J

### -S29042-17
NON-PRECEDENTIALDECISION - SEE 

### SUPERIORCOURT

### I.O.P. 

### 65.37 COMMONWEALTH OF PENNSYLVANIA : INTHE SUPERIOR COURT OF PENNSYLVANIA
v.
GURINDERSINGH 

### Appellant : No. 2975 EDA 2016 Appeal

### from the PCRA

### OrderAugust22, 2016 Inthe CourtofCommon Pleas of Delaware County Criminal Division at No(s): 

### CP-23-CR-0002760-2012
BEFORE: LAZARUS, SOLANO, JJ., and STEVENS, P.J.E.* MEMORANDUM BY STEVENS, P.J.E.: 

### FILED MAY

### 08,2017 Appellant Gurinder Singh appeals

### from the 

### order entered in 

### the Court of Common Pleas 

### of Delaware 

### County on 

### August 22, 

### 2016, denying his second 

### petition 

### for relief filed 

### pursuant to 

### the Post 

### Conviction Relief Act ("PCRA").1 In 

### addition, counsel has filed an 

### Application to 

### Withdraw Appearance. Upon 

### review, we 

### grant counsel's 

### motion seeking to 

### withdraw and 

### affirm the orderofthe PCRA

### court. The 

### trial court summarized the 

### relevant facts and 

### procedural 

### history herein as

### follows: On February 24, 2012, the 

### Appellant was 

### arrested and charged 

### with First

### -Degree Murder, Third-Degree Murder, and

* FormerJusticespecially assigned to

### theSuperiorCourt.

1 42 Pa.C.S.A. §§ 

### 9541-9546.J

### -S29042-17
related charges, in 

### connection 

### with the death of his wife. 

### Appellant contends 

### that his 

### wife 

### committed suicide because 

### of the shame 

### resulting from 

### theirdaughter marrying a Muslim man. 

### Appellant and his

### wifewerefollowers ofthe Sikh religion and did notapprove 

### of

### theirdaughter'smarriage.The Delaware County Coroner 

### determined 

### thatthe deathof

### Appellant'swife,Jaswinder Kaur, was a 

### homicide by

### asphyxiation, assaulted by

### another.' On April 30, 

### 2012, a 

### Preliminary Hearing was held and Mr. 

### Scott Kramer, Esquire 

### represented the Appellant. On May 10, 2012, 

### Appellant was 

### arraigned. On October 5, 

### 2012, the Commonwealth filed a "Motion to 

### Introduce Evidence of the Defendant's 

### prior bad acts 

### against the 

### victim under Pa.R.E. 

### 404(b)". (The 

### Commonwealth asserted 

### that on February 20, 2012, two days 

### prior to 

### the 

### victim's murder, three of the 

### Appellant's children witnessed the 

### Appellant threaten to kill 

### the 

### victim. On 

### the same 

### date, the children observed 

### the 

### Appellant strike and slap 

### the 

### victim about her face and body). (Motion p. 2)2 On December4, 

### 2012, 

### Appellantentered a non

### -negotiated Guilty Plea to Third-Degree Murder. On 

### January 23, 2013, the 

### court held a Sentencing Hearing3. At the Hearing, the Commonwealth asked 

### the 

### court to sentence 

### Appellant to a period of 

### state incarceration of 20 to 40years. (N.T. 

### 1/23/13 p. 30). 

### Appellant's counsel requested the 

### court sentence

### Appellant toward the bottom ofthe standard range. (N. T. 

### 1/23/13 p. 

### 27). On 

### January23, 

### 2013, the 

### courtsentenced 

### Appellantto: 15to 30 

### years, SCI, 

### followed by 

### five years consecutive state probation with credit 

### for time served 

### from 

### 2/22/12 to 

### 1/23/13. (N. T. 

### 1/23/13 p. 

### 35-36). On February 5, 

### 2013, Appellant's Plea Counsel filed a Motion 

### for Reconsideration of Sentence, which was denied on March 4, 2013. 

