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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v. MASTAFA MCCLOUD Appellant No. 1849 EDA 2015

Appeal from the PCRA Order January 23 , 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP
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- CR
- 0203311
- 2005; CP
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- CR
- 0203851
- 2005; CP
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- CR
- 0204541
- 2005
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J. MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 13 , 2016 Appellant, Mastafa McCloud, appeals nunc pro tunc from the order denying as untimely his second petition filed pursuant to the Post Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A. §§ 9541
- 9546. 1 We affirm. The relevant facts and procedural history of this case are aptly stated in the PCRA court’s opin ion. Therefore, we will only briefly summarize them here. Appellant was one of several men who engaged in a shooting rampage on the streets of Philadelphia on the evening of October 14, 2004. Following a bench trial, Appellant was convicted on November 18, 2005, of numerous counts of aggravated assault, and one count each of attempted

____________________________________________ 1 Appellant purports to appeal from the judgment of sentence imposed on May 16, 2006. As we will discuss, that assertion is incorrect.J - S30012
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murder, carrying a firearm without a license, and criminal conspiracy. On May 16, 2006, the court imposed an aggregate sentence of thirteen and one half (131⁄2) to twenty
- se ven (27) years’ incarceration. The court denied Appellant’s timely post
- sentence motions. This Court affirmed the judgment of sentence on November 14, 2008. See Commonwealth v. McCloud , 964 A.2d 945 (Pa.Super. 2008) (addressing sufficiency of evidence i ssue and waiving discretionary aspects of sentencing issue). Appellant did not seek further review at that time. Thus, for purposes of the PCRA, Appellant’s judgment of sentence became final on December 14, 2008, upon expiration of the 30
- day time period to petition for allowance of appeal with our Supreme Court. See Pa.R.A.P. 1113 (stating: “Except as otherwise prescribed by this rule, a petition for allowance of appeal shall be filed with the Prothonotary of the Supreme Court within 30 days after the e ntry of the order of the Superior Court or the Commonwealth Court sought to be reviewed”). On October 5, 2009, Appellant filed a pro se , untimely petition with our Supreme Court for leave to file a petition for allowance of appeal nunc pro tunc , which the Court denied on December 30, 2009. Appellant filed his first PCRA petition pro se on April 23, 2010, alleging numerous claims of ineffective assistance of counsel. Appellant also asserted his petition was timely, although he erroneously measured the o ne year statutory time limit from December 30, 2009, the date our Supreme Court denied his untimely petition for allowance of appeal nunc pro tunc .J - S30012
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See Commonwealth v. Hutchins , 760 A.2d 50 (Pa.Super. 2000) (holding untimely petition for allowance of appe al filed with Pennsylvania Supreme Court, which later denied petition, does not operate to circumvent time restrictions of PCRA by altering date on which petitioner’s sentence became final). The court appointed counsel who filed a motion to withdraw and a “no
- merit” letter pursuant to Commonwealth v. Turner , 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley , 550 A.2d 213 (Pa.Super. 1988) ( en banc ), noting the PCRA petition was untimely and no statutory exception applied. Following notice per Pa.R.Crim.P. 907 on June 23, 2011, the court dismissed the petition without a hearing on July 22, 2011. Appellant filed his second PCRA petition soon afte r, on August 8, 2011, and an amended petition on December 5, 2011. The court issued Rule 907 notice on October 4, 2012, but later granted Appellant’s request for appointment of counsel on January 17, 2013. Counsel filed a Turner/Finley no - merit letter an d petition to withdraw on August 1, 2013. On December 12, 2013, the court issued Rule 907 notice, to which Appellant responded on December 27, 2013, raising additional claims including one claim of after
- discovered facts in the form of a newspaper article from November 8, 2013, involving an investigation of one particular police officer. On January 23, 2014, the court dismissed the petition without a hearing and permitted counsel to withdraw. On May 27, 2014, Appellant filed a third PCRA petition, reque stingJ - S30012
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reinstatement of his appellate rights nunc pro tunc from the dismissal of his second PCRA petition, because he did not receive notice of the court’s dismissal of the second PCRA petition. By order docketed on June 1, 2015, the court appointed counse l, at Appellant’s request, and with the Commonwealth’s agreement, the court reinstated Appellant’s right to file an appeal from the order dismissing his second PCRA petition. Appellant filed a notice of appeal on June 19, 2015. 2 The court ordered Appella nt on June 24, 2015, to file a concise statement of errors complained of on appeal. Appellant complied on July 1, 2015. As a preliminary matter, we must determine whether Appellant timely filed his current PCRA petition. Commonwealth v. Harris , 972 A. 2d 1196

