J-S30012-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 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-51-CR-0203311-2005; 

CP-51-CR-0203851-2005; CP-51-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 opinion. 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. 
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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-seven (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 issue 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 entry 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 oneyear statutory time limit from December 30, 2009, the date our Supreme 

Court denied his untimely petition for allowance of appeal nunc pro tunc. 
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See Commonwealth v. Hutchins, 760 A.2d 50 (Pa.Super. 2000) (holding 

untimely petition for allowance of appeal 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 after, 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 and 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, requesting 
J-S30012-16

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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 counsel, 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 Appellant 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 incorrect. 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 order 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 jurisdiction 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 appeal presently before us as an 

appeal from the order dismissing Appellant’s second PCRA petition. 
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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 

petition 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 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 
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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 no 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 not 
J-S30012-16

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“evidence” for purposes of deciding whether 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 insufficient 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, even 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 involvement 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 based 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 testimony 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 

identified 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 matters, 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 exception 
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to the PCRA timeliness requirements, his second petition remained timebarred. See 42 Pa.C.S.A. § 9545(b)(1). Accordingly, the PCRA court 

properly dismissed the 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 Kyle Little: CP-51-CR-0203313 & 0204543-2005; Leroy Fair: CP-5 l-CR-0305881-2005; Edmund Jackson: CP51-CR-0603441 & 0305882-2005; Ronald Alston: CP-5 l-CR-0203312, 0204542 & 0204551-2005. In the lower 

court docket and in this Court's dockets in both his direct and present appeal the defendant's name is spelled 

Mastafa. In the Jackson appeal discussed infra it's spelled Mufusta and he and his counsel spell it Mustafa. 

2 18 Pa.C.S. §§ 2702(a), 2502, 90J(a), 6106 & 903. 

. . . On the evening of October 14, 2004, Detective Ronald Dove, Detective 

James Waring, Officer Thomas Hood, and Officer Edward Allen were investigating 

a shooting incident that occurred earlier in the day in the neighborhood of 33rd and 

appeal. The factual history was generally set forth in one of them . 

codefendants were convicted of similar charges and all of the judgments were affirmed on 

petition it's necessary to recount the factual and procedural histories in some detail. The 

License and Criminal Conspiracy.' In order to explain the court's reasons for dismissing the 

Aggravated Assault and one count each of Attempted Murder, Carrying a Firearm Without a 

consolidated nonjury trial on November 18, 2005, he was found guilty of eight counts of 

individuals, including four policemen, were caught in the line of fire. At the conclusion of a 

arising from a mass armed assault upon an intended victim on a city street in which seven other 

hereinafter the PCRA. He and four other individuals' were charged with numerous offenses 

second petition for relief under the Post Conviction Relief Act, 42 Pa.CS. § 9541 et seq., 

This is a nunc pro tune appeal by permission from the dismissal of the defendant's 

I. INTRODUCTION AND FACTUAL HISTORY 

OPINION 

SUPERIOR COURT 

NO. 1849 EDA 2015 

MASTAFAMcCLOUD 

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\ I rt MAZZOLA, WILLIAM, J. JULY ~ , 2015 

. CP-51-CR-0204541-2005 

CP-51-CR-0203311-2005 

vs. CP-51-CR-0203851-2005 

COMMONWEAL TH OF PENNSYLVANIA 

IN THE COURT OF COMMON PLEAS 

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA 

TRIAL DIVISION - CRIMINAL SECTION 

Circulated 08/24/2016 09:55 AM
2 

3 Only the opinion in Jackson's appeal was 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 

having carefully reviewed the record it revealed that there were no issues of plausible merit and 

waived for having failed to comply with the court's order to file aR. J 925(b) Statement, and that 

court noted that any issues that the defendant wished to raise on appeal should have been deemed 

his direct appeal was filed on the 30th. In its Pa.R.A.P. 1925(a) opinion of April 4, 2007, the trial 

On May 16, 2006, the defendant was sentenced to terms of incarceration aggregating to 

13'12 to 27 years. He filed a post sentence motion on May 18th, it was denied on August 18th, and 

II. PROCEDURAL HISTORY 

Letter of Peter A. Levin, Esq., May 16, 2011, pp. 1-2 (citations to Notes of Testimony omitted). 