### Appellant neverfiled a 

### timely Notice ofAppealto the 

### Superior Court. However, on October 11, 2013, 

### Appellant's Plea Counsel filed an 

### untimely Notice of Appeal at 2878 EDA 2013, which was 

### withdrawn by Plea Counsel on 

### November 26, 2013. PCRA

## I: On March 3, 

### 2014, 

### Appellant filed a 

### pro se PCRA Petition alleging 

### inter alia 

### that Plea Counsel failed to file a 

### timely notice of appeal. 

### (pro se PCRA Petition p. 3). On March 5, 

### 2014, an 

### orderwas entered 

### appointing Steve Molineux, Esquire as PCRA counsel. On 

### November 5, 2014, Mr. Molineux, Esquirefiled a "No Merit" 

### letter. On 

### January 9, 2015, the undersigned entered an Order dismissing the Post

### -Conviction Relief Act Petition. On

- 2 -J

### -S29042-17 January 29, 

### 2015, the

### Appellantfiled a

### timely Notice 

### ofAppealto 

### the Pennsylvania 

### Superior Court and itwas docketed at No. 437 EDA 2015. The 

### Superior Court issued a 

### Memorandum Opinion filed December 29, 2015. The Opinion 

### affirmed the PCRA denial 

### order, holding

### the Petitionwas 

### untimely. PCRA

## II: On April 28, 2016, 

### Appellant filed his second 

### pro se PCRA Petition. The 

### court appointed Scott Galloway, Esquire, as PCRA counsel. On July 11, 

### 2016, Mr. Galloway, filed an "Amended Petition 

### for Post Conviction Collateral Relief". On July 27, 2016, the Commonwealth responded. On 

### August 9, 

### 2016, the 

### court filed a Notice 

### of 

### Intent to Dismiss PCRA Petition 

### without a Hearing. On 

### August 22, 2016, the undersigned entered an Order dismissing the 

### Appellant's second Post

### -Conviction Relief Act Petition. On 

### September 19, 2016, 

### Appellant filed a 

### timely Notice of Appeal. Consequently, 

### pursuantto Pa. R.A.P. 

### 1925(b), the Court ordered Appellant to 

### file a Concise 

### Statement of Errors Complained of on Appeal. On 

### September 21, 2016, 

### Appellant filed a Concise

### Statement

. . . . 

### 'Affidavit of Probable Cause p.2. 

### (Affidavit of Probable Cause, Criminal 

### Complaint, and Post Mortem Report were made 

### part of the Guilty Plea and 

### admitted into evidence as a basis 

### for the Plea. (N. T. 

### 12/4/12 pp. 

### 21-22). 2 The 

### Appellant entered a Plea before the Motion was heard by 

### the court. 3Three ofthe

### Appellant'sfive childrentestified atthe Sentencing Hearing and each one 

### testified against the Appellant. His son Praduc Singh

### testified: "All I 

### wantto say is I 

### want him to receive the 

### maximum punishment for what he did. 

### That's all I 

### want to say. I

### don'tsupport him 

### at all." (N.T. 

### 12/4/12 p.12; p.14; p.21). TrialCourtOpinion, filed

### January 10, 

### 2017, at 1-4. On February 22, 2017, counsel filed his 

### Application to 

### Withdraw Appearance and a 

### purported 

### Turner/Finely brief2 

### with this Court.3



### 2Commonwealth v. 

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

### Commonwealthv. 

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

### banc). 

## -3J

### -S29042-17
Appellant has not responded to the 

### petition to 

### withdraw as counsel, nor has he retained 

### alternate counsel

### forthis appeal. Priortoaddressing 

### the 

### meritsofAppellant's claims on appeal, we

### must 

### first decide 

### whether counsel has 

### fulfilled the procedural 

### requirements for withdrawing his 

### representation. 

### Commonwealth v. 

### Daniels, 947 A.2d 795, 797 (Pa.Super. 

### 2008). This 

### Court has listed 

### the conditions to be 

### met bycounsel in seeking to

### withdraw in a 

### collateral appeal as 

### follows:
Counsel 

### petitioning to 

### withdraw from PCRA 

### representation must proceed

... 