____________________________________________ 2 Appellant purports to appeal from the judgment of sentence imposed on May 16, 2006. That assertion is plainly incorr ect. Nevertheless, the certified record does contain some misleading documents. For example, in the record there is an order dated June 18, 2015, that says it is reinstating Appellant’s right to file a direct appeal from his judgment of sentence. This o rder does not appear as a certified docket entry, although counsel included the order along with the court’s June 1, 2015 order, when counsel filed the notice of appeal. The June 18, 2015 order, however, cannot be correct, where the PCRA court lacked juri sdiction to grant that kind of relief because Appellant already had the benefit of a direct appeal from the judgment of sentence. See Commonwealth v. Grosella , 902 A.2d 1290, 1293
- 94 (Pa.Super. 2006) (stating, “the reinstatement of direct appeal rights is not the proper remedy when appellate counsel perfected a direct appeal but simply failed to raise certain claims”; “In such circumstances, the [petitioner] must proceed under the auspices of the PCRA, and the PCRA court should apply the traditional three
- prong test for determining whether appellate counsel was ineffective”). Counsel also labeled Appellant’s brief as if the appeal is from the judgment of sentence imposed on May 16, 2006. Notwithstanding these errors, the PCRA court properly treated the ap peal presently before us as an appeal from the order dismissing Appellant’s second PCRA petition.J - S30012
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(Pa.Super. 2009), appeal denied , 603 Pa. 684, 982 A.2d 1227 (2009). Pennsylvania law makes clear no court has jurisdiction to hear an untimely PCRA petition. Commonwealth v. Robinson , 575 Pa. 500, 837 A.2d 1157 (2003). The most recent amendments to the PCRA, effective January 16, 1996, provide that a PCRA petition, including a second or subsequent petition, shall be filed within one year of the date the underlying judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Bretz , 830 A.2d 1273 (Pa.Super. 2003). A judgment is deemed 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.” 42 Pa.C.S.A. § 9545(b)(3). The three statutory exceptions to the timeliness provisions in the PCRA allow for very limited circumstances under which the late filing of a petition will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a pet ition must allege and the petitioner must prove:

(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 Co nstitution 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 toJ - S30012
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- apply retroactively. 42 Pa. C.S.A. § 9545(b)(1)(i)
- (iii). Additionally, a petitioner asserting a timeliness exception must file a petition within sixty (60) days of the date the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2). “As such, when a PCRA petition is not filed within one year of the expiration of direct review, or not eligible for one of the three limited exceptions, or entitled to one of the exceptions, but not filed within 60 days of the date that the claim could have been first brought, the trial court has n o power to address the substantive merits of a petitioner’s PCRA claims.” Commonwealth v. Gamboa - Taylor , 562 Pa. 70, 77, 753 A.2d 780, 783 (2000). Instantly, Appellant’s judgment of sentence became final on December 14, 2008, upon expiration of the 30
- day time period to petition our Supreme Court for allowance of appeal. This date was confirmed when the Supreme Court denied Appellant’s petition for allowance of appeal nunc pro tunc . Appellant filed the current petition on August 8, 2011, almost three years after his judgment of sentence became final. Therefore, Appellant’s PCRA petition was patently untimely. With respect to Appellant’s attempt to invoke the after
- discovered facts exception, the PCRA court rejected Appellant’s reliance on news media reports of allegations of unrelated police misconduct, citing Commonwealth v. Castro , 625 Pa. 582, 596
- 99, 93 A.3d 818, 826
- 28 (2014) (holding newspaper article containing allegations of police misconduct alone is notJ - S30012
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“evidence” for purposes of deciding w hether new trial is warranted; motion for hearing for new trial must describe what will be presented at hearing; hearing cannot be used as means to secure investigation; “Simply relying on conclusory accusations made by another, without more, is insufficie nt to warrant a hearing”). The PCRA court said:

[Petitioner] made no attempt to demonstrate that there was even a trace of evidence of any misconduct on the part of Officer Dove or any of the other police officers involved in his arrest and conviction, ev en going so far as to having acknowledged himself that he was unaware of any. From the discussions of the proven facts by this [c]ourt and [petitioner’s] appellate and two previous PCRA attorneys, it does not appear that officer Dove even had any involvem ent in his arrest or conviction. [Appellant’s] is just one more of many attempts by convicted felons to belatedly challenge the weight and sufficiency of the evidence that convicted them by disparaging all of the conduct of all police officers involved ba sed solely upon the fact that one of them may have been involved in later and totally unrelated questionable conduct. ...[A]ny information contained in news media reports which [a petitioner] does not corroborate with actual evidence or purported witness te stimony proving the allegations in them is simply hearsay upon hearsay and does not, and never did, provide any basis for relief whatsoever, nor for obtaining discovery and being given a hearing in connection therewith, even if the news sources were identi fied and documented. The law has also long been clear, ..., that a PCRA petitioner cannot be allowed to go on a fishing expedition into police files simply because one of the officers involved in his case may have committed improprieties in unrelated matter s, without meeting the PCRA requirements in demonstrating that there is a strong possibility that any improprieties were actually committed in [petitioner’s] case. He cannot simply rely on innuendo. (PCRA Court Opinion, filed July 21, 2015, at 12
- 13). We agree with the court. Because Appellant failed to plead and prove any cognizable exceptionJ - S30012
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to the PCRA timeliness requirements, his second petition remained time
barred. See 42 Pa.C.S.A. § 9545(b)(1). Accordingly, the PCRA court properly dismissed t he petition as untimely. 3 Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/13/2016

____________________________________________ 3 Due to our disposition, we deny Appellant’s open motion for remand and his open motion to strike the Commonwealth’s brief.1 1 Ky l e Little: C P

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- 0203 3 13 & 0204543

- 2 0 05; Ler oy F air : C P -5 l- C R-0 30 5881- 2 005; E dmund J ac k s on : C P5 1 -CR

- 060 344 1 & 0 3 0588 2

- 200 5; Ro n al d Alston: CP -5 l -CR

- 0 2 03312 , 0 2 0 4 5 42 & 0 204551

- 2 005

. In th e l ower c ourt docket and in th i s Court ' s dockets i n both hi s d ire ct and presen t appe al the d efe nd an t' s nam e is s p e ll e d Mas t afa

. In the Jackson appeal di s cu s sed i nfra i t ' s s pe ll e d Mufus t a and h e and hi s co u ns e l s p ell i t Mu s t afa

