J-S67008-14 

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37 

*Former Justice specially assigned to the Superior Court. 

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF 

: PENNSYLVANIA 

 Appellee :

:

 v. :

:

JAMES H. COBBS, :

:

 Appellant : No. 13 WDA 2014 

Appeal from the PCRA Order December 23, 2013, 

Court of Common Pleas, Allegheny County, 

Criminal Division at No. CP-02-CR-0008549-1970 

BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ. 

MEMORANDUM BY DONOHUE, J.: FILED NOVEMBER 17, 2014 

Appellant, James H. Cobbs (“Cobbs”), appeals from the order denying 

his petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 

9541-46 (the “PCRA”). Also before this Court is appointed counsel’s motion 

to withdraw as counsel and an accompanying brief filed pursuant to 

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

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). For the following 

reasons, we affirm the PCRA court’s order denying the petition and grant 

counsel’s request to withdraw. 

In its written opinion, the PCRA court provided the following concise 

summary of the relevant procedural history: 

This matter arises out of a pro se PCRA petition filed 

by [Cobbs] on August 28, 2012. [Cobbs] alleged 

that he was currently serving a mandatory sentence 

of life without the possibility of parole for his 
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conviction of first-degree murder on July 16, 1971. 

[Cobbs] further alleged that he was under the age of 

18 at the time of the offense. In his petition [Cobbs] 

alleges that his mandatory sentence was 

unconstitutional under the 8th Amendment of the 

United States Constitution based on the United 

States Supreme Court’s decision in Miller v. 

Alabama, 132 S.Ct. 2455 (2012) which was decided 

on June 25, 2012. 

On September 6, 2012 counsel was appointed to 

represent [Cobbs]. On September 19, 2012 a 

Motion to Stay the PCRA proceedings was filed 

pending the disposition of appeals pending before 

the Pennsylvania Supreme Court in Commonwealth 

v. Batts, 66 A.3d 286 (Pa. 2013) and 

Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 

2013). On September 25, 2012 an order was 

entered staying the proceedings pending the 

disposition of Batts and Cunningham. On March 

26, 2013, the Pennsylvania Supreme Court decided 

Batts. On October 30, 2013, the Court decided 

Cunningham. On November 20, 2013 an order was 

entered placing [Cobbs] on notice of the [PCRA 

court’s] intent to dismiss his petition without a 

hearing based on the Supreme Court’s decision in 

Cunningham which held that the ruling in Miller

was not retroactive. On December 9, 2013, [Cobbs] 

filed a response to the Notice of Intent to Dismiss

Order[1] and on December 23, 2013 an Order was 

entered dismissing his PCRA Petition. On December 

30, 2013, [Cobbs] filed the instant appeal. 

Trial Court Opinion, 7/10/2014, at 2-3 (footnotes omitted). On August 13, 

2014, appointed counsel filed an Application for Leave to Withdraw as 

counsel under Turner and Finley, attaching a “no merit” appellate brief and 

 

1

 Cobbs also included an amended PCRA petition with this filing. 
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a letter to Cobbs advising him, inter alia, of her intention to withdraw from 

representation. 

Before considering the issues appointed counsel asserts Cobbs wants 

to raise on appeal, we first must consider whether appointed counsel has 

complied with the requirements for counsel to withdraw pursuant to Turner

and Finley. We previously explained this procedure as follows. 

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 review 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 nomerit 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 
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counsel’s request and grant relief, or at least instruct 

counsel to file an advocate’s brief. 

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007). 

Instantly, appointed counsel’s Application for Leave to Withdraw as 

Counsel contains her representations that she has examined the record, case 

law, relevant statutes, and correspondence from Cobbs, and that she has 

advised Cobbs in a letter of her legal conclusion that his issues lack any 

merit. Application, 8/13/2014, at ¶¶ 13-14. Appointed counsel mailed 

copies of the Application for Leave to Withdraw as Counsel and the “no 

merit” brief filed with this Court as attachments to her letter to Cobbs, in 

which she advised him of his right to proceed pro se or through privatelyretained counsel. For these reasons, we conclude that appointed counsel 

has substantially complied with the mandates of Turner and Finley. 

We thus proceed with our own review of the merits of Cobbs’ claims on 

appeal, which are set forth in the “no merit” brief as follows: 

1. Whether the PCRA court erred in denying PCRA relief 

on the basis that the PCRA proceeding was untimely?

2. Whether the United States Supreme Court held that 

the rule in Miller v. Alabama, by applying said rule 

in the companion case of Jackson v. Hobbs, applies 

retroactively to cases where direct review had 

concluded prior to the announcement of said rule in

Miller v. Alabama? 

3. Whether Commonwealth v. Batts, --- Pa. ---, 66 

A.3d 286 (2013) recognized a rule of constitutional

law under the Pennsylvania Constitution similar to 

that in Miller v. Alabama and does the rule in 
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Batts apply retroactively to cases where direct 

review concluded prior to the announcement of said 

rule in Batts? 