### under 

### [Turner, supra and 

### Finley, supra and]

... 

### must review 

### the case zealously. 

### Turner/Finley counsel 

### must then submit a 

### "no

### -merit" letter to 

### the 

### trial court, or 

### brief on appeal to

### this Court, detailing the nature and 

### extentofcounsel's 

### diligent review of 

### the case, 

### listing the issues which 

### petitioner wants to have 

### reviewed, explaining why and how those issues lack 

### merit, and 

### requesting permissionto

### withdraw. Counsel 

### must also send to 

### the 

### petitioner: (1) a copy of the 

### "no 

### merit" letter/brief; (2) a copy of counsel's 

### petition to 

### withdraw; and (3) a 

### statement advising 

### petitioner ofthe 

### right to proceed 

### proseor by new counsel. (Footnote Continued)

3 Counsel 

### erroneously purports to 

### withdraw under

### Anders v. 

### California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 2d 493 

### (1967), which applies when counsel seeks to 

### withdraw from representation on 

### direct appeal. When counsel seeks to

### withdrawfrom representation on 

### collateral appeal, as is 

### the case herein, the dictates of 

### Finley and 

### Turner are applicable. 

### Commonwealth v. 

### Wrecks, 931 A.2d 717, 721 (Pa.Super. 

### 2007) (counsel 

### petitioning to 

### withdraw from PCRA 

### representation must proceed not under 

### Anders, but under

### Turner and 

### Finley). However, because an

### Anders brief provides 

### greater protection to a 

### defendant, this Court may accept an 

### Anders brief in lieu 

### of a 

### Turner/Finley"no 

### merit" letter. 

### Commonwealth v. 

### Reed, 107 A.3d 137, 139 n. 5 (Pa.Super. 

### 2014). We will refer to counsel's

### erroneously

### titled

### Anders Briefas a

### Turner/Finleybrief.


## -4J

### -S29042-17

* * * 

### [W]here counsel 

### submits a 

### petition and no

### -merit letter 

### that

... 