. 2 18 Pa
. C. S. §§ 2702(a) , 2 502 , 9 0J (a) , 610 6 & 9 03

. . . . O n the e vening of Octobe r 1 4, 2 004 , Detecti v e Rona l d D o v e , D e t e cti ve James Waring, Offi c er T h omas Hood , an d Offi c er Edwar d A lle n w ere in ves ti gatin g a shooti ng incide nt th at occurre d e arli e r in the day in the ne i g hb orh oo d o f 33 rd and appeal

. The factual h i s tory w as general l y s et fo rth in o n e o f th e m . codefen d ants w ere conv i cted o f s i mil ar c h arges and all of the judgments we re affirmed o n petition i t 's necessary t o reco unt th e fac tual and pr ocedur al his t ori es in s om e detail. T h e Li c e nse an d C ri min al Cons pir ac y .' I n or d er to exp l ain th e c o urt' s rea so n s for d ismi s si n g th e Agg r av ated Assau lt an d o n e c o un t eac h o f Atte mpted Murder , Carryi ng a F irearm Without a conso lid ate d n o n

jury tri al on N o vembe r 18 , 200 5 , he was found guilty of eight coun t s o f i ndi viduals, i nclud i ng four po li ceme n , were caug h t i n the li ne o f fire. At th e co n c lu s ion of a aris i n g fro m a mass armed assau lt upo n an i nte n d e d v i c tim on a c i ty street in w hich s e v en o the r h ereinafte r the PCRA
. H e and fo ur oth e r i n d iv idual s ' were charged with n u mero u s off enses second pe ti tion fo r re l ie f un der th e P os t Co nv ic tio n R e li e f Ac t , 42 Pa .C S. § 954 1 e t s eq., T hi s i s a nunc pro tu ne app eal by p ermi ssi o n fr om th e di s mis s al o f th e defendant's I . INTROD

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### JULY MAZZOLA, WILLIAM, J. . CP-5 1 - CR-0204541-2005 C P-51- CR-0203311 - 2 0 05 C P-51 - CR-0203851-2005 v s . COM MON W EAL TH OF P

E NNS Y L V ANIA IN THE COURT OF CO M MO N PL EAS F IRST JU DICIAL DI

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MINA L SEC T IO N Circulated 08/24/2016 09:55 AM2 3 Only the opinion in Jackson's appeal w as published. This defendant's was at 2464, and the others ' at 659 (Little), 1570 (Fair) , 2758 (Jackson) & 2877 (Alston) EDA 2006. The defendant was represented by the same attorney at trial and on appeal.

The Anders brief next addresses sentencing. The trial court's sentence is well within the statutory limit, and Appellant did not comply with the procedural The Anders brief first addresses the sufficiency of the evidence in support of Appellant's conviction. The record reflects that an eyewitness, Sharee Norton, saw appellant firing a gun. Norton, her boyfriend Charles Wesley, and her children were in the line of fire. Several officers, who were on the scene when the shooting started, apprehended Appellant a short distance from the site. A shell casing matching one of the guns used in the shooting fell from Appellant ' s body when the officers apprehended him. The trial judge, as fact finder, chose to credit the Commonwealth's evidence. We agree with counsel that a challenge to the sufficiency of the evidence would be frivolous. Commonwealth v. Millisock; 2005 PA Super 147, 873 A.2d 748 (2005), the Court ruled: first noting that appellate counsel's Anders brief met the requirements of filing one as set forth in involvement were summarized in this Court's memorandum opinion in his direct appeal. After Commonwealth v. Jackson, 2008 PA Super 192, 955 A.2d 441 , 442-43 (2008), appeal denied, 600 Pa. 760, 967 A.2d 958 (2009). 3 Some additional facts proven at trial as to this defendant's

A group of men, which included Appellant, Kyle Little, Mufusta McCioud, Ronald Alston, and Leroy Fair was walking toward them. The men were armed. As they neared Wesley, they started shooting

. The officers exited their vehicle. Officer Allen pushed Palmer to the ground. Officer Hood radioed for assistance from other officers in the area. Detective Waring, Norton, and her children took cover. Detective Dove saw that the gunmen were firing in his direction, and took particular note of Appellant, who was in a white T-shirt. Detective Dove crouched to the ground. In total, between 50 and 80 shots were fired by the gunmen. Detective Dove fired four shots toward the gunmen. No one was injured. Wesley ran north on 33rd Street. The gunmen ran west on Cumberland toward 34th Street. The detectives and the officers pursued the gunmen. When Detective Dove rounded the corner of 33rd and Cumberland, he saw Appellant. Appellant turned, looked over his right shoulder at Detective Dove, and raised his gun toward the detective. In response, Detective Dove fired one shot at Appellant. Ultimately, Appellant and the other gunmen were apprehended. Cumberland Streets in Philadelphia. Charles Wesley was the target of that shooting. Detectives Dove and Waring were standing on 33rd Street, speaking to Gene Palmer about the incident." Officers Hood and Allen were sitting in a Ford Taurus parked nearby on the street. Wesley was walking south on 33rd Street, with Sharee Norton and her two children, Sharron Norton and Shanya Wesley.3

h av in g care full y re v iew ed th e record it revealed th at there w ere n o i ss ue s of pl au s ibl e m eri t an d w ai ve d fo r h av i ng fail e d t o c o mpl y w ith th e c o urt' s order to fil e aR
. J 92 5(b) Sta te m e nt , and that co urt n oted th at an y i ss u e s th at th e d e fe nd an t wi sh e d to r aise o n app eal s h o uld h ave bee n deeme d h is di rect app e al w as fil e d on the 30 t h. In i t s Pa . R .A .P
. 1 92 5 (a) o pini o n of Ap ril 4, 2007, th e trial On May 1 6, 2 0 06 , th e d efend an t wa s sen te nc e d to term s of in carcer ati o n a ggregati ng to 13'12 t o 2 7 years. He fil e d a p os t sen te nce m otion on M ay 18 th , i t was deni e d on A u g u s t 18 th, an d II

. 

