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

v.

SAHEED O. SAUNDERS

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 404 EDA 2022 Appeal from the PCRA Order Entered March 28, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0009795

- 2008

BEFORE: LAZARUS, J., NICHOLS, J., and McCAFFERY , J. MEMORANDUM BY LAZARUS, J.: FILED APRIL 18, 2023 Saheed O. Saunders appeals from the order, entered in the Court of Common Pleas of Philadelphia County, dismissing his first petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541

- 9546. After review , we dismiss the appeal

. On January 1 8 , 20 08, at approximately 8:00 p.m., Saunder s and two other men were standing together on Huntingdon Street in Philadelphia. The victim owed one of the three men $400.00 . The group rob bed the victim , emptying the victim’s pockets, where they found, inter alia , $700.00 in cash

. They then drove in the victim’s car to an ATM machine and attempted to withdraw cash using the victim’s bank card. Next, they drove to Chalmers Recreation Center , where they a sked the victim to call his wife to determine if there was cash in their home , to which she responded in the negative. Thereafter, Saunders pistol

- whipped the victim and the other two individualsJ

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search ed the victim’s car for valuables , at which point the y found half an ounce of cocaine

. The three men decided to leave, and the victim began to yell threats at the three men

. Saunders then stated that “he wasn’t getting shot no more,” returned to the car and shot the victim twice. The next morning, the group burned the victim’s car, with him inside, to destroy the evidence. 1 On March 8, 2013, Saunders was convicted by a jury of one count each of second

- degree murder, conspiracy to commit robbery, robbery, kidnapping , and carrying a firearm without a license. He was represented by David Rudenstein, Esquire, at trial. The court imposed a mandatory sentence of life
i n prison for the murder charge with all other sentences to run concurrently. Saunders filed post

- sentence motions, which the court denied on June 28,
2013. On appeal to this Court, Saunders judgment of sentence was affirmed. See Commonwealth v. Saunders , 105 A.3d 783 (Pa. Sup er. 2014) (Table). Saunders ’ petition for allowance of appeal w as denied by the Supreme Court of Pennsylvania on December 31, 2014. See Commonwealth v. Saunders , 106 A.3d 725 (Pa. 2014) (Table ). Saunders did not seek review in the United States Supreme Court

. See U.S. Sup. Ct. R. 13 (“A petition for a writ of
certiorari seeking review of a judgment of a lower stat e court that is subject to discretionary review by the state court of last resort is timely whe n it is filed with the Clerk within 90 days after entry of the order denying

_________________ __________ ______ ____ _______ 1 See Trial Court Opinion, 10/1/12, at 2

- 4, for a th o rough recitation of the facts.J

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discretionary review ). Saunders ’ judgment of sentence became final on March 31 , 2015, and , thus, he had until March 31, 2016, to file a ny and all PCRA petition s . On February 23 , 2015 , Saunders filed a timely pro se PCRA petition and Mitchell Strutin, Esquire, was appointed as counsel. On October 29, 2015, Attorney Strutin filed a Turner /Finley no - merit letter 2 an d requested leave to withdraw. On December 21, 2015, the court dismissed Saunders pro se petition and granted Attorney Strutin ’s motion to withdraw as counsel. Saunders filed an appeal on January 22, 2016 and, while that appeal was pending, a second pro se PCRA petition. On April 6, 2016, Sander s’ second
pro se petition was dismissed due to Saunders ’ pending appeal in this Court. On April 6, 2017, this Court vacated the order dismissing Saunders’ first PCRA petition and remanded for the PCRA court to conduct an evidentiary hearing on Saunders’ claim that trial counsel, Attorney Rudenstein, was ineffective for failing to call alleged alibi witness She rr y Lockett , Saunders’
cousin

. Th is Court also directed that PCRA counsel be appointed and, if counsel deemed necessary, an amended petition be filed. See Commonwealth v. Saunders , 308 EDA 2018 (Pa. Super. filed April 6, 2017) (unpublished memorandum decision)

.

_________________ __________ ______ ____ _______ 2 Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988).J

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On May 17, 2017, the PCRA court appointed Earl Kauffman, Esquire, who f iled an amended PCRA petition reasserting S aunders’ ineffective assistance of counsel clai m . 3 On March 28, 2018, the PCRA court held an evidentiary hearing on the sole issue of trial counsel’s alleged ineffectiveness for failing to call Sherry Lockett as an alibi witness. Following the hearing, the Court dismissed Saunders’ petition

. 4 Saunders did not file an appeal. On July 26, 2018, Saunders filed a third pro se PCRA petition claiming that Attorney Kauffman failed to file a requested appeal of the March 28, 2018 dismissa l of his first PCRA p etition , and sough t reinstatement of his collateral appeal rights, nun c pro tunc

. On August 20, 2018, before the PCRA court ruled on Saunders’ third pro se PCRA petition, Saunders’ filed a pro se notice of appeal. At a status hearing on September 28, 201 8 before the PCRA court , Attorney Kauffman stated that he would withdraw the pending pro se appeal. On October 3, 2018, this Court granted the motion to withdraw the appeal.

