J-S17040-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

RICARDO ANTONIO TORRES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 1472 WDA 2022

Appeal from the PCRA Order Entered November 22, 2022

In the Court of Common Pleas of Erie County

Criminal Division at No(s): CP-25-CR-0000582-2019

BEFORE: LAZARUS, J., OLSON, J., and KING, J.

MEMORANDUM BY KING, J.: FILED: July 28, 2023

Appellant, Ricardo Antonio Torres, appeals from the order of the Erie 

County Court of Common Pleas, which dismissed as untimely his petition filed 

pursuant to the Post Conviction Relief Act (“PCRA”).1 PCRA counsel filed a 

petition to withdraw as counsel, and a Turner/Finley “no merit” brief with 

this Court.2 We affirm the PCRA court’s order and grant counsel’s petition to 

withdraw.

The relevant facts and procedural history of this case are as follows. On 

October 15, 2019, Appellant entered a negotiated guilty plea to robbery, 

conspiracy to commit arson, and firearms not to be carried without a license. 

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1 42 Pa.C.S.A. §§ 9541-9546.

2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988); 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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In exchange for the plea, the Commonwealth agreed to nolle prosequi the 

remaining thirty-seven counts. The conviction arose from Appellant’s acts of 

threatening the victim with a gun, telling the victim that Appellant would kill 

him and his dog, and tying up the victim and removing items from the victim’s 

house. In conspiracy with another person, Appellant then poured gasoline 

throughout the victim’s house and set it on fire. 

The court sentenced Appellant on December 5, 2019, to an aggregate 

term of 12 to 24 years of incarceration. Appellant did not file a post-sentence 

motion or direct appeal. He filed the instant PCRA petition on June 30, 2022, 

claiming that he did not start the fire or possess a firearm, and raising claims 

of ineffective assistance of counsel and an unlawfully induced plea. The PCRA 

court appointed counsel, who filed a petition to withdraw as counsel and “nomerit” letter on October 13, 2022, explaining that he believed the petition was 

untimely and no exception to the PCRA’s time-bar applied. 

The PCRA court denied the petition for leave to withdraw as counsel on 

October 13, 2022. The court issued notice of its intent to dismiss the petition 

without a hearing on