J-S16020-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CHRISTOPHER CHARLES FAUST 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 950 EDA 2022

Appeal from the PCRA Order Entered February 1, 2022

In the Court of Common Pleas of Delaware County 

Criminal Division at CP-23-CR-0002079-2008

BEFORE: DUBOW, J., MURRAY, J., and McCAFFERY, J.

MEMORANDUM BY MURRAY, J.: FILED JUNE 9, 2023

Christopher Charles Faust (Appellant) appeals pro se from the order 

denying his first Post Conviction Relief Act (PCRA)1 petition following 

resentencing. We affirm.

On September 9, 2010, the trial court found Appellant guilty of thirddegree murder, attempted murder, and related offenses.

2

 Appellant’s 

convictions resulted from the February 24, 2008 shooting death of Anthony

Dunn (Dunn) and attempted murder of Yahshaw Humphrey (Humphrey). On

November 3, 2010, the trial court sentenced Appellant to an aggregate prison

term of 22 to 50 years, followed by 4 years of probation. This Court affirmed 

____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546.

2 See 18 Pa.C.S.A. §§ 2502(c), 901. 
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Appellant’s judgment of sentence; our Supreme Court denied allowance of 

appeal. See Commonwealth v. Faust, 64 A.3d 11 (Pa. Super. 2012)

(unpublished memorandum), appeal denied, 74 A.3d 1030 (Pa. 2013).

Appellant timely filed a first PCRA petition, which the PCRA court

dismissed without a hearing on November 2, 2015.3 On April 18, 2017, this

Court reversed the PCRA court’s order, in part. We vacated Appellant’s

judgments of sentence for attempted murder and third-degree murder and

remanded for resentencing in accordance with Alleyne v. United States, 570

U.S. 99 (2013). See Commonwealth v. Faust, 169 A.3d 1176 (Pa. Super.

2017) (unpublished memorandum at 3-4). On remand, the trial court

appointed new counsel for Appellant. Following a hearing, the court

resentenced Appellant to 17 – 35 years in prison for third-degree murder, and

a consecutive 5 – 10 years in prison for attempted murder. Sentence,

9/19/17.

On October 3, 2017, counsel filed an untimely post-sentence 

motion on Appellant’s behalf. That same day, counsel filed a 

petition for leave to withdraw. The court conducted a hearing on 

the post-sentence motion on October 19, 2017. At the conclusion 

of the hearing, the court denied the post-sentence motion as 

untimely and without merit. In a separate order entered that 

same day, the court permitted counsel to withdraw. Appellant 

filed a pro se notice of appeal on October 30, 2017, which this 

Court quashed for lack of jurisdiction. Appellant subsequently 

filed a petition for allowance of appeal, which our Supreme Court 

denied on January 7, 2020.

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3 The PCRA court permitted counsel to withdraw pursuant to Commonwealth

v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550

A.2d 213 (Pa. Super. 1988) (en banc). 
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On March 2, 2020, Appellant filed a pro se PCRA petition, alleging 

ineffective assistance of prior counsel in conjunction with the 

resentencing proceedings. The petition also averred that 

Appellant remained indigent, and it explicitly requested the 

appointment of counsel. (See PCRA Petition, filed 3/2/20, at 

8(B)). The PCRA court issued Pa.R.Crim.P. 907 notice of its intent 

to dismiss the petition without a hearing on April 22, 2020. 

Appellant timely filed a pro se response to the Rule 907 notice, 

but the PCRA court dismissed his petition on May 27, 2020. 

Appellant timely filed a pro se notice of appeal on June 19, 2020....

Commonwealth v. Faust, 245 A.3d 1034 (Pa. Super. 2020) (unpublished 

memorandum at 3) (emphasis added; footnote omitted).

On appeal, this Court vacated the PCRA court’s order and remanded for 

appointment of counsel. Id. (unpublished memorandum at 6). We concluded,

“Appellant’s current petition effectively amounts to a ‘first’ petition challenging 

his resentencing[.]” Id. (unpublished memorandum at 5). 

