J

- S68038

- 16

*Retired Senior Judge assigned to the Superior Court. NON
- PRECEDENTIAL DECISION
– SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.
ANTONIO ARMOND WARNER,

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

PENNSYLVANIA

No. 435 WDA 2016
Appeal from the PCRA Order August 12, 2015, in the Court of Common Pleas of Erie County, Criminal Division, at No.: CP

- 25

- CR

- 0003026

- 2008

BEFORE: SHOGAN, SOLANO, and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 12, 2017
Antonio Armond Warner (Appellant) appeals from the August 12, 2015
order which denied his petition filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541

- 9546. Counsel has filed a petition to

withdraw 1 and a brief pursuant to Anders v. California , 386 U.S. 738
(1967). 2 Upon review, we affirm the order of the PCRA court and grant
counsel’s petition to withdraw.

1 Initially, we determined that Appellant’s counsel had failed to file a petition to withdraw. As such, this Court issued an order on October 21, 2016, directing counsel to file said petition with proof of service within 20 days, and counsel complied. Appellant’s case is now ready for our review.

2 Counsel has confuse d the required procedures for withdrawing from representation on direct appeal and withdrawing on a PCRA appeal. Direct appeal counsel seeking to withdraw from representation must comply with the requirements set forth in Anders and Commonwealth v. Santia go , 978 A.2d 349 (Pa. 2009) . The procedural requirements set forth in Commonwealth v. Turner , 544 A.2d 297 (Pa. 1998), andJ

- S68038

- 16

- 2

-

The PCRA court summarized the facts and procedural history as

follows.

The PCRA [petition] before the [PCRA court] is presented after [Appellant’s] third trial and direct appeal. 1 The charges arose on October 9, 2008 when [Appellant] entered the victim’s car at around 1:00 a.m., and proceeded to threaten, beat, and repeatedly rape h er until the early hours of the morning when she escaped.

____________________________________________ 1 [Appellant] was found guilty of all charges except the second charge of IDSI forcible compulsion, on July 13, 2009 after his first trial by jury and
se ntenced to an aggregate of 311⁄2 to 63 years of incarceration on November 5, 2009 by the Honorable Judge Ernest DiSantis Jr. [Appellant] filed a PCRA [petition] on July 9, 2010, and was granted a new trial on December 2, 2010. [Appellant’s] second trial
on January 25, 2012 resulted in a mistrial.
[Appellant] was charged with rape, criminal attempt of involuntarily deviate sexual intercourse (“IDSI”), IDSI, sexual assault, aggravated indecent assault, indecent assault, terroristic threats, unlawful restrain t, simple assault, and theft by unlawful taking.
On March 23, 2012, [Appellant] was found guilty after his third trial by jury of all charges except terroristic threats and sentenced by the Honorable Judge Ernest DiSantis, Jr. on July 11, 2012 to an aggr egate of 30 to 60 years of incarceration.
PCRA Court’s Notice of Intent to Dismiss, 7/20/2015, at 1

- 2 (some footnotes
removed).

Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1998) ( en banc ), govern withdrawal by counsel from representation on PCRA appeals. See Commonwealth v. Wrecks , 931 A.2d 717, 721 (Pa. Super. 2007). However, an Anders brief which complies substantially with the requirements of Turner / Finley is sufficient to allow withdrawal. Commonwealth v. Daniels , 947 A.2d 795, 798 (Pa. Super. 2008).J

- S68038

- 16

- 3

-

Appellant filed pro se a motion for post

- verdict relief July 16, 2012,
which the trial court denied. Appellant appealed and this Court affirmed
Appellant’s judgment of sentence on September 11, 2013. Commonwealth

v. Warner , 1219 WDA 2012 (Pa. Super. 2013) (unpublished memorandum).
On January 15, 2015, Appellant filed a pro se PCRA petition. Counsel
was appointed and subsequen tly filed a “no merit” letter and petition to
withdraw as counsel on March 2, 2015.
On July 20, 2015, the PCRA court issued a notice of its intent to
dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907.
Appellant responded pro se , setting forth several errors committed by both
the trial court and Appellant’s direct appeal counsel. Appellant also argued

that his pro se PCRA petition was timely filed. Appellant’s Response to
Notice to Dismiss, 8/10/2015. On August 12, 2015, the PCRA court
dismissed the petition without ruling on counsel’s petition to withdraw.
Appellant pro se filed a notice of appeal. 3

3 Although the PCRA court did not issue an order granting counsel’s petition to withdraw when denying Appellant’s PCRA petition, it acted as though it had. Future correspondences were sent directly to Appellant and not counsel, including an order for Appellant to file a statement pursuant to Pa.R.A.P. 1925. Appellant’s pro se request for extension to file said statement was denied by the PCRA court. See Order of Court, 4/21/2016. As such , the PCRA court’s 1925(a) opinion found all of Appellant’s claims waived. Trial Court Opinion, 4/21/2016. Because no order was entered permitting counsel to withdraw, Appellant was still represented following the dismissal of his PCRA petition. Thus, s ubsequent orders, including the order mandating the filing of a 1925 statement, should have been sent to counsel. Due to this apparent breakdown, we decline to find waiver.J

- S68038

- 16

- 4

-

Before we may address the potential merit of Appellant’s claims, we
must determine if counsel has complied with the technical requireme nts of

Turner and Finley

. 4

... Turner

/ Finley counsel 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 extent of counsel’s diligent rev iew of the case, listing the issues which the petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to 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 of the right to proceed pro se or by new counsel.
If counsel fails to satisfy the foregoing technical prerequisites of Turner / Finley , the court will not reach the merits of the underlying claims but, rather, will merely deny counsel’s request to withdraw. Upon doing so, the court will then take appropriate steps, such as directing counsel to file a proper Turner

/ Finley request or an advocate’s brief.
However, where counsel submits a petition and no

- merit letter that do satisfy the technical demands of 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. By contrast, if the claims appear to have merit, the court will deny counsel’s request and grant relief, or at least instruct counsel to file an advocate’s brief.