### PROCEDURAL HISTORY L e tte r of P ete r A
. Levin , Esq
. , 

### M

a y 16 , 2 011 , pp. 1- 2 (c i t atio n s t o N o tes o f Testi m ony o mitted )

. [ Rit a W es l ey testified that] e ight or nin e bl ac k m e n c am e w alkin g d own th e stre et. She had b ee n s itting on the steps outside her ho u se, . . . h eard s h ots,
.. . ran in her hou se ... and shu t th e d oor . [She] re ali ze d h er tw en ty y ear o ld son, Ch arl es, wa s o ut on the s tre e t s o m ew here so s h e o p e ned her fr on t d oor and saw four bl ac k m al es runnin g up the s treet. Ms
. W e sley ran o u t and saw poli ce offi c ers c omi n g up the stre e t with the ir guns drawn

. She thre w up h er hands and told the of ficers th at th e m e n r an up th e stree t. Wh e n s he got t o th e top of 3 4 th Str e e t she saw the o ffi c ers h ad four m e n on th e g round

. On e of the m en w a s Mustafa Mc C loud

. [Officer Ho o d testified that he and another officer w e re in the poli ce vehicl e ] parked on the ea s t sid e of 33rd Street , n e ar th e 2500 bl oc k , .. . w hen th ey saw a man , ( later kn o wn to b e Charles W es l ey), walking s outh o n 33rd St. A fe w seco n ds later they heard gun s hots

. He saw gunshots coming from 33 rd and Cumberland. Offi c er D ov e , w ho w as one o f the four officer s from the v ehi cl e re turn e d fire an d ran wes t on Cumberland

. Officer Hood ran wes t o n Cumberland and as h e turned th e c o m er at 34th Street he encounte red Rita Wesley who s houted , " The y sh o t my b ab y and th ey are runn i ng th at way ... _£,,] He saw a group of males runnin g n o rth o n 3 4th Street

. When the y hit the comer they saw marked vehicles and m a de a u-turn t o run s o uth o n 34th Street.

. . . three of the males s at down on the s tep s of h o u s es [ an d] M u s t afa M c Cl o ud w as o n e of [them and he] was arre s te d

. h i s app o inted counsel p o inted out add itional e v idence a s to his i n v olvem e nt. 24 64 E D A 2006 , p p. 3-4

. In a Finley letter bri e f fi led i n the d e f e ndant ' s fir s t P C

RA pr o ce e din g, Final l y , our i ndependent re v iew of the reco rd doe s not re v e al the e xi s tenc e of any potentially meritori o us i s su e. In light of the fore go in g , we will g r ant couns e l 's p e titi o n to withdraw and affirm appellant ' s jud gm ent of sente n ce . requirements for preserving a challeng e to the discre tio nary a s p e c ts of the se n tence. We agree with counsel that any challenge to the senten c e would hav e been fri vo lou s .4 4 148 EM 2009. The defendant did not seek certiorari. 5 With regard to the second issue, he attached a statement by the witness claiming that at around 7:30 pm on the day of the incident she met the defendant in the 2600 block of 34th Street, spoke with him for several minutes, heard gunshots and they started running toward her house but she told the defendant that she had left her keys in her car and he went back to get them; when he didn't return in five minutes, she went back to find him being arrested. counsel also noted that the petition was not timely filed and the defendant failed to allege any late allocator petition. Counsel was appointed and filed the Finley letter cited above in which timely because he filed it within one year of the Supreme Court's denial of his request to file a of counsel in failing to raise a claim of insufficient evidence. He claimed that the petition was Commonwealth's witness Sharee Norton was telling the truth." and (6) "layered ineffectiveness" misconduct on the part of the prosecutor in closing argument in stating "that she vouches that the for those claims in an accompanying memorandum in which he added two additional claims: (5) on what he characterized as questionable Commonwealth evidence. 5 He elaborated on the bases call an alibi witness, and (3) file the 1925(b) Statement, and (4) court error in finding him guilty the Commonwealth's witnesses' identification of him as one of the shooters, (2) interview and of trial counsel in failing to (1) address a Kloiber issue in closing argument with regard to two of He filed his first PCRA petition prose on April 23, 2010, alleging ineffective assistance Petition for Leave to File a Petition for Allowance of Appeal Nunc Pro Tune with our Supreme Court" which denied it on December 

## so". judgment of sentence on November 14, 2008. On October 5 , 2009, the defendant filed a prose Statement and remanded the case for counsel to file and serve the brief. The Court affirmed the an Anders brief which, under the subsequently amended rule, would serve as a substitute for the note that appellate counsel had also filed a petition to withdraw and a notice of intention to file had been timely filed and did not indicate why the trial judge did not receive it. It went on to Court issued a memorandum decision and order noting that the record indicated that a Statement that the evidence to support the convictions was overwhelming. However, on June 12, 2008, this5

excepti ons to the PCRA timely filing requirements

. The court filed and s e rv ed a Noti ce o flnte nt
to Di s mi s s for lack of merit pursuant to Pa
. R. Crim
. P. 90 7 on June 23 , 2011 , dismis s ed i t w ithou t a hearing on July 