### satisfythetechnical demandsof

### Turner/Finley, the

### court-trial court or 

### this 

### Court-must then conduct its own review of the 

### merits of 

### the case. 

### If the 

### court agrees 

### with counsel 

### that the claims are 

### without merit, the 

### court will 

### permit counsel to 

### withdraw and deny relief. 

### Commonwealth v. 

### Doty, 48 A.3d 

### 451, 454 (Pa.Super. 

### 2012) 

### (citation omitted). Herein, counsel indicates he had made a 

### thorough review of 

### Appellant's case, and 

### after said 

### review concluded 

### the appeal is 

### wholly frivolous. SeeApplication to 

### Withdraw Appearance, filed 

### 2/22/17, at 1111 2- 3. Counsel also lists 

### numerous issues 

### relevant to 

### this appeal and 

### explains why, in his 

### view, 

### they lack 

### merit. In addition, counsel has 

### attached to his 

### motion a copy 

### of the 

### letter he 

### sent to 

### Appellant wherein counsel advised 

### Appellant of his 

### right to proceed 

### pro se or 

### through 

### privately-retained counsel. Counsel also 

### attached to 

### the 

### letter a copy of his 

### application to 

### withdraw and 

### Turner/Finely brief. Thus, we conclude 

### that counsel has 

### substantially complied 

### with the requirements necessary to 

### withdraw as counsel. 

### See 

### Commonwealth v. 

### Karanicolas, 836 A.2d 

### 940, 947 (Pa.Super. 

### 2003) (holding

### thatsubstantial compliance

### with the 

### requirements to 

### withdraw as counsel will 

### satisfy the 

### Turner/Finley criteria).4 We now

4 We note 

### that to 

### withdraw under

### Anders, counsel 

### must: (1) petition the Court

### for leave to 

### withdraw and 

### certify that after a 

### thorough review of the record, he or she has concluded 

### that the issues to be raised are 

### wholly (Footnote ContinuedNextPage) 

## -5J

### -S29042-17
review this appeal based on 

### the issues 

### ofarguable 

### merit counsel presented in 

### the 

### Turner/Finley brief to 

### ascertain 

### whether they entitle Appellant to relief.Counsel 

### identified thefollowing issues

### forappellate review: 1) The 

### Guilty Plea 

### offer was not 

### knowingly, 

### voluntarily and 

### intelligentlytendered. 2) 

### Itwas requested 

### ofTrial Counsel to 

### provide an 

### interpreter knowing 

### that [Appellant] could not 

### properly understand, spell, read or

### write the English language. 3) 

### [Appellant] requested Trial Counsel to 

### file a 

### timely Motion 

### for Reconsideration ofSentenceand Counselfailed to do so. 4) Trial Counsel was requested to file a Notice of Appeal to 

### the Superior Court which he failed to do in a 

### timely manner resulting in said Appeal being

### withdrawn. 

### Turner/FinelyBriefat4. When 

### reviewing the 

### propriety of an 

### order denying PCRA 

### relief, this Court is 

### limited to a 

### determination of 

### whether the evidence of record 

### supports the PCRA 

### court's conclusions and 

### whether its ruling is 

### free of legal 

### error. 

### Commonwealth v. 

### Robinson, Pa.
, , 139A.3d 178, 185 

### (2016). This 

### Court will not 

### disturb the PCRA 

### court's findings unless

(Footnote Continued) 