4 Counsel’s brief on appeal is substandard and does not meet our requirements un der Turner / Finley . However, because of the clear confusion regarding counsel’s representation after the PCRA court denied Appellant’s petition, we must review the record as a whole. As such, we review the Turner / Finley letter filed by counsel in the lowe r court to determine if counsel complied with the requirements set forth infra.J

- S68038

- 16

- 5

-

Wrecks , 931 A.2d at 721 (citations omitted).
After review of the whole record, we are satisfied that counsel has
complied with the technical requirements of Turner and Finley . Therefore,
we will consider the substantive issues raised by Appellant.

“Our stan dard of review of a [] court order granting or denying relief
under the PCRA calls upon us to determine ‘whether the determination of the
PCRA court is supported by the evidence of record and is free of legal error.’”

Commonwealth v. Barndt , 74 A.3d 185, 192 (Pa. Super. 2013) (quoting

Commonwealth v. Garcia , 23 A.3d 1059, 1061 (Pa. Super. 2011)).

In his pro se PCRA petition, Appellant raises the following: (1) a

Batson 5 challenge; (2) a claim that the Commonwealth withheld key

information and evidence vi tal to his defense in violation of Brady ; 6 and (3)
a claim that the trial court abused its discretion and violated Appellant’s
constitutional rights by limiting Appellant’s ability to present a defense and
by showing bias and prejudice against Appellant. Appellant’s pro se PCRA
petition, 1/15/2015.
Notwithstanding Appellant’s substantive issues, we first determine
whether his PCRA petition was timely filed.
Generally, a PCRA petition must be filed within one year from the date a judgment becomes final. Th ere are three exceptions to

5 Batson v. Kentucky , 476 U.S. 79 (1986).

6 Brady v. Maryland , 373 U.S. 83 (1963).J

- S68038

- 16

- 6

-

this time requirement: (1) interference by government officials in the presentation of the claim; (2) newly discovered facts; and (3) an after

- recognized constitutional right. When a petitioner alleges and proves that one of the se exceptions is met, the petition will be considered timely. A PCRA petition invoking one of these exceptions must be filed within 60 days of the date the claims could have been presented. The timeliness requirements of the PCRA are jurisdictional in natu re and, accordingly, a PCRA court cannot hear untimely petitions.

Commonwealth v. Brandon , 51 A.3d 231, 233

- 34 (Pa. Super. 2012)
(citations and quotation marks omitted).
Instantly, Appellant was convicted on March 23, 2012 . On September
11, 2013 , this Court affirmed Appellant’s judgment of sentence, and
Appellant did not timely file a petition for allowance of appeal to our
Supreme Court. Thus, Appellant’s judgment of sentence became final on
October 11, 2013, after the expiration of time for Appellant to file that
petition. Therefore, Appellant had until October 11, 2014, to file timely a
PCRA petition. 7
The instant petition, filed on January 15, 2015 , is patently untimely.
The PCRA court had no jurisdiction to entertain Appellant’s petition unless h e pled and offered to prove one or more of the three statutory exceptions to

the time bar. See 42 Pa.C.S. § 9545(b)(1).

7 Appellant filed a petition to leave to file for allowance of appeal nunc pro tunc with our Supreme Court, which was subsequently denied without prejudice on January 15, 2014. Our high court advised Appellant he may seek the requested relief in a PCRA petition, which Appellant did not do.J

- S68038

- 16

- 7

-

Here, neither Appellant’s first nor third issue, related to his Batson
claim, 8 and the trial court’s alleged bias, meets a timeliness exception.
Appellant’s remaining issue, an alleged Brady violation, was previously
litigated on direct appeal. See Commonwealth v. Warner , 1219 WDA
2012 (Pa. Super. 2013) (unpublished memorandum). Furthermore, even if
Appellant now seeks to litigate ad ditional issues under the guise of Brady
that were not previously raised on direct appeal, he has failed to plead and
prove that his issue meets an exception and that the information which

formed the basis for his claim could not have been obtained earlier with the
exercise of due diligence.
Accordingly, the PCRA court lacked jurisdiction to decide the merits of
Appellant’s petition. Moreover, because we agree with Appellant’s counsel
that no relief is due, we grant his petition to withdraw and affirm the order
dismissing Appellant’s PCRA petition.
Petition to withdraw granted. Order affirmed.

8 Appellant had the opportunity to raise his Batson cla im on direct appeal. Indeed, when appealing his judgment of sentence, Appellant included this claim in his 1925 statement but later abandoned this issue. Commonwealth v. Warner , 1219 WDA 2012 (Pa. Super. 2013) (unpublished memorandum). See 42 Pa.S.C. § 9544(b) (“[A]n issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post[

- ]conviction proceeding.”).J

- S68038

- 16

- 8

-

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/12/2017