## zz= ; and the defendant did not file an appeal. He filed the second PCRA p e titi on pro s e on August 8 th in which his o nl y claim w a s

c oun se l ineffe c tiv ene ss i n failing to fil e the 1925(b) St ate m e n t, and an am ended petiti o n o n December 5th in w hich he merely elab o rated on that s ame issue. The onl y support he pro v ided in both peti tion s was the trial court's 19 2 5 ( a ) opinion described ab ove . The c o urt filed and se rved

a R. 90 7 Notice oflntent to Dismiss for lack of timeliness on O c tober 4 , 201 2 , b ut o n January 17, 2 013 , g r anted the defendant ' s motion to appoint counsel. Ne w coun se l wa s appointe d and filed a Fi nl ey lette r and an Application to Withdraw a s Counsel on August 10 , 201 3, notin g that u p on a thorou g h revie w of the record the issue raised was without merit , the record did n o t indicate th at there were an y o th e r issu e s of arguable merit, and that the petition w a s not timel y fil e d and the d e f e nd an t a g ain fail e d to all ege and the record f ail e d t o re ve al that an y of th e exce pti o n s t o th e timel y filing requirement s applied

. On D e c e mber 12th th e c ourt fil e d and s erve d a R
. 90 7 No ti c e

o f Intent to Di s mis s advisin g the de fe ndant o f th e Fi n l ey lette r , his couns e l 's wi thdrawal , an d o f his ri g ht to p r oceed p ro s e or re tain private c o unsel. O n the 2ih , in r e sp o n se to th e notice of i nte nt to dismi ss , th e de fe ndant fil e d pr o s e a

" Sub sequ e nt P e tition fo r Po s t C on v i c tion C ollateral Reli e f ' , a " M oti on for N e w Trial B ase d Upon After Di s co v e red Evid e n c e ; Alternati v el y , for P o s t Con v i c ti o n C ollate ral R e li e f ; or Altern ati ve l y, for a Writ of Habe as C o rpus" , and " Objecti ons t o No ti c e ofln te nt to D i s mis s Pursu ant to [R. 9 0 7]". In th e firs t , he claimed that hi s trial/ appell ate c o un s el ab an d o n e d hi m b y failin g t o ad v ise him th at h e c o uld, and the ti m e re strictions within w hi c h t o, fi le an alloca tu r pe tition after hi s jud g m e nt w as affirmed on dire ct appeal , that he s h o ul d b e app o in te d n ew PCRA

coun se l in vi ew o f the fact that his th e n couns e l rendered ine ffe cti ve as sistan ce in prese nti n g " his6 6 With regard to the latter , he stated: "While there has not been any Brady evidence forthcoming , nor Brady material presented to petitioner thus far, it is not clear that there is any additional after-discovered evidence within the meaning ofPCRA [42 Pa.C.S.A. §9545(b)(l)(ii)] or Rule 720, petitioner is filing this instant motion in an abundance of caution within sixty (60) days of the first disclosure of Detective Dove ' s apparent misconduct." 7 He claimed to have submitted an affidavit from this other witness, whom he named but did not otherwise identify, with his second petition but there is none in the record and there was no mention of that witness in the petition. He did not describe exactly to what facts thi

_ s witness would have testified other than the alleged corroboration. of his right to appeal and requested that the right be reinstated. On February 12, 2015, he filed a served with notice that his previous petition had been formally dismissed and was thus deprived On May 27, 2014, he filed a third PCRA petition in which he claimed that he was not hearing on January 23, 2014, and no appeal was filed. raised in both his second and his first PCRA petitions. The court dismissed the petition without a Finley letter instead in which counsel failed to properly address and evaluate all of the claims he corroborated his previously identified alibi witness's statement 7 and improperly submitting the there was another witness who had come forward who could have exonerated him and claimed that his PCRA counsel was also derelict in not bringing up those issues and the fact that other "Brady material" in the possession of the District Attorney's Office. 6 In the third he guilt and demanded to be provided with all material concerning those investigations and any evidence would corroborate his previous claims with regard to the questionable evidence of his a November 8, 2013, philly.com web site news article to that effect; he claimed that this new other slayings and the disappearance of another man, which he supported by attaching a copy of involvement in the stabbing death of a man with whom she lived, and possibly covering up two became under investigation for having allegedly assisted his girl friend in covering up her have presented "manipulated" facts because one of them, Officer Dove, in September of 2013, exculpatory evidence that the police officers who participated in his arrest and conviction must order to establish the merits of all those claims. In the second he claimed after discovered subsequent submissions in the Finley letter, and that he should be given an evidentiary hearing in wholly erroneous and perfunctory assessment" of the claims presented in his pro se petition and7 8 Counsel included two additional paragraphs asserting a right to "modify, amend, and/or supplement this statement" pending receipt of copies o f the notes of testimony but for the reasons set forth below the c ourt sees no reason to consider allowing him to do so. second PCRA petition, and completely disregarded the only issue that was raised. stating the issues, counsel completely ignored the fact that none of them were raised in the the three cases for one trial [and] 4

