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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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