing Appellant Tyrone Hopper’s petition pursuant
to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, as
untimely filed. PCRA appellate counsel filed a petition to withdraw, claiming
there are no non-frivolous issues to raise on appeal. After careful review,
we grant counsel permission to withdraw and affirm the PCRA court’s order.
On January 17, 2008, Appellant pled guilty to possession of a
controlled substance with intent to deliver (PWID) and criminal conspiracy.1
On the same day, the trial court sentenced Appellant to time served to
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*
Former Justice specially assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30), 18 Pa.C.S. § 903(a).
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twenty-three months’ imprisonment to be followed by three years’
probation. Appellant was granted immediate parole.
On November 4, 2008, Appellant pled guilty to charges related to the
illegal possession of a firearm. As a result, on January 9, 2009, following a
violation hearing, the trial court revoked Appellant’s probation in this case
and imposed a sentence of eleven and one-half to twenty three months
imprisonment. Appellant did not appeal.
On September 29, 2014, Appellant filed a counseled PCRA petition,
claiming that Appellant was entitled to a new trial based on after-discovered
evidence that several officers involved in Appellant’s May 2005 arrest were
allegedly “indicted by the federal government on July 20, 2014 and charged
with robbery, falsification of records, RICO, and related crimes.” PCRA
petition, 9/29/14, at 2. On November 20, 2015, the PCRA court notified
Appellant of its intent to dismiss the petition without a hearing pursuant to
Pa.R.Crim.P. 907. In the notice, the PCRA court asserted that Appellant’s
petition was facially untimely, did not properly invoke an exception to the
PCRA time limitations, and warranted no relief due to the allegedly corrupt
officer’s minor level of involvement in the prosecution of Appellant’s case.
On February 2, 2016, the PCRA court denied Appellant’s petition.
On February 10, 2016, Appellant filed this appeal. As Appellant filed a
motion for the appointment of new counsel, the PCRA court appointed
Jennifer Ann Santiago, Esq. to represent Appellant. On April 7, 2016, the
PCRA court directed Appellant to file a concise statement of errors
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complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant’s counsel
was granted an extension of time to file the concise statement, which was
timely filed on May 10, 2016. In the concise statement, counsel indicated
that she could find no non-frivolous claims to raise in this case and indicated
that she would file a brief pursuant to Anders v. California, 386 U.S. 738
(1967).
When reviewing the denial of a PCRA petition, we are guided by the
following standard:
The standard of review for an order denying post-conviction
relief is limited to whether the record supports the PCRA court's
determination, and whether that decision is free of legal error.
The PCRA court's findings will not be disturbed unless there is no
support for the findings in the certified record.
Commonwealth v. Allen, 48 A.3d 1283, 1285 (Pa.Super. 2012) (citations
omitted).
Before we proceed to review the merits of Appellant’s PCRA petition,
we must evaluate counsel’s petition to withdraw her representation:
Counsel petitioning to withdraw from PCRA representation must
proceed ... under [Commonwealth v. Turner, 518 Pa. 491,
544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d
213 (Pa.Super. 1988)] 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.
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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.
Commonwealth v. Doty, 48 A.3d 451, 454 (Pa.Super. 2012) (quoting
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007)).
We note that Appellant’s appointed counsel filed her petition to
withdraw on the basis of frivolity pursuant to Anders and Commonwealth
v. Santiago, 978 A.2d 349 (Pa. 2009). Although Anders briefs are filed by
counsel who wish to withdraw on direct review, we will accept counsel’s
Anders brief in lieu of a Turner-Finley letter, as an Anders brief provides
greater protection to criminal defendants. See Commonwealth v.
Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super. 2004).
After reviewing the record and counsel’s petition to withdraw, we find
that PCRA appellate counsel has complied with the technical requirements of
Turner and Finley, supra. In her appellate brief, PCRA appellate counsel
detailed the nature and extent of her review, listed the issue which Appellant
raised in his petition, and explained why she believed Appellant’s petition
was frivolous. Counsel indicated that after her own independent review of
the record, she could not identify any meritorious issues that she could raise
on Appellant’s behalf. Moreover, counsel attached her letter to Appellant
specifically indicating that she believed that the appeal was wholly frivolous
for the reasons set forth in her brief and notifying him of his right to raise
additional points for consideration by proceeding pro se or with the
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assistance of privately retained counsel. See Commonwealth v. Muzzy,
141 A.3d 509, 511 (Pa.Super. 2016) (citing Commonwealth v. Friend, 896
A.2d 607 (Pa.Super. 2006)). As counsel complied with the Turner-Finley
requirements to withdraw her representation, we must now determine
whether the PCRA court correctly dismissed Appellant’s PCRA petition as
untimely filed.