.... in denying the post sentence motions

.... ". 8 In so failed] to establish [his] mens rea for this offense [and] 3. The trial court erred [in] consolidating to identify [him] as the perpetrator [and] to find [him] guilty of attempted murder because [it The evidence was insufficient to convict the defendant [of all of the charges] because [it failed] of on Appeal Pursuant to Pa. R.A. P. 19 2 5 (b), present counsel states the i ssues as follows: "1. In compliance with the court's order to file a Concise Statement of Matters Complained was appointed and this appeal was filed on the 19th. with the agreement of the Commonwealth, the court reinstated his appeal right. New counsel record the court did not see any indication that he was so notified and at a hearing on June 1 5 \ agreeing to having the court reinstate his right to appeal nunc pro tune. Having reviewed the appeal must be filed" pursuant to R. 907 and that, if he was not , the prosecution would consider appeal from the final order disposing of the petition and of the time limits within which the receipt requested, that his previous petition had been formally dismissed and of his "right to an y indication it may have had, that the court had advised the defendant by certified mail , return petition wrote to the PCRA court noting that the record did not indicate, and asking it to supply he was discharged from the police force for failing to cooperate with the detectives conducting those investigations. On March 18th, the assistant district attorney assigned to respond to the continuing investigations into Officer Dove's alleged misconduct in which it was also noted that misconduct and submitting in support a Philadelphia Daily News newspaper article detailing the "Supplement to Motion for New Trial/PCRA Petition" reiterating his previous claim of police8 On appeal from the denial of PCRA relief, our standard of review calls for us to determine whether the ruling of the PCRA court is supported by the record and free oflegal en-or. Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, have raised in his direct appeal or first PCRA petition. completely unsupported, or attempts to relitigate issues that he raised or was legally required to interject into that second PCRA proceeding issues that were either waived, patently frivolous, dismiss the second petition, which he treated as being parts of that petition, were also attempts to that the defendant raised in all of his submissions in response to the court's notice of intent to evidence issue by presenting new theories of relief. It must also be noted that all of the issues addition, the first two issues in the Statement are attempts to relitigate the sufficiency of the direct appeal or in a timely PCRA petition as claims of ineffective assistance of counsel. In was or should have been fully aware of all of those potential issues and have raised them in the present counsel have made any attempt to dispel the unavoidable conclusion that the defendant rendered futile because his first PCRA petition was not filed timely and neither defendant nor his assistance of trial/appellate counsel. Any attempt to have done so would, of course, have been actual direct appeal, or could have been raised in his first PCRA petition as claims of ineffective issues that either have been previously raised and rejected, or should have been raised in his raise issues as if this were a timely direct appeal from a judgment of sentence and to litigate evidence was sufficient for all of his convictions. The present Statement is simply an attempt to brief which this Court accepted as a substitute for a Statement and ruled on the merits that the not appeal, but also because his counsel did file a 1925(b) Statement , but also filed an Anders included it in his first PCRA petition, which was dismissed as untimely and from which he did the defendant did raise in the second PCRA petition was rendered moot not only because he From the above discussion of the history of the case, it is obvious that the one claim that 

### III. DISCUSSION9

93 5, 939 n. 2 ( 2001 ) (appellant cannot obtain post con v iction re v i e w o f claim s pre v i o usl y 135 

### S. Ct . 7 0 7, 1 9 0 L. Ed 2 d 4 39 ( 2 014 )
. "See Comm o nw e a l t h v . B rac e

y, 5 68 Pa . 2 6

4, 7 95 A .2 d Co mm o nw ea lt

h v. Al i, 62 4 Pa
. 309, 86 A
. 3d 1 7 3, 1 7 6

- 77 (2 0 14 ) , ce rt

. d e n'd , Ali v. P e nns

y lva ni a, A s e cond or subsequent petition for post-conviction relie f will n o t b e entertained unless a stro ng prima fa ci e s howing is o ff ered t o demon s trate that a miscarri a ge of justice may hav e occurred

. Co mmon w e a lth v. A ll e n, 55 7 Pa . 1 35, 141 , 73 2 A.2d 5 82 , 586 (1999). Ap rim a faci e showing of entitlement to re li ef is mad e onl y b y d e mon s tratin g eith e r that the proc e edin gs w hich r e sulted in conviction were so unfair th at a miscarriag e ofjustice o c curred w hic h no c i v ili z ed s ociety could tolerate , or the defendant's innocenc e of the crimes for which he was charged. A ll e n , at 142 , 7 32 A. 2 d at 5 8 6

. Our s tand ar d ofre v iew for an order den y ing post-convi c tion relief is limited to w hether the trial court ' s determin ati on i s supporte d b y evidence of record and whe ther it is free of le g al err o r. Comm o n w e al t

h v . J e rm y n, 551 Pa. 96

, 7 09 A.2d 84 9, 856 ( 1 99 8)

. th at w a s re v ie w ed and rejected i n hi s direct appeal. o nl y a s un tim el y, but as an improp e r attempt t o reliti gate th e suf fic i e n c y o f the e vi d e n c e claim P C RA petiti o n as i n e ffe cti v e a ssis tance of co u n se l cl aims , th e y would h av e b e en con si dered , n ot raised all of the issues described in the present 1925(b) State m e nt in either hi s first or s ec o nd Comm o nwealth v . Ste e l e , 599 Pa
. 341 , 961 A.2d 786, 7 96 (2 0 0 8). Eve n if th e d efen dant h a d Further, Appellant must demonstrate that the issue s r aised in his PCRA p e tition have not been pre v iously liti g ated or w aived, and that " the failure to litigate the issue prior to or during trial or on direct ap pe al c o uld not have been the result of any rational s trategic or tactical decision b y co u nsel." Washing ton, 92 7 A
. 2 d at 593 (citing 42 Pa
. C.S. §§ 954 3(a )( 3 ) , (4))

. An i s sue h as been pre vio u s l y l i tigated if " the highest appellate court in which the p eti tion er w a s entitled t o re v iew as a matter of right has ruled on the merits of th e i s su e." Id ( c iting 42 Pa .C.S
. § 9544(a)( 2 ) ); Co mmonwealth v. Craw ley, 541 Pa . 40 8, 663 A
. 2d 6 7 6 , 6 7 8 (Pa. 1995)