_________________ __________ ______ ____ _______ 3 In the amended PCRA petition, Attorney Kauffman also averred that Saunders wished to add an illegality of sentencing claim under Miller v. Alabama , 567 U.S. 406 (2012). However, Attorney Kauffman noted that he would not raise this claim at an evidentiary hearing because Miller does not apply to a defendant who is 1 8 or older.

4 At the evidentiary hearing, Lockett testified that the last time she saw Saunders that night was between 6:30 p.m. and 7:00 p.m., see N.T. Evidentiary Hearing, 3/28/18, at 12, at least an hour before the murder occurred. See also P CRA Court Opinion, 4/13/22, at 12 (“ B ecause [Lockett] did not actually provide [Saunders] with an alibi, [Attorney Rudenstein] had no reason to call [Lockett] as a witness, and could not have been ineffective for failing to do so.”).J

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On November 3 0, 2018, Saunders filed, though Attorney Kauffman , an amended third PCRA petition requesting that his rights to appeal the March 28, 2018 dismissal of his first PCRA petition be reinstated, nun c pro tunc , because Attorney Kauffman did not file Saunders’ requested appeal

. The amended PCRA petition concedes, “[Saunders] advised counsel he wished to appeal.” PCRA Petition, 11/30/2018, at 2

. On December 7, 2018, t he PCRA court granted Saunders relief and , through Attorney Kauffman, 5 Saunders filed a notice of appea l , nunc pro tunc

. O n October 21, 2019, this Court dismissed Saunders’ appeal , finding that his amended third pro se petition was untimely and therefore, the PCRA court lacked jurisdiction to reinstate his right to appeal the dismi ssal of his first pro se petition

. See Commonwealth v. Saunders , 28 EDA 2019 (Pa. Super. filed October 21, 2019) (unpublished memorandum decision)

. T his Court reasoned that pursuant to Commonwealth v. Ballance , 203 A.3d 1027 (Pa. Super. 2019) , Saunders w as required, but failed to , plead and prove any of the timeliness exceptions in 42 Pa.C.S.A. § 9545(b)(1)(i)

- (iii )

. This Court also permitted Attorney Kauffman to withdraw. Saunders filed a fourth pro se PCRA petition on November 15, 2019 , wherein he again requested reinstatement of his right to appeal the dismissal

_________________ __________ ______ ____ _______ 5 Although Saunders was still represented by Attorney Kauffman on appeal and counsel could not raise his own ineffectiveness, “ a defendant [who wishes ] to assert claims that PCRA counsel was ineffective can request to have new counsel appointed to permit the assertion of suc h claims or can seek to represent himself. ” Commonwealth v. Stahl , 2023 PA Super 17,

--- A. 3d

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-- , *3 (Pa. Super. 2023)

.J

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of his first pro se PCRA petition and raised an ineffective assistance of counsel claim based on Attorney Kauf f man ’s failure to file an appeal

. Saunders claim ed it was not until October 3, 2018 that he learned Attorney Kauffman did not file an appeal of the PCRA court’s dismissal of Saunders’ first petition and , thus, he me t a timeliness exception. James Berardinelli, Esquire, was appointed as PCRA counsel on July 24, 2020, but moved to wi thdraw on September 1, 202 0. On September 18, 2020, Attorney Berardinelli was reli e ved, and on September 22, 2020, the court appointed Coley Reynolds, Esquire , as PCRA counsel. On April 5, 2021, Saunders filed a motion to proceed pro se. However, before the court could rule on his motion, Saunders retained Teri Himebaugh, Esquire, as counsel. On December 1, 2021, Attorney Himebaugh filed an amended fourth petition, raising claims of police misconduct and Brady 6 violations and seeking rei nstatement of Saunders’ right to appeal from the March 28, 2018 dismissal of his first PCRA petition. Upon finding that it had jurisdiction due to the newly

- discovered fact exception to the PCRA time bar, the PCRA court reinstat ed Saunders’ rights to appe al , nun c pro tunc , the dismissal of his first PCRA petition.

_________________ __________ ______ ____ _______ 6 Brady v. Maryland , 373 U.S. 83 (1963) (holding “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution”).J

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On December 18, 2021, Saunders filed a nun c pro tunc appeal from the PCRA court’s December 21, 2015 order dismissing his first petition

. However, that order had already been vacated and the case remanded for an evidentiary hearing. Thereafter, t he docket was corrected to reflect that the appeal lies from the March 28, 2018 order dismissing his first PCRA petition

. Following this correction, Saunders was dire ct ed to, and timely filed, a Pa.R.A.P. 1925 (b)
concise statement of errors complained of on appeal