[Rita Wesley testified that] eight or nine black men came walking down the 

street. She had been sitting on the steps outside her house, ... heard shots, ... ran in 

her house ... and shut the door. [She] realized her twenty year old son, Charles, was 

out on the street somewhere so she opened her front door and saw four black males 

running up the street. Ms. Wesley ran out and saw police officers coming up the 

street with their guns drawn. She threw up her hands and told the officers that the 

men ran up the street. When she got to the top of 34th Street she saw the officers had 

four men on the ground. One of the men was Mustafa McCloud. 

[Officer Hood testified that he and another officer were in the police vehicle] 

parked on the east side of 33rd Street, near the 2500 block, ... when they saw a man, 

(later known to be Charles Wesley), walking south on 33rd St. A few seconds later 

they heard gunshots. He saw gunshots coming from 33rd and Cumberland. Officer 

Dove, who was one of the four officers from the vehicle returned fire and ran west 

on Cumberland. Officer Hood ran west on Cumberland and as he turned the comer at 

34th Street he encountered Rita Wesley who shouted, "They shot my baby and they 

are running that way ... _£,,] He saw a group of males running north on 34th Street. 

When they hit the comer they saw marked vehicles and made a u-turn to run south 

on 34th Street. ... three of the males sat down on the steps of houses [and] Mustafa 

McCloud was one of [them and he] was arrested. 

his appointed counsel pointed out additional evidence as to his involvement. 

2464 EDA 2006, pp. 3-4. In a Finley letter brief filed in the defendant's first PCRA proceeding, 

Finally, our independent review of the record does not reveal the existence of 

any potentially meritorious issue. In light of the foregoing, we will grant counsel's 

petition to withdraw and affirm appellant's judgment of sentence. 

requirements for preserving a challenge to the discretionary aspects of the sentence. 

We agree with counsel that any challenge to the sentence would have been frivolous. 
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, this 
5 

exceptions to the PCRA timely filing requirements. The court filed and served a Notice oflntent 

to Dismiss for lack of merit pursuant to Pa.R.Crim.P. 907 on June 23, 2011, dismissed it without 

a hearing on July zz=; and the defendant did not file an appeal. 

He filed the second PCRA petition pro se on August 8th in which his only claim was 

counsel ineffectiveness in failing to file the 1925(b) Statement, and an amended petition on 

December 5th in which he merely elaborated on that same issue. The only support he provided in 

both petitions was the trial court's 19 2 5 ( a) opinion described above. The court filed and served 

a R. 907Notice oflntent to Dismiss for lack of timeliness on October 4, 2012, but on January 17, 

2013, granted the defendant's motion to appoint counsel. New counsel was appointed and filed a 

Finley letter and an Application to Withdraw as Counsel on August 10, 2013, noting that upon a 

thorough review of the record the issue raised was without merit, the record did not indicate that 

there were any other issues of arguable merit, and that the petition was not timely filed and the 

defendant again failed to allege and the record failed to reveal that any of the exceptions to the 

timely filing requirements applied. On December 12th the court filed and served a R. 907 Notice 

of Intent to Dismiss advising the defendant of the Finley letter, his counsel's withdrawal, and of 

his right to proceed prose or retain private counsel. 

On the 2ih, in response to the notice of intent to dismiss, the defendant filed pro se a 

"Subsequent Petition for Post Conviction Collateral Relief', a "Motion for New Trial Based 

Upon After Discovered Evidence; Alternatively, for Post Conviction Collateral Relief; or 

Alternatively, for a Writ of Habeas Corpus", and "Objections to Notice oflntent to Dismiss 

Pursuant to [R. 907]". In the first, he claimed that his trial/appellate counsel abandoned him by 

failing to advise him that he could, and the time restrictions within which to, file an allocatur 

petition after his judgment was affirmed on direct appeal, that he should be appointed new PCRA 

counsel in view of the fact that his then counsel rendered ineffective assistance in presenting "his 
6 