Brief for Appellant at 3. When we review the propriety of a PCRA court’s 

order, we are limited to determining whether the court’s findings are 

supported by the record and whether the order in question is free of legal 

error. Commonwealth v. Grant, 992 A.2d 152, 156 (Pa. Super. 2010). 

This Court will not disturb the PCRA court’s findings if there is any support 

for the findings in the certified record. Id. 

This Court recently addressed Cobbs’ first two issues in 

Commonwealth v. Seskey, 86 A.3d 237 (Pa. Super. 2014), in which we 

stated as follows: 

[T]he facial untimeliness of Appellant's petition 

renders this Court (indeed, any court) without 

jurisdiction to review the substantive claims that 

Appellant raises ... unless one of the three exceptions 

to the PCRA's time-bar applies. The only potentially 

applicable exception is subsection 9545(b)(1)(iii),

the newly-recognized, and retroactively-applied, 

constitutional right exception predicated upon the 

Supreme Court's decision in Miller. 

Subsection (iii) of Section 9545[(b)(1)] 

has two requirements. First, it provides 

that the right asserted is a constitutional 

right that was recognized by the 

Supreme Court of the United States or 

[the Supreme Court of Pennsylvania] 

after the time provided in this section. 

Second, it provides that the right ‘has 

been held’ by ‘that court’ to apply 

retroactively. Thus, a petitioner must 

prove that there is a ‘new’ constitutional 
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right and that the right ‘has been held’ 

by that court to apply retroactively. The 

language ‘has been held’ is in the past 

tense. These words mean that the action 

has already occurred, i.e., ‘that court’ 

has already held the new constitutional 

right to be retroactive to cases on 

collateral review. By employing the past 

tense in writing this provision, the 

legislature clearly intended that the right 

was already recognized at the time the 

petition was filed. 

Commonwealth v. Copenhefer, 596 Pa. 104, 941 

A.2d 646, 649–50 (2007) (quoting Commonwealth 

v. Abdul–Salaam, 571 Pa. 219, 812 A.2d 497, 501 

(2002)). 

Recently, in Cunningham, our Supreme Court held 

that the constitutional right announced by the United 

States Supreme Court in Miller does not apply 

retroactively. 81 A.3d at 10. Consequently, 

Appellant cannot rely upon Miller or subsection 

9545(b)(iii) to establish jurisdiction over his untimely 

PCRA petition in any Pennsylvania court. Hence, we

lack jurisdiction to review the merits of Appellant's 

issues 

Id. at 242-43. 

Cobbs attempts to circumvent the effect the ruling in Cunningham

has upon our jurisdiction by arguing that the companion case to Miller

(Jackson v. Hobbs) should have led to a different result in Cunningham. 

This argument is likewise unavailing. As this Court made clear in Seskey, 

based upon our Supreme Court’s decision in Cunningham, which this Court 

is bound to follow, along with the statutory time limits for filing petitions for 
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relief under the PCRA, we lack any jurisdiction to consider other substantive 

arguments on their merits: 

While these arguments someday may require 

consideration by our courts, today cannot be that 

day. Before a court may address Appellant's 

arguments, or similar contentions, that court must 

have jurisdiction. We cannot manufacture 

jurisdiction based upon the substantive claims raised 

by the parties. Presently, we are confined by the 

express terms of subsection 9545(b)(1)(iii) and our

Supreme Court's decision in Cunningham. 

Combined, those two elements require us to 

conclude that we lack jurisdiction. No substantive

claim can overcome this conclusion. 

Id. at 243. 

With respect to Cobbs’ third issue, in Batts our Supreme Court held 

that the appropriate remedy on direct appeal for a Miller-type constitutional 

violation is to remand the case to the trial court for re-sentencing in 

accordance with the dictates of Miller. Batts, 66 A.3d at 293-95. Batts

did not, however, address the retroactivity of the Miller decision in 

connection with subsection 9545(b)(1)(iii) of the PCRA. As indicated 

hereinabove, our Supreme Court decided that issue in Cunningham. 

Moreover, and more importantly, Batts did not create or identify any new 

constitutional right that would provide Cobbs with a basis for filing a PCRA 

claim beyond the one-year time bar based pursuant to the exception in 

subsection 9545(b)(1)(iii). As such, Batts provides Cobbs with no 
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meritorious argument that his PCRA petition was timely or that this Court 

has any jurisdiction to consider his substantive claims. 

For these reasons, we agree with appointed counsel that all of Cobbs’ 

issues are without merit. We therefore grant appointed counsel’s petition to 

withdraw and deny any relief to Cobbs. 

Order affirmed. Motion to withdraw granted. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 11/17/2014