J-A01043-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SAHEED O. SAUNDERS 

Appellant

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 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 18, 2008, at approximately 8:00 p.m., Saunders and two 

other men were standing together on Huntingdon Street in Philadelphia. The 

victim owed one of the three men $400.00. The group robbed 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 asked 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 individuals 
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searched the victim’s car for valuables, at which point they 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 

in 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. Super. 2014) (Table). 

Saunders’ petition for allowance of appeal was 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 state court that is subject 

to discretionary review by the state court of last resort is timely when 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 thorough recitation of the 

facts. 
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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 any and all PCRA 

petitions. 

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 letter2 and 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, Sanders’ 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 Sherry Lockett, Saunders’ 

cousin. This 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).

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

Finley, 550 A.2d 213 (Pa. Super. 1988).

 
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On May 17, 2017, the PCRA court appointed Earl Kauffman, Esquire,

who filed an amended PCRA petition reasserting Saunders’ ineffective 

assistance of counsel claim.

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 

dismissal of his first PCRA petition, and sought reinstatement of his collateral

appeal rights, nunc 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, 2018 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. 

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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 18 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 PCRA Court Opinion, 4/13/22, at 12 (“Because [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.”). 
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On November 30, 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, nunc 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, the PCRA 

court granted Saunders relief and, through Attorney Kauffman,5 Saunders

filed a notice of appeal, nunc pro tunc. 

On 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 dismissal of his 

first pro se petition. See Commonwealth v. Saunders, 28 EDA 2019 (Pa. 

Super. filed October 21, 2019) (unpublished memorandum decision). This 

Court reasoned that pursuant to Commonwealth v. Ballance, 203 A.3d 

1027 (Pa. Super. 2019), Saunders was 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

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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 such claims or can seek to 

represent himself.” Commonwealth v. Stahl, 2023 PA Super 17, --- A.3d -

--, *3 (Pa. Super. 2023). 
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of his first pro se PCRA petition and raised an ineffective assistance of counsel 

claim based on Attorney Kauffman’s failure to file an appeal. Saunders 

claimed 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 met a timeliness exception. James Berardinelli, Esquire, was 

appointed as PCRA counsel on July 24, 2020, but moved to withdraw on 

September 1, 2020. On September 18, 2020, Attorney Berardinelli was 

relieved, 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 Brady6

violations and seeking reinstatement 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 reinstated Saunders’ rights to appeal, nunc pro tunc, the 

dismissal of his first PCRA petition. 

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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”).
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On December 18, 2021, Saunders filed a nunc 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, the 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 directed 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’] 

Sixth 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 claims 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.” Ballance, supra at 1030-31. 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 file a PCRA petition within one year, 
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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, supra at 1031. 

Here, Saunders’ judgment of sentence became final on March 31, 2015, 

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, 2016, 

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 required 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 time-bar, 42 Pa.C.S.[A]. §

9545(b)(I)(ii), was applicable.”7 Fourth Amended PCRA Petition, 12/01/21, at 

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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), our 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 pled applicability of the 

timeliness exception within 60 days of learning of his counsel's 

(Footnote Continued Next Page)
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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 (unpaginated). 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 still 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 

date the claim could have been presented.”).

8

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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 extended to one year. See 42 Pa.C.S.A. § 9545(b).

8 We are cognizant 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 first 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 fact’ exception.”). See 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 counsel 

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.’”). 
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Because 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