It is well-established that “the PCRA's timeliness requirements are
jurisdictional in nature and must be strictly construed; courts may not
address the merits of the issues raised in a petition if it is not timely filed.”
Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa.Super. 2011)
(citations omitted). Generally, a PCRA petition must be filed within one year
of the date the judgment of sentence becomes final unless the petitioner
meets his burden to plead and prove one of the exceptions enumerated in
42 Pa.C.S. § 9545(b)(1)(i)-(iii), which include: (1) the petitioner’s inability
to raise a claim as a result of governmental interference; (2) the discovery
of previously unknown facts or evidence that would have supported a claim;
or (3) a newly-recognized constitutional right. 42 Pa.C.S. § 9545(b)(1)(i)-
(iii). However, the PCRA limits the reach of the exceptions by providing that
a petition invoking any of the exceptions must be filed within 60 days of the
date the claim first could have been presented. Leggett, 16 A.3d at 1146
(citing 42 Pa.C.S. § 9545(b)(2)).
In this case, the trial court sentenced Appellant on January 17, 2008.
As Appellant did not file post-sentence motions or a direct appeal, his
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sentence became final on February 16, 2008. See 42 Pa.C.S. § 9545(b)(3)
(stating that “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”). Thus, he had one year to file a timely PCRA petition by
February 16, 2009. As Appellant filed this PCRA petition on September 29,
2014, over five years after his sentence became final, his petition is facially
untimely.
In her appellate brief, counsel did not discuss the applicability of any
of the timeliness exceptions, and Appellant did not do so in his original
petition. We emphasize that “[t]he PCRA squarely places upon the petitioner
the burden of proving an untimely petition fits within one of the three
exceptions.” Commonwealth v. Jones, 617 Pa. 587, 591, 54 A.3d 14, 17
(2012). Instead of addressing the timeliness of the petition, counsel
addressed Appellant’s claim that he was entitled to a new trial based on
after-discovered evidence. Although the PCRA eligibility requirements
encompass claims of newly available exculpatory evidence, the petitioner is
first required to plead and prove the time-bar exception for the discovery of
previously unknown facts under 42 Pa.C.S. § 9545(b)(1)(ii). See
Commonwealth v. Bennett, 593 Pa. 382, 393-94, 930 A.2d 1264, 1270-
72 (2007) (distinguishing the time-bar exception in Section 9545(b)(1)(ii)
from the PCRA eligibility requirements listed in Section 9543(a)(2)(vi)).
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Appellant’s failure to plead and prove one of the timeliness exceptions would
be sufficient grounds for the dismissal of his PCRA petition.
Even assuming Appellant pled and proved that a timeliness exception
applies, the after-discovered evidence claim in his original petition is not
sufficiently developed. While Appellant offers several names of officers he
alleges were indicted on federal charges, he makes no attempt in his original
petition to explain how these officers were involved in either of his two
arrests and does not provide any more detail on the alleged indictments. As
noted in Jones, supra, it is Appellant’s burden to develop his claim with
appropriate specificity. Therefore, even if Appellant met the newly-
discovered fact timeliness exception, thus giving this Court jurisdiction, we
find Appellant has waived his issue by neglecting to develop his petition with
detailed facts, appropriate argument, and relevant authority.2
Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa.Super. 2012).
Accordingly, we conclude that the PCRA court correctly dismissed
Appellant’s PCRA petition as untimely filed.
Petition to withdraw granted. Order affirmed.
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2
Moreover, our review of the record shows that confirms the shared
assertion of the PCRA court, the Commonwealth, and defense counsel, that
one of the allegedly corrupt officers, Brian Reynolds, only had a minor level
of involvement in Appellant’s case when he arrested Appellant’s co-
defendant. See N.T. Preliminary Hr’g, 11/16/06, at 28-34.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2016
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