. A PCRA claim is waived "if the petitioner could h av e r aised it but failed to do so before trial , at trial, during unitary re v ie w, o n app e al or in a prior s t ate post-conviction proceeding. " 4 2 Pa .C. S. § 9544 (b )
. Further , we no longer appl y the relax e d waiver doctrine in capital PCRA appeals. Comm on weal th v

. Albre cht, 554 Pa
. 31 , 72 0 A
. 2d 693 , 7 00 (Pa
. 19 9 8). 593-94 (Pa. 200 7); Commonwealth v . Brea kiron, 566 Pa
. 3 2 3, 7 8 1 A
. 2d 94 (Pa
. 2001) ; Commonwealth 

### v . Strong, 563 Pa. 455, 7 61 A.2d 116 7

, 11 7 0 

### n . 3 (Pa. 2000). In order to be eligib l e for PCRA re l i ef , Appellant must pro v e b y a p reponderance of the evidence that his c onviction or s e n tence re sulte d from o n e or m o re o f the enum e rated c i rcumstances found at 4 2 Pa. C. S. § 954 3 ( a)( 2)

.10

his petition should be deemed timely because he filed it within one year of the Supreme Court's the Finley letter submitted in the defendant's first PCRA proceeding, in addressing the claim that With regard to the alleged failure of appellate counsel to discuss allocatur proceedings, in they can be readily dismissed as frivolous. additional claims could be considered as properly raised claims of prior counsel ineffectiveness Commonwealth v. Hagood, 516 Pa. 340, 344-45, 532 A.2d 424, 425-26 (1987). Even if those

The stated purpose of the Act is to provide relief from convictions and sentences i mposed without due process of law, 42 Pa.C.S.A. § 9542, not review of prior post conviction proceedings. Thus, persons currently serving sentences in this Commonwealth may , consistent with the Act, file one and only one PCHA petition. Failure to raise all claims that might have been raised in the first PCHA petition constitutes a waiver which will only be avoided by "extraordinary circumstances," 42 Pa.C.S.A. § 9544(b). Extraordinary circumstances have been variously defined by members of this Court, see, e.g., this author's dissenting opin i on in Commonwealth v. Watlington, 491 Pa. 241, 246, 420 A.2d 431, 434 (1980); see also the opinion of 

### Mr. Justice Larsen in Commonwealth v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981). However, this case does not present any "extraordinary circumstances" sufficiently compelling to persuade us that the conduct of an evidentiary hearing on appellee's third PCHA petition is warranted. Any person desiring to obtain relief under this subchapter shall set forth in the petition all of his then available grounds for such relief for any particular sentence he is currently serving and he shall be entitled to only one petition for each crime. The failure to raise any issue in the petition shall be deemed a waiver of any right to future presentation of another petition containing grounds for relief that were available and could have been presented. The Post Conviction Hearing Act, 42 Pa.C.S.A. § 9541 et seq., expresses a clear preference that it be used as a vehicle to secure review of convictions only once. Specifically, § 9545(c) provides: intent to dismiss the present petition. additional, and relitigate previous, claims in his submissions in response to the court's notice of A. 2 d 226, 229 (2003). The same principle applies to the defendant's pros e attempt to interject relief to support previously litigated claims)." Commonwealth v. Stokes, 576 Pa. 299, 304, 839 litigated on app e al by alleging ineffectiveness o f prior counsel and presenting new theories of11 Rather," 'an independent review of the record by competent counsel.

... '" was all the petitioner was entitled to receive under state law, at least according to the Majority of the United States Supreme Court. See Turner, supra, 518 Pa. at----, 544 A.2d at 928, quoting Pennsylvania v. Finley, supra, 481 US. at----, 107 S.Ct. at 1995, 95 L.Ed2d at 548. This view has been adopted by our highest Court in its holding that the actions of counsel and the PCHA court in Commonwealth v. Finley, 330 Pa.Super. 313, 479 A.2d 568 (1984) (Rowley, J
. dissenting), rev'd sub nom Pennsylvania v. Finley, 481 US. 551 , 107 S.Ct. 1990, 95 L.Ed2d 539 (1987), in other words the case which is before us nowfor review, were proper in ensuring the petitioner's right to effective representation. More particularly, the "independent review" necessary to assure a withdrawal request by PCHA counsel discuss and argue all of his previous claims and those he raised in his latest submissions. letter is patently frivolous. His only basis for that claim is that his counsel did not thoroughly The defendant's claim that his counsel was derelict in submitting an "improper" Finley time that h i s judgment was affirmed, he had no obligation to assist him in that regard. procedure in doing so . His appellate counsel having been permitted to withdraw at the same time requirements within which to request permission to appeal but failed to follow the proper allocator petition out of time. Thus it is obvious that he was fully aware of his ability and the that letter the Court clerk advised him that his only recourse was to request permission to file an never submitted any evidence that the petition was, in fact, mailed to the Court. In response to deemed to have been filed since he proved it was timely served on the Commonwealth. He the Court advised him that it had no record of having received it. He argued that it should be which he noted that he had received a response to a previous inquiry about the petition in which received from the latter and a copy of a letter he wrote to the Court on September 9 , 2009, in certified mail on December 12, 2008. In support, he attached a copy of the return receipt he allocator petition by mailing it to the Court and a copy of it to the District Attorney's Office by petition, the defendant alleged that he should have been considered to have filed a timely and attached copies of that petition and other documents which showed the following

