J-S90020-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MUSAYYEB HUNT

Appellant No. 2760 EDA 2015

Appeal from the PCRA Order Dated August 12, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): MC-51-CR-0028529-2012

 MC-51-CR-0028530-2012

BEFORE: OTT, J., SOLANO, J., and JENKINS, J. 

MEMORANDUM BY SOLANO, J.: FILED DECEMBER 30, 2016

Appellant, Musayyeb Hunt, appeals from the order denying his petition 

filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. 

Counsel also filed a petition to withdraw pursuant to Turner/Finley.

1

 We 

affirm and grant counsel’s petition to withdraw.

On February 8, 2013, Appellant pleaded guilty to two counts of theft 

by unlawful taking2and was sentenced to an aggregate sentence of three 

years’ probation. On August 22, 2013, Appellant filed a pro se PCRA 

petition, which he amended pro se on March 21, 2014.

____________________________________________

1 Commonwealth v. [Geary] Turner, 544 A.2d 927 (Pa. 1988); 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

2 18 Pa.C.S. § 3921(a).
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On April 9, 2014, Attorney Tingle entered his appearance for 

Appellant, and on July 28, 2014, Attorney Tingle filed a petition to withdraw 

pursuant to Turner/Finley. On December 18, 2014, after providing notice 

pursuant to Pa.R.Crim.P. 907, the PCRA court granted Attorney Tingle’s 

petition to withdraw and appointed Attorney Mosser to represent Appellant.

On January 14, 2015, Appellant filed a “Motion for Waiver of Counsel,” 

requesting that he be permitted to proceed pro se for his PCRA petition; no 

action was taken on this motion. On March 17, 2015, Attorney Mosser filed 

an amended PCRA petition. On July 16, 2015, he filed a corrected amended 

PCRA petition, alleging that Appellant timely requested trial counsel to file a 

direct appeal but counsel failed to do so. The petition thus asked the PCRA 

court to reinstate Appellant’s direct appeal rights nunc pro tunc. The PCRA 

court denied Appellant’s PCRA petition on August 12, 2015. Appellant timely 

appealed on September 11, 2015, and complied with Pa.R.A.P. 1925(b).

Appellant’s sentence ended on February 8, 2016.3 The PCRA court’s 

Rule 1925(a) decision reasoned that Appellant was not entitled to relief 

because Appellant was no longer serving his sentence of probation. PCRA 

Ct. Op., 5/20/16, at 2. On May 24, 2016, Appellant’s certified record was 

transmitted to this Court. On September 15, 2016, Attorney Mosser also 

____________________________________________

3 This date is three years after February 8, 2013, with no applicable credit 

for time served; Appellant is therefore not “currently serving a sentence.” 

See 42 Pa.C.S. § 9543(a)(1)(i).
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filed a Turner/Finley letter and brief with this Court, along with a motion to 

withdraw as counsel. He averred that Appellant’s appeal is moot because 

his sentence expired. Appellant did not file a pro se or counseled response 

to the Turner/Finley letter.

The Turner/Finley brief did not include a statement of questions 

involved on appeal. See Pa.R.A.P. 2116(a) (requiring brief to “state 

concisely the issues to be resolved” and adding, “No question will be 

considered unless it is stated in the statement of questions involved or is 

fairly suggested thereby”). Nevertheless, we discern Appellant is asserting 

that the PCRA court erred by refusing to reinstate his direct appeal rights 

nunc pro tunc, because, allegedly, he repeatedly and timely requested that 

his trial counsel file a direct appeal. See Appellant’s Rule 1925 Statement of 

Matters Complained of on Appeal; Finley Letter, 9/15/16, at 1-3. Counsel, 

however, explains that this issue lacks merit because Appellant’s sentence 

has expired, rendering this appeal moot. Finley Letter, 9/15/16, at 8-9. 

Additionally, Attorney Mosser asserts that there are no other issues of 

arguable merit. Id.

Our standard of review of a PCRA court’s denial of a PCRA petition is 

limited to examining whether the PCRA court’s determination is supported by 

the record evidence and free of legal error. Commonwealth v. Wilson,

824 A.2d 331, 333 (Pa. Super. 2003) (en banc). Before we review 

Appellant’s claim, however, we must ascertain whether counsel satisfied the 
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requirements to withdraw. Commonwealth v. Freeland, 106 A.3d 768, 

774-75 (Pa. Super. 2014). The Court in Freeland explained:

The Turner/Finley decisions provide the manner for postconviction counsel to withdraw from representation. The 

holdings of those cases mandate an independent review of the 

record by competent counsel before a PCRA court or appellate 

court can authorize an attorney’s withdrawal. The necessary 

independent review requires counsel to file a “no-merit” letter 

detailing the nature and extent of his review and list each issue 

the petitioner wishes to have examined, explaining why those 

issues are meritless. The PCRA court, or an appellate court if the 

no-merit letter is filed before it, see Turner, supra, then must 

conduct its own independent evaluation of the record and agree 

with counsel that the petition is without merit. 