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 statement7 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 and 
7 

8 Counsel included two additional paragraphs asserting a right to "modify, amend, and/or supplement this statement" 

pending receipt of copies of the notes of testimony but for the reasons set forth below the court 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 issues 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 15\ 

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 

any 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 police 
8 

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. DISCUSSION 
9 

935, 939 n. 2 (2001) (appellant cannot obtain post conviction review of claims previously 

135 S. Ct. 707, 190 L. Ed 2d 439 (2014). "See Commonwealth v. Bracey, 568 Pa. 264, 795 A.2d 

Commonwealth v. Ali, 624 Pa. 309, 86 A.3d 173, 176-77 (2014), cert. den'd, Ali v. Pennsylvania, 

A second or subsequent petition for post-conviction relief will not be 

entertained unless a strong prima facie showing is offered to demonstrate that a 

miscarriage of justice may have occurred. Commonwealth v. Allen, 557 Pa. 135, 

141, 732 A.2d 582, 586 (1999). Aprimafacie showing of entitlement to relief is 

made only by demonstrating either that the proceedings which resulted in 

conviction were so unfair that a miscarriage of justice occurred which no civilized 

society could tolerate, or the defendant's innocence of the crimes for which he 

was charged. Allen, at 142, 732 A.2d at 586. Our standard ofreview for an order 

denying post-conviction relief is limited to whether the trial court's determination 

is supported by evidence of record and whether it is free of legal error. 

Commonwealth v. Jermyn, 551 Pa. 96, 709 A.2d 849, 856 (1998). 

that was reviewed and rejected in his direct appeal. 

only as untimely, but as an improper attempt to relitigate the sufficiency of the evidence claim 

PCRA petition as ineffective assistance of counsel claims, they would have been considered, not 

raised all of the issues described in the present 1925(b) Statement in either his first or second 

Commonwealth v. Steele, 599 Pa. 341, 961 A.2d 786, 796 (2008). Even if the defendant had 

Further, Appellant must demonstrate that the issues raised in his PCRA 

petition have not been previously litigated or waived, and that "the failure to 

litigate the issue prior to or during trial or on direct appeal could not have been the 

result of any rational strategic or tactical decision by counsel." Washington, 927 

A.2d at 593 (citing 42 Pa.C.S. §§ 9543(a)(3), (4)). An issue has been previously 

litigated if "the highest appellate court in which the petitioner was entitled to 

review as a matter of right has ruled on the merits of the issue." Id (citing 42 

Pa.C.S. § 9544(a)(2)); Commonwealth v. Crawley, 541 Pa. 408, 663 A.2d 676, 

678 (Pa. 1995). A PCRA claim is waived "if the petitioner could have raised it 

but failed to do so before trial, at trial, during unitary review, on appeal or in a 

prior state post-conviction proceeding." 42 Pa.C.S. § 9544(b). Further, we no 

longer apply the relaxed waiver doctrine in capital PCRA appeals. 

Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 700 (Pa. 1998). 

593-94 (Pa. 2007); Commonwealth v. Breakiron, 566 Pa. 323, 781 A.2d 94 (Pa. 

2001); Commonwealth v. Strong, 563 Pa. 455, 761 A.2d 1167, 1170 n. 3 (Pa. 

2000). In order to be eligible for PCRA relief, Appellant must prove by a 

preponderance of the evidence that his conviction or sentence resulted from one 

or more of the enumerated circumstances found at 42 Pa.C.S. § 9543(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 imposed 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 

opinion 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.2d 226, 229 (2003). The same principle applies to the defendant's prose attempt to interject 

relief to support previously litigated claims)." Commonwealth v. Stokes, 576 Pa. 299, 304, 839 

litigated on appeal by alleging ineffectiveness of prior counsel and presenting new theories of 
11 

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 now for 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 his 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 discussed 
12 

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 other 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 evidence. 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 evidence 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 or 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 denying 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 been 
14 

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 have 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 dismissal 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.