. In the denial of his petition for leave to file an allocator petition nunc pro tune, his counsel discussed12

being given a hearing in connection therewith, even if the news sources were identified and does not, and never did, provide any basis for relief whatsoever, nor for obtaining discovery and purported witness testimony proving the allegations in them is simply hearsay upon hearsay and contained in news media reports which a defendant does not corroborate with actual evidence or context of a claim of after-discovered evidence under 

### Pa.R. Crim.P. 720, that any information totally unrelated questionable conduct. Our Supreme Court has made absolutely clear, in the officers involved based solely upon the fact that one of them may have been involved in later and sufficiency of the evidence that convicted them by disparaging all of the conduct of all police just one more of many attempts by convicted felons to belatedly challenge the weight and does not appear that officer Dove even had any involvement in his arrest or conviction. His is proven facts by this Court and the defendant's appellate and two previous PCRA attorney ' s, it as to having acknowledged himself that he was unaware of any. From the discussions of the Dove or any of the othe r police officers involved in his arrest ~d conviction, even going so far demonstrate that there was even a trace of evidence of any misconduct on the part of Officer With regard to the claim of police misconduct, the defendant made no attempt to Commonwealth v. Finley, 379 Pa. Super. 390, 550 A.2d 213, 215 (1988), footnote omitted 5) The PCHA court agreeing with counsel that the petition was meritless. 4) The PCHA court conducting its own independent review of the record; and 3) The PCHA counsel's "explanation" , in the "no-merit" letter, of why the petitioner's issues were meritless; 2) The "no merit" letter by PCHA counsel listing each issue the petitioner wished to have reviewed; 1) A "no-merit" letter by PCHA counsel detailing the nature and extent of his review; required proof of:13 Appellant's discovery requests are nothing more than a fishing expedition for possible exculpatory evide n ce. He has not demonstrated that the ballistics results were erroneous, that Officer Keenan was disciplined for paying witnesses, or that the Commonwealth possessed the purported impeachment evidence on 

### Mr. Burton
.... Appellant has not demonstrated good cause to require granting his Commonwealth v. Dennis, 552 Pa. 331, 715 A.2d 404, 415 (1998).

Appellant argues that he is entitled to a remand for consideration of afterdiscovered evidence [pursuant to 42 Pa.CS.§ 9543(a)(2)(vi)]. To warrant relief, after-discovered ev i dence must meet a four-prong test: (1) the evidence could not have been obtained before the conclusion of the trial by reasonable diligence; (2) the evidence is not merely corroborative o r cumulative; (3) the evidence will not be used solely for purposes of impeachment; and ( 4) the evidence is of such a nature and character that a different outcome is likely. See, e.g., Commonwealth v. McCracken, 540 Pa. 541, 659 A.2d 541 (1995); Commonwealth v. Wilson, 538 Pa. 485, 649 A.2d 435 (1994). Here, neither of Appellant's two items of afterdiscovered evidence meet this test. Commonwealth v. Reid, 99 A.3d 470, 500 (Pa. 2014).

As discussed above, a showing of good cause requires more than just a generic demand for potentially exculpatory evidence that might be discovered if a defendant is permitted to review the requested materials. [ Commonwealth v.] Sattazahn, [597 Pa. 648, 952 A.2d 640] A.2d at 662. We agree with the PCRA court that Appellant ' s request for discovery of the police files, which primarily was based on speculation that potentially exculpatory evidence might exist because exculpatory evidence has been found in police files in other cases, was insufficient to satisfy the good cause requirement. See Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 135 (2012) (affirming the denial of collateral relief where the PCRA court rejected a Brady claim based on the factual finding that no undisclosed deal existed between the Commonwealth witness and the prosecutor, and such factual finding was supported by the record). Thus, the PCRA court did not abuse its discretion in deny i ng Appellant's request to review the police archive files based on Appellant's speculation that the files contained Brady material. actually committed in his case. He cannot simply rely on innuendo. PCRA requirements in demonstrating that there is a strong possibility that any improprieties were involved in his case may have committed improprieties in unrelated matters without meeting the allowed to go on a fishing expedition into police files simply because one of the officers clear, which the Court in Castro incidentally acknowledged, that a PCRA petitioner cannot be documented. Commonwealth v. Castro, 93 A.3d 818 (Pa. 2014). The law has also long been14 BY THE COURT:



# ~k~~J. speculative discovery request pursuant to Rule 902(£)(2). Commonwealth v. Carson, 590 Pa. 501, 913 A.2d 220, 261 (2006), rearg. denied Feb. 9, 2007 , cert. denied, Carson v. Pennsylvania, 552 US. 954, 128 S. Ct. 384, 169 

### L. Ed 2d 270 (2007). IV. CONCLUSION Thus, it is clear that the defendant has completely failed to demonstrate a right to relief under the PCRA. Even if his appellate counsel did fail to file a 1925(b) Statement, the issue was rendered moot since the Court nullified any adverse affect it may have otherwise had, and the defendant would have had no basis for relief even if his first petition had been timely filed. Neither he nor his present counsel made any effort to demonstrate why any of the issues they attempted to raise, with the exception of the alleged police misconduct, should not be considered
to hav e been previously litigated or waived, nor what affect those issues would have had on the sufficiency of the actual evidence by which he was convicted. The additional issues he raised in his responses to the di s missal notice were patently frivolous, the one concerning allocatur proceedings being particularly so. Wherefore, the court's determination that the defendant's claims had presented no genuine issues of material fact was fully supported by the record and its dismissal of the petition without a hearing should be affirmed.