### frivolous; (2) file a 

### brief referring to 

### anything in 

### the record 

### that might arguably support the appeal; and (3) provide a copy 

### of the brief to 

### the 

### appellantadvising him 

### of his 

### right to 

### obtain new counsel or to 

### file a 

### pro se 

### brief raising any

### additional points

### thattheappellant deems

### worthy of review. 

### Karanicolas,supra at947.



## -6J

### -S29042-17
there is no 

### support for them in 

### the certified record. 

### Commonwealth v. 

### Lippert, 85A.3d 1095, 1100 (Pa.Super. 

### 2014). At the 

### outset, we 

### consider 

### whether this appeal is 

### properly before us. The 

### question of

### whether a 

### petition is 

### timely raises a 

### question of law, and where a 

### petitioner raises

### questions of law, 

### ourstandard ofreview is de novo and 

### ourscope 

### of review is 

### plenary. 

### Commonwealth v. 

### Callahan, 101 A.3d 118, 121 (Pa.Super. 

### 2014). All PCRA 

### petitions must befiled 

### within one

### yearofthe date uponwhich the 

### judgment of sentence became 

### final, unless one of the 

### statutory exceptions set 

### forth in 42 Pa.C.S.A. § 

### 9545(b)(1)(i)-(iii) applies. The 

### petitioner bears 

### the burden of pleading and 

### proving an 

### applicable 

### statutory exception. 

### If the 

### petition is 

### untimely and 

### the 

### petitioner has not pled and proven an 

### exception, the petition must be dismissed 

### without a hearing because Pennsylvania 

### courts are 

### withoutjurisdiction to consider the 

### merits of the 

### petition. 

### Commonwealth v. 

### Taylor, 65 A.3d 

### 462, 468 (Pa.Super. 

### 2013). 42 Pa.C.S.A. § 

### 9545(b)(1)(i)-(iii) states: 

### (b)Time

### forfiling petition.-- (1) Any 

### petition under this subchapter, including a second or 

### subsequent 

### petition, shall be filed 

### within one 

### year of the date 

### the

### judgment of sentence becomes 

### final, unless 

### the petition alleges and 

### the 

### petitioner proves

### that: (i) the 

### failure to raise 

### the claim 

### previously was 

### the result of 

### interference by 

### government officials 

### with the presentation of 

## -7J

### -S29042-17
the claim in 

### violation of the Constitution or laws of this 

### Commonwealthor

### theConstitution or laws ofthe United States: 

### (ii) the facts upon which the claim is predicated were unknown to 

### the 

### petitioner and could 

### not have been ascertained by

### the exerciseofdue

### diligence; or 

### (iii) the right asserted is a 

### constitutional right 

### that was recognized by 

### the Supreme 

### court of the United States or the Supreme Courtof Pennsylvania

### afterthe

### time period provided in 

### this section and has been held by 

### that court to 

### apply 

### retroactively. 42 Pa.C.S.A. § 

### 9545(b)(1). In 

### addition, any 

### petition 

### attempting to invoke
one of these exceptions 

### "shall be filed 

### within 60 days of

### the date the claim could have been 

### presented." 42 Pa.C.S.A. §

### 9545(b)(2). Herein, 

### Appellant was sentenced on 

### January 23, 2013, and filed an 

### untimely post

### -sentence motion on February 5, 2013. As 

### the post

### -sentence motion had been 

### untimely filed, it did not toll the 

### time period in which 

### Appellant was required to file a notice 

### of appeal 

### with this Court. 

### See 

### Commonwealthv. 

### Green, 862A.2d 

### 613, 618 (Pa.Super. 

### 2004) (en banc). As such, 

### Appellant's notice of appeal had to be filed by February 22, 2013. As 

### Appellant failed to do so, his 

### judgment of sentence became 

### final 

### for purposes of 

### the PCRA on 

### that date. 

### See 42 Pa.C.S.A. § 

### 9545(b)(3) ("a 

### judgment becomes 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"); see

### also U.S. Sup.Ct.R. 13.1. A 

### timely PCRA 

### petition had to have been filed by Monday, February 24, 

### 2014; 

### therefore, the 

### instant petition 

### initially filed 

### pro se on April 28,

- 8 -J

### -S29042-17 2016, was 

### patently untimely, and 

### the burden fell upon 

### Appellant to plead and prove

### that one 

### ofthe enumerated exceptions to 

### the 

### one-yeartime-bar applied to his case. 

### See 42 Pa.C.S.A. § 

### 9545(b)(1); 

### Commonwealth v. 

### Perrin, 947 A.2d 1284, 1286 (Pa.Super. 

### 2008) (to invoke a 

### statutory exception to 

### the PCRA

### time-bar, a 

### petitioner must properly plead and prove all required elements ofthe 

### exception). A 

### prior panel of

### thisCourt previously determined we lacked

### jurisdiction to consider 

### Appellant's 

### fourth claim presented herein 

### that his plea counsel had been 

### ineffective for failing to 

### file a 

### timely notice of Appeal 

### from Appellant's

### judgment of sentence because he raised it in an 

### untimely PCRA 

### petition. 

### Commonwealth v. 

### Singh, No. 437 EDA 

### 2015, unpublished memorandum at 6-8 (Pa.Super. filed December 29, 

### 2015). Therefore, this claim was 

### previously litigated. See 42 Pa.C.S.A. § 

### 9543(a)(3) (requiring 

### that the allegation of 

### error an 

### appellant presents in a PCRA 

### petition has not been 

### previously litigated or 

### waived); 

### see 

### also 42 Pa.C.S.A. § 

### 9544(a)(2) (an issue is 

### previously litigated if

### "the highest appellate court in which the 

### petitioner could have had review as a 

### matter of

### right has ruled on

### the 

### merits ofthe issue"). With regard to the remaining 

### three claims

### Appellant presents, we find 

### that he has not pled or proven the 

### applicabilityofanyexception to

### the PCRA 

### time-bar under Section 

### 9545(b), nor does he explainwhy he could not have known 

### about these issues 

### until April of 2016. As such, 

### Appellant's second 

## -9J

### -S29042-17 petition filed 

### pursuant to 

### the PCRA is 

### manifestly untimely and 

### this Court lacks 

### jurisdiction to 

### offer him any 

### form of relief. 

### Commonwealth v. 

### Jackson, 30A.3d 516, 523 (Pa.Super. 

### 2011). Motion to

### withdraw ascounsel 

### granted. Orderaffirmed. Judgment Entered.

J seph D. 

### Seletyn, Prothonotary

Date: 

### 5/8/2017

- 10 -