On remand, the PCRA court appointed counsel for Appellant, who filed 

an amended PCRA petition claiming resentencing counsel rendered ineffective 

assistance. Amended PCRA Petition, 3/31/21, ¶ 26. Appellant requested an 

evidentiary hearing and reinstatement of his post-resentencing and direct 

appeal rights nunc pro tunc. Id., ¶¶ 27-28. On December 10, 2021, the PCRA 

court filed Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s amended 

PCRA petition. Appellant filed counseled and pro se responses to the Rule 907 

notice. On February 1, 2022, the PCRA court dismissed Appellant’s amended 

PCRA petition. Appellant timely appealed.
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Appellant also filed a pro se petition to dismiss PCRA counsel and 

proceed pro se. Motion to Dismiss Counsel, 3/2/22. The PCRA court 

forwarded the motion to PCRA counsel, and dismissed Appellant’s pro se 

motion for lack of jurisdiction. Order, 4/13/22. On April 22, 2022, PCRA 

counsel filed a petition to withdraw from representation in this Court. Petition 

to Withdraw, 4/22/22.

On May 17, 2022, this Court remanded the matter to the PCRA court to 

conduct a hearing “as to whether Appellant’s waiver of counsel is knowing, 

intelligent and voluntary, pursuant to Commonwealth v. Grazier, 713 A.2d 

81 (Pa. 1998)[.]” Commonwealth v. Faust, 590 EDA 2022 (Pa. Super. 

5/17/22) (order). The PCRA court conducted a hearing, after which it 

permitted Appellant to proceed pro se with his appeal. PCRA Court Order, 

6/30/22. The appeal is now before us for review.

Appellant presents the following issues:

I. Whether PCRA counsel was ineffective for failing to raise, in her 

Amended PCRA Petition, whether the resentencing court abused 

its discretion by failing to give reasons why it mechanically 

reimposed Appellant’s previous (22) year sentence.

II. Whether the PCRA court erred for failing to comply with 

Pa.R.Crim.P. 720(A), which constituted a breakdown that excuses 

the untimely filing of Appellant’s direct appeal.

Appellant’s Brief at 4 (punctuation modified).

Before addressing Appellant’s issues, we must ascertain whether 

Appellant timely filed his PCRA petition. The timeliness of a PCRA petition is

jurisdictional; if the petition is untimely, courts lack jurisdiction and cannot
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grant relief. Commonwealth v. Wharton, 886 A.2d 1120, 1124 (Pa.

2005); see also Commonwealth v. Callahan, 101 A.3d 118, 121 (Pa.

Super. 2014) (recognizing courts do not have jurisdiction over an untimely

PCRA petition). A PCRA petition must either (1) be filed within one year of

the judgment of sentence becoming final, or (2) plead and prove a timeliness

exception. 42 Pa.C.S.A. § 9545(b). The one-year time limit is jurisdictional,

and a court has no power to address the substantive merits of an untimely 

petition. Commonwealth v. Abu-Jamal, 833 A.2d 719, 723-24 (Pa. 2003); 

Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000). 

The three exceptions to the one-year filing requirement are for newly 

discovered facts, interference by a government official, and a newly

recognized constitutional right. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any 

petition asserting an exception must also establish that the exception was 

raised within one year of the date the claim could have been first presented. 

42 Pa.C.S.A. § 9545(b)(2). 

Instantly, the trial court resentenced Appellant on September 19, 2017. 

Appellant’s counsel filed untimely post-sentence motions which did not stay 

the 30-day appeal period. See Pa.R.Crim.P. 720(A)(3) (“If the defendant 

does not file a timely post-sentence motion, the defendant’s notice of appeal

shall be filed within 30 days of imposition of sentence ....”). Although Appellant 

filed a direct appeal, this Court quashed the appeal for lack of jurisdiction; on 

January 7, 2020, the Pennsylvania Supreme Court denied allowance of appeal. 
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Commonwealth v. Faust, 217 A.3d 378 (Pa. Super. 2019) (unpublished 

memorandum at 8), appeal denied, 222 A.3d 1133 (Pa. 2020). Thus, 

Appellant’s judgment of sentence became final on Thursday, October 19, 

2017. See Pa.R.A.P. 903(a) (“the notice of appeal ... shall be filed within 30 

days after the entry of the order from which the appeal is taken.”). Appellant 

was required to file a PCRA petition within one year, or by October 19, 2018. 

