J-S50031-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

BRYON GEORGE TURTON, 

 Appellant No. 313 WDA 2014 

Appeal from the PCRA Order entered January 27, 2014,

in the Court of Common Pleas of Allegheny County, 

Criminal Division, at No(s): CP-02-CR-0012460-1994. 

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and ALLEN, JJ. 

MEMORANDUM BY ALLEN, J.: FILED AUGUST 12, 2014 

Bryon George Turton (“Appellant”) appeals from the order denying his 

petition for post-conviction relief filed pursuant to the Post Conviction Relief 

Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. PCRA counsel has also filed a 

petition to withdraw. We affirm. 

 The pertinent facts and procedural history are as follows: On October 

5, 1994, police charged Appellant, then nineteen years old, with one count 

of criminal homicide involving the strangulation death of his girlfriend. On 

January 31, 1996, a jury convicted Appellant of first-degree murder. On 

March 28, 1996, the trial court sentenced him to life imprisonment without 

the possibility of parole. Appellant filed a timely appeal to this Court. In an 

unpublished memorandum filed on December 15, 1997, we affirmed 

Appellant’s judgment of sentence, but remanded for the appointment of new 
J-S50031-14

- 2 - 

counsel to address an ineffective assistance claim raised by Appellant in his 

appeal. Commonwealth v. Turton, ___ A.2d ___ (Pa. Super. 1997) 

(unpublished). 

 Upon remand, the trial court appointed new counsel, and the trial 

court held an evidentiary hearing on December 8, 1998. By order entered 

February 15, 2001, the trial court denied Appellant relief. Appellant once 

again filed a timely appeal to this Court. In an unpublished memorandum 

filed on April 27, 2004, we affirmed the trial court. Commonwealth v. 

Turton, 852 A.2d 1256 (Pa. Super. 2004). On October 20, 2004, our 

Supreme Court denied Appellant’s petition for allocatur. Commonwealth v. 

Turton, 862 A.2d 1255 (Pa. 2004). 

 On August 21, 2012, Appellant filed a pro se PCRA petition. The PCRA 

court appointed counsel, and on October 2, 2013, PCRA counsel filed an 

amended petition. The PCRA court issued Pa.R.Crim.P. 907 notice of intent 

to dismiss Appellant’s petition on November 8, 2013. Appellant did not file a 

response. By order entered January 27, 2014, the PCRA court dismissed 

Appellant’s petition because it was patently untimely, and because Appellant 

failed to establish the applicability of an exception to the time bar. This 

appeal followed. Both Appellant and the PCRA court have complied with 

Pa.R.A.P. 1925. 
J-S50031-14

- 3 - 

In lieu of an advocate’s brief, Appellant’s counsel has filed an Anders1

brief and a petition to withdraw. Compliance with Anders applies to counsel 

who seeks to withdraw from representation on direct appeal. Anders

imposes stricter requirements than those imposed when counsel seeks to 

withdraw during the post-conviction process pursuant to the dictates of 

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

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

See Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 

2004). Thus, we will assess counsel’s assertion that the issues Appellant 

wishes to raise have no merit under a Turner/Finley analysis. 

Our Supreme Court has summarized: 

 These cases establish the procedure for withdrawal of 

court-appointed counsel in collateral attacks on criminal 

convictions. Independent review of the record by 

competent counsel is required before withdrawal is 

permitted. Such independent review requires proof of: 

1) A “no-merit” letter by PCRA counsel detailing the 

nature and extent of his [or her] review; 

2) A “no-merit” letter by PCRA counsel listing each issue 

the petitioner wished to have reviewed; 

3) The PCRA counsel’s “explanation”, in the “no-merit” 

letter, of why the petitioner’s issues were meritless; 

4) The PCRA court conducting its own independent 

review of the record; and 

____________________________________________ 

1 Anders v. California, 386 U.S. 738 (1967). 
J-S50031-14

- 4 - 

5) The PCRA court agreeing with counsel that the 

petition was meritless. 

Commonwealth v. Pitts, 981 A.2d 875, 876 n.1, (Pa. 2009) (citations 

omitted). Here, Appellant’s counsel has complied with the mandates of 

Turner and Finley, as summarized in Pitts, supra. Thus, we must 

determine whether we agree with counsel’s assessment that Appellant’s 

PCRA petition was untimely filed, and Appellant cannot establish an 

exception to the PCRA’s time bar.

This Court’s standard of review regarding an order dismissing a 

petition under the PCRA is whether the determination of the PCRA court is 

supported by the evidence of record and is free of legal error. 