. Saunders raises one question for our review: “Did the PCRA [c]ourt err when it found that trial counsel was not ineffective, in violation of [Saunders’]
Si xth Amendment rights, for failing to present alibi witness Sherry Lockett?” Appellant’s Brief, at 3. Specifically, Saunders argues that the PCRA court abused its discretion by not giving sufficient weight to the 2010 statement Lockett made . Saunders cla ims that the “last time [Lockett] had a clear independent, personal memory of what took place was when she gave her statement in 2010 to the private investigator.” Appellant’s Brief, at 19. However, “ [b] efore [this Court] can address the merits of [this ] issue, [] we must determine if the PCRA court had jurisdiction to restore [Saunders’ collateral] appeal [rights] such that this appeal is properly before us for review.” Ba l

lance , supra at 1 030

- 31. A petitioner must file a PCRA petition within one year of the date his judgment of sentence becomes final. See 42 Pa.C.S.A. § 9545(b)(1) ; id. at § 9545(b)(3) (stating that judgment of sentence becomes final at conclusion of direct review or expiration of time for seeking review). If a petitioner fails to fi le a PCRA petition within one year,J

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he must plead and prove an exception to the one

- year time bar listed in 42 Pa.C.S.A. § 9545(b)(i)

- (iii)

. This jurisdictional time bar is applied to all petitions, including second or subsequent petitions. Ballance , sup ra at 1031. Here, Saunders’ judgment of sentence became final on March 31, 201 5 , 90 days after his petition for allowance of appeal was denied by the Pennsylvania Supreme Court . Thus, he had one year, or until March 31, 201 6 , to file any and all petitions. Id. The petition pursuant to which the PCRA court granted the relief resulting in his nunc pro tunc appeal

— Saunders’ fourth

— was filed on November 15, 2019, almost four years after this judgment of sentence became final. Thus, Saunders was re quired to plead and prove a timeliness exception. Although Saunders’ fourth petition pleads an exception, he fails to prove
its merit. Saunders argues that “the Superior Court specifically stated in its Order that the ‘new fact exception’ to the PCRA’s t ime

- bar, 42 Pa.C.S.[A]. § 9545(b)(I)(ii), was applicable.” 7 Fourth Amended PCRA Petition, 12/01/21, at

_________________ __________ ______ ____ _______ 7 In Saunders , 28 EDA 2019, while reviewing Saunders third PCRA petition, this Court stated, The unjustified failure to file a requested appeal constitutes per se ineffectiveness. See Commonwealth v. Lantzy , 736 A.2d 654, 572 (Pa. 1999). In Commonwealth v. Peterson , 192 A.3d 1123 (Pa. 2018), ou r Supreme Court held that the petitioner's discovery of his counsel's per se ineffectiveness constituted a newly discovered ‘ fact ’ that satisfied the timeliness exception of section 9545(b)(l)(ii), as the petitioner had p l ed applicability of the timeliness exception within 60 day s of learning of his counsel's (Footnote Continued Next Page)J

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6. Specifically, Saunders claims that he did not know Attorney Kauffman failed to file a requested appeal of Saunders’ first PCRA petition following the March 28, 2018 evidentiary hearing until October 3, 2018

. See Third Pro Se PCRA Petition, 11/15/2019, at 11, 13 (unpagi nated). Thus, Saunders claims he had until October 3, 2019 to file a PCRA petition.
Here , however, even accepting Saunders’ argument that counsel’s ineffectiveness was a newly discovered fact, Saunders ’ fourth petition , filed on November 15, 2019, is st ill beyond his allotted time to file PCRA petition. See 42 Pa.S.C.A. § 9545(b)(2) (“Any petition invoking a [timeliness exception] in [42 Pa.S.C.A. § 9545(b)(1)] shall be filed within one year of the da t e the claim could have been presented.”)

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_________________ __________ ______ ____ _______ ineffectiveness, and he demonstrated that he could not have discovered it sooner with the exercise of due diligence

. Id. at 10 n.5. We note that as of December 15, 2018, the 60

- day time bar to file a petition has been exten ded to one year. See 42 Pa.C.S.A. § 9545(b).

8 We are cogniza nt of our Supreme Court’s decision in Commonwealth v. Bradley , 261 A.3d 381 (Pa. 2021), where it determined that a petitioner is permitted to raise claims of ineffective PCRA counsel at the firs t opportunity to do so, even if on appeal

. Id. at 401. However, Bradley does not create an exception to the PCRA’s time bar. Id. at 404 n.18 (“ We decline to adopt [an] approach [] that would deem a petitioner’s ‘discovery’ of initial PCRA counsel’s ineffective assistance to constitute a “new fact” that was unknown to petitioner , allowing such petitioner to overcome , in a successive petition , the PCRA’s time bar provision under the ‘ new f act ’ exception

. ” ). S ee also Stahl , supra at *4, citing Bradley , at 406 (Justice Dougherty concurring ) (“ Importantly, our decision today does not create an exception to the PCRA’s jurisdictional time

- bar, such that a petitioner represented by the same coun sel in the PCRA court and on PCRA appeal could file an untimely successive PCRA petition challenging initial PCRA counsel’s ineffectiveness because it was his ’first opportunity to do so.’”).J

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Becaus e Saunders failed to plead and prove a timeliness exception, the PCRA court lacked jurisdiction to consider the merits of his petition

. Accordingly, the PCRA court’s reinstatement of Saunders’ collateral appeal rights , nunc pro tunc , was in error. Ballance , supra . Appeal dismissed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/18/2023