Appellant filed the instant PCRA petition, his first after resentencing, on 

March 2, 2020. Appellant’s petition is facially untimely under the PCRA. 

However, in his amended petition, Appellant alleged he was abandoned by 

post-sentence counsel and on appeal. Amended Petition, 3/31/21, ¶¶ 8-10. 

Appellant claimed resentencing counsel did not communicate with him 

“relative to the legality of filing untimely post-sentence motion[s] and of 

effectuating his direct appeal to the Superior Court.” Id. ¶ 21. Appellant 

averred that he informed counsel he wished to challenge his sentence. Id.

¶ 22. Appellant filed his petition within one year of the Supreme Court’s denial 

of allowance of appeal, after the appointment of counsel. 

While “[i]t is well settled that allegations of ineffective assistance of 

counsel [(‘IAC’)] will not overcome the jurisdictional timeliness requirements 

of the PCRA[,]” Wharton, 886 A.2d at 1127, this rule does not extend to 

claims alleging abandonment of counsel. Commonwealth v. Bennett, 930 

A.2d 1264, 1274 (Pa. 2007). As our review of the record confirms that counsel 
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abandoned Appellant, and Appellant proceeded pro se with his direct appeal, 

we address Appellant’s substantive claims. 

Our review of the denial of PCRA relief “is limited to examining whether 

the PCRA court’s determination is supported by the evidence of record and 

whether it is free of legal error.” Commonwealth v. Sandusky, 203 A.3d 

1033, 1043 (Pa. Super. 2019) (citation and internal quotation marks omitted). 

“The PCRA court’s credibility determinations, when supported by the record, 

are binding on this Court; however, we apply a de novo standard of review to 

the PCRA court’s legal conclusions.” Commonwealth v. Mitchell, 105 A.3d 

1257, 1265 (Pa. 2014) (citation omitted).

Appellant asserts ineffectiveness of counsel. To be eligible for relief 

based on a claim of ineffective assistance of counsel, a PCRA petitioner must 

demonstrate, by a preponderance of the evidence, that (1) the underlying 

claim is of arguable merit; (2) no reasonable basis existed for counsel’s action 

or omission; and (3) there is a reasonable probability that the result of the 

proceeding would have been different absent such error. Commonwealth v. 

Steele, 961 A.2d 786, 796 (Pa. 2008).

Appellant first claims PCRA counsel was ineffective for not challenging 

discretionary aspects of Appellant’s new sentence. Appellant’s Brief at 8.4 

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4 Appellant claims ineffective assistance of counsel in his purported “Pa.R.A.P. 

2119(f) Statement of the Reasons to Allow an Appeal[.]” Appellant’s Brief at 

7. 

 
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Appellant argues his claim has merit because the resentencing court failed to 

state on the record its reasons for imposing the same sentence, “without 

considering the sentencing criteria pursuant to 42 Pa.C.S.A. § 9781(d)[.]” Id. 

According to Appellant, he asked PCRA counsel to challenge his sentence, but 

counsel advised him to wait until federal proceedings. Id. at 9.

Appellant further contends the resentencing court failed to consider 

mitigating evidence.5 Id. at 8. Appellant repeats his challenge to the 

discretionary aspects of his new sentence.6 Id. at 12-25. According to 

Appellant, the PCRA court improperly denied his request to file a nunc pro tunc

post-sentence motion. Id. at 25. 