See [Commonwealth v.] Pitts[, 603 Pa. 1, 3 n.1, 981 A.2d 

875, 876 n.1 (2009)].

In Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 

2006) abrogated in part by Pitts, supra, this Court imposed 

additional requirements on counsel that closely track the 

procedure for withdrawing on direct appeal. Pursuant 

to Friend, counsel is required to contemporaneously serve upon 

his client his no-merit letter and application to withdraw along 

with a statement that if the court granted counsel’s withdrawal 

request, the client may proceed pro se or with a privately 

retained attorney. Though Chief Justice Castille noted 

in Pitts that this Court is not authorized to craft procedural 

rules, the Court did not overturn this aspect of Friend as those 

prerequisites did not apply to the petitioner in Pitts. See Pitts,

supra at 881 (Castille, C.J., concurring).

After the decision in Pitts, this Court held in Commonwealth v. 

Widgins, 29 A.3d 816 (Pa. Super. 2011), that the additional 

procedural requirements of Friend were still applicable during 

collateral review.

Id.

Here, we conclude that counsel’s Turner/Finley no-merit letter 

complies with all of these requirements. See Freeland, 106 A.3d at 774-

75. Accordingly, we conduct our own independent evaluation of the record 
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to ascertain whether we agree with counsel that Appellant is not entitled to 

relief. See id.

Eligibility for relief under the PCRA is governed by 42 Pa.C.S. § 9543, 

which provides in pertinent part:

(a) General rule.—To be eligible for relief under this 

subchapter, the petitioner must plead and prove by a 

preponderance of the evidence all of the following:

(1) That the petitioner has been convicted of a crime 

under the laws of this Commonwealth and is at the 

time relief is granted:

 (i) currently serving a sentence of 

imprisonment, probation or parole for the crime 

. . . .

42 Pa.C.S. § 9543(a) (emphasis added).

In our recent opinion, Commonwealth v. Plunkett, ___ A.3d ___, 

2016 WL 7030486 (Pa. Super., Dec. 2, 2016), we noted the following:

The general proposition that a petitioner must be currently 

serving the sentence for the crime has been applied in numerous 

PCRA cases. See Commonwealth v. [Emma] Turner, 80 A.3d 

754 (Pa. 2013); Commonwealth v. Stultz, 114 A.3d 865 (Pa. 

Super. 2015); Commonwealth v. Williams, 977 A.2d 1174 

(Pa. Super. 2009); Commonwealth v. Pagan, 864 A.2d 1231 

(Pa. Super. 2004); and Commonwealth v. Hayes, 596 A.2d 

195 (Pa. Super. 1991) (en banc). All of these cases differ from 

the instant case in that . . . the petitioner had served the 

sentence prior to any PCRA hearing or order disposing of the 

PCRA petition. Here, Plunkett completed his sentence after the 

PCRA hearing and order denying him relief, as well as after filing 

his notice of appeal, but prior to the transmittal of the certified 

record to this Court. Our review of case law leads us to conclude 

this difference does not negate the applicability of the statutory 

language of Section 9543(a)(1)(i) to this case. . . . Because 

Plunkett’s sentence has expired, he is no longer entitled to PCRA 

relief. Accordingly, we affirm the PCRA court’s order.
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Id. at *2 (affirming denial of PCRA relief because the defendant completed 

his sentence during the pendency of his appeal from the order denying his 

PCRA petition).

Similar to the defendant in Plunkett, Appellant completed his 

sentence after the PCRA hearing and order denying him relief, as well as 

after filing his notice of appeal, but prior to the transmittal of the certified 

record to this Court. The statutory language of Section 9543(a)(1)(i) thus 

applies to this case. See Plunkett, 2016 WL 7030486, at *2. Because 

Appellant’s sentence expired during the pendency of his appeal, he is not 

entitled to relief pursuant to the PCRA. 42 Pa.C.S. § 9543(a)(1)(i); 

Plunkett, 2016 WL 7030486, at *2. Hence, we affirm the PCRA court’s 

order and grant counsel’s petition to withdraw.

Petition to withdraw granted. Order affirmed.

Judge Ott joins the memorandum. 

Judge Jenkins concurs in the result. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/30/2016
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