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA 

court’s findings will not be disturbed unless there is no support for the 

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 

1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a 

hearing on the petition if the PCRA court determines that the petitioner’s 

claim is patently frivolous and is without a trace of support in either the 

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011 

(Pa. Super. 2001). 

 The timeliness of a post-conviction petition is jurisdictional. 

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation 

omitted). Thus, if a PCRA petition is untimely, neither an appellate court nor 
J-S50031-14

- 5 - 

the PCRA court has jurisdiction over the petition. Id. “Without jurisdiction, 

we simply do not have the legal authority to address the substantive claims” 

raised in an untimely petition. Id.

 Generally, a petition for relief under the PCRA, including a second or 

subsequent petition, must be filed within one year of the date the judgment 

becomes final unless the petition alleges, and the petitioner proves, an 

exception to the time for filing the petition. Commonwealth v. GamboaTaylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under 

these exceptions, the petitioner must plead and prove that: “(1) there has 

been interference by government officials in the presentation of the claim; or 

(2) there exists after-discovered facts or evidence; or (3) a new 

constitutional right has been recognized.” Commonwealth v. Fowler, 930 

A.2d 586, 591 (Pa. Super. 2007) (citations omitted). A PCRA petition 

invoking one of these statutory exceptions must “be filed within sixty days of 

the date the claim first could have been presented.” Gamboa-Taylor, 753 

A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to

the time restrictions of the PCRA must be pled in the petition, and may not 

be raised for the first time on appeal. Commonwealth v. Burton, 936 

A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not 

raised before the lower court are waived and cannot be raised for the first 

time on appeal.”).
J-S50031-14

- 6 - 

Because Appellant did not file a petition for writ of certiorari with the 

United States Supreme Court following our Supreme Court’s denial of 

allocatur, for PCRA purposes, Appellant’s judgment of sentence became final 

ninety thereafter, on January 18, 2005. 42 Pa.C.S.A. § 9545(b)(3); 

U.S.Sup.Ct.R. 13. Appellant filed the instant PCRA petition over seven years 

later. As a result, his PCRA petition is patently untimely unless he has 

satisfied his burden of pleading and proving that one of the enumerated 

exceptions applies. See Commonwealth v. Beasley, 741 A.2d 1258, 1261 

(Pa. 1999). 

 Appellant has failed to prove the applicability of any of the exceptions 

to the PCRA’s time restrictions. Appellant first contends that his PCRA falls 

under the exception of subsection 9545(b)(1)(iii) because the United States 

Supreme Court recognized a new constitutional right in Miller v. Alabama, 

132 S.Ct. 2455 (2012). In Miller, the high court held that mandatory 

sentences of life without parole “for those under the age of 18 at the time of 

their crimes violates the Eighth Amendment’s prohibition against ‘cruel and 

unusual punishment.’” Miller, 132 S.Ct. at 2460. Appellant asserts that the 

Miller decision should be applied retroactively to his life sentence. 

 Initially, we note that the Miller holding is inapposite because 

Appellant was not a juvenile when he killed his girlfriend. Moreover, even 

had Appellant been a juvenile at the time, our Supreme Court has 

determined that the Miller decision should not be applied retroactively. See 
J-S50031-14

- 7 - 

generally, Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013). Thus, 

Appellant cannot avoid the PCRA’s time bar pursuant to Section 9545(b)(iii). 

 Alternatively, Appellant attempts to establish an exception to the 

PCRA’s time bar by characterizing the scientific evidence discussed in Miller 

as “newly discovered facts” pursuant to section 9545(b)(1)(ii). As noted by 

present counsel, however, this same evidence was referenced in the United 

States Supreme Court’s prior decisions of Roper v. Simmons, 543 U.S. 551 

(2005) and Graham v. Florida, 560 U.S. 48 (2010). At best, Appellant 

relies upon a “newly discovered . . . source of previously known facts.” 

Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008); see also 

Commonwealth v. Lark, 746 A.2d 585, 588 n.4 (explaining that matters of 

public record “cannot be said to have been ‘unknown’ to the PCRA 

petitioner”).

 In sum, Appellant’s PCRA petition is facially untimely, and he has failed 

to meet his burden of proof with regard to any exception to the timeliness 

requirements of the PCRA. We therefore affirm the PCRA court’s denial of 

Appellant’s petition for post-conviction relief, and grant counsel’s petition to 

withdraw. 

Petition to withdraw granted. Order affirmed. 
J-S50031-14

- 8 - 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/12/2014