A discretionary sentencing claim is not cognizable under the PCRA. See 

42 Pa.C.S.A. § 9543(a)(2) (setting forth the cognizable claims under the 

PCRA). Thus, PCRA counsel did not render ineffective assistance by not raising 

this issue. See Steele, 961 A.2d at 796. 

To the extent Appellant presents a layered ineffectiveness claim based 

on resentencing counsel’s failure to timely file a post-sentence motion, and 

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5 Appellant also claims his sentence is illegal. Appellant’s Brief at 8. Appellant 

does not develop this bald claim, stating that his sentence is “manifestly 

excessive and clearly unreasonable under [42 Pa.C.S.A. §] 9781(c)(1) and (2) 

and (d).” Id.

6 Appellant acknowledges the court resentenced him within the standard 

ranges of the sentencing guidelines, and appears to challenge the imposition 

of consecutive rather than concurrent sentences. Appellant’s Brief at 21.
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PCRA counsel’s failure to present this claim, we observe that post-sentence 

counsel sought reinstatement of Appellant’s post-sentence rights nunc pro 

tunc. As the PCRA court explained: 

Following remand, Robert Turco, Esquire, was appointed to 

represent Appellant at the resentencing hearing, which was held 

on September 19, 2017. At the conclusion of the hearing, 

Appellant was resentenced to 17-to-35 years’ imprisonment for 

third-degree murder and a consecutive term of 5–to-10 years’

imprisonment for attempted murder. Appellant executed a 

statement of post sentence rights. [N.T., 9/19/2017, p. 29].

On October 3, 2017, Attorney Turco filed a petition to 

withdraw as counsel as well as an untimely Petition for 

Reconsideration of Sentence from September 19, 2017. In the 

petition, Attorney Turco relayed that Appellant wrote him a letter 

dated September 19, 2017, requesting that a post-sentence 

motion be filed; however, the letter was not sent until September 

27, 2017, and [counsel] did not receive the letter until the ten 

days to file a timely motion had expired.

[FN] There was no 

documentation attached to the motion or provided by Appellant to 

this [c]ourt or Attorney Turco to indicate when the letter was 

actually given to the prison authorities to be mailed. Following a 

hearing held on October 19, 2017, the motion to reconsider was 

denied as untimely but also without merit, indicating that this 

[c]ourt would not have changed Appellant’s sentence even if 

timely filed. Attorney Turco was permitted to withdraw.

[FN] See Petition for Reconsideration of Re-Sentence of September 

19, 2017[,] filed on October 3, 2017.

* * *

The transcript from the resentencing hearing clearly evinces 

that this [c]ourt provided Appellant adequate reasons for the new 

sentence. Therefore, assuming arguendo[] that Attorney Turco 

had filed a timely post-sentence petition, it would unquestionably 

have been denied as meritless.
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PCRA Court Opinion, 3/15/22, at 2-3, 6 (footnote in original, emphasis added).

The record confirms the PCRA court’s account. Further, the trial court 

explained it

appointed counsel to represent Appellant at the re-sentencing 

hearing. Both counsel for Appellant and counsel for the 

Commonwealth submitted sentencing memorandums which this 

[c]ourt reviewed. [The c]ourt also reviewed the transcripts from 

the original sentencing, which included testimony from the 

victim’s families. [The c]ourt heard from counsel for Appellant 

and Appellant at the hearing, in regard to Appellant’s upbringing, 

his remorse, and the actions he has taken while incarcerated in 

order to better himself. [N.T., 9/17/2017 p. 9-12]. [The c]ourt 

also heard from Appellant’s friend, Randall Smith, who told [the 

c]ourt about Appellant’s good character [N.T., 9/17/2018 p. 17]. 

The Commonwealth recited to [the c]ourt the facts from trial, that 

Appellant was chasing three victims down by Veteran’s Park in 

Chester, PA, all the way down the block while firing his weapon at 

them. [N.T., 9/17/2017 p. 18]. The Commonwealth also pointed 

out that Appellant has been misconduct free in prison for three 

years but has been incarcerated for ten. [N.T., 9/17/2017 p. 20]. 

The guidelines for the re-sentencing were Murder In the 

Third Degree, with deadly weapon enhancement, 90 [-] 240 

months with a mitigated range of 78 months. For Criminal 

Attempt to Murder with no serious bodily injury, the standard 

range was 78 [-] 96 months with a mitigated range of 66 months. 

[N.T., 9/17/2017 p. 24].

The [c]ourt imposed the following sentence: Information A: 

Murder in the Third Degree, 204 [-] 420 months at SCI and on 

Information G: Attempted Murder: 60 [-] 120 months consecutive 

to Information A. Appellant was not RRRI eligible or boot camp 

eligible. All other conditions of the original sentence remained the 

same. 

....

... Appellant claims that [the resentencing court] should 

have considered the mitigating facts that the original sentencing

judge was unable to consider due to the mandatory minimum. 
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[The resentencing court] took into consideration everything 

Appellant detailed in his memorandum as well as his words at 

sentencing. Simply because [the c]ourt did not minimize his 

sentence does not mean they were not considered.

Secondly, Appellant claims that everything he has done in 

prison since the time of his incarceration, such as taking classes 

and good behavior, should be considered. This is wholly false and 

an issue[] that would be considered at a parole board hearing.

[The resentencing c]ourt was instructed to re-sentence Appellant 

solely because of the mandatory minimum that was imposed at 

the time of the original sentence. The rest of the sentencing 

scheme was affirmed. [The c]ourt removed the mandatory 

minimum and sentenced Appellant accordingly. What Appellant 

has completed while incarcerated is of no bearing on resentencing Appellant. 

See Trial Court Opinion, 2/7/18, at 2, 6-7.

Our review of the record confirms the above findings and conclusions, 

and we discern no abuse of discretion. Because Appellant’s underlying claim 

lacks arguable merit, a layered claim of ineffectiveness of counsel would fail. 

See Steele, 961 A.2d at 796. 

In his second issue, Appellant argues the resentencing court violated 

Pa.R.Crim.P. 720(A). Appellant’s Brief at 25. Appellant also claims the PCRA 

court erred by not allowing him to file a post-sentence motion nunc pro tunc. 

Id. Appellant asserts that noncompliance with Pa.R.Crim.P. 720(A) deprived 

him of the ability to file a post-sentence motion. Id.

We address this claim to the extent it invokes the legality of Appellant’s

sentence. See 42 Pa.C.S.A. § 4523(a)(2)(i), (vii) (deeming cognizable a claim 

challenging the legality of sentence). 

Pennsylvania Rule of Criminal Procedure 720(A) provides:
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(1) Except as provided in paragraphs (C) and (D), a written postsentence motion shall be filed no later than 10 days after

imposition of sentence.

(2) If the defendant files a timely post-sentence motion, the

notice of appeal shall be filed:

(a) within 30 days of the entry of the order deciding the

motion;

(b) within 30 days of the entry of the order denying the

motion by operation of law in cases in which the judge

fails to decide the motion; or

(c) within 30 days of the entry of the order memorializing

the withdrawal in cases in which the defendant withdraws

the motion.

(3) If the defendant does not file a timely post-sentence motion,

the defendant’s notice of appeal shall be filed within 30 days of

imposition of sentence, except as provided in paragraph (A)(4).

(4) If the Commonwealth files a timely motion to modify sentence

pursuant to Rule 721, the defendant’s notice of appeal shall be

filed within 30 days of the entry of the order disposing of the

Commonwealth’s motion.

Pa.R.Crim.P. 720(A).

Appellant fails to demonstrate any error. There is no legal authority to

support Appellant’s claim that he was entitled to file a post-sentence motion

nunc pro tunc. Although Appellant argues the resentencing court should have

notified him of counsel’s untimely filing, Rule 720(A) does not require the court

to do so. See id. As this issue lacks merit, a related ineffectiveness claim

would not warrant relief. See Steele, 961 A.2d at 796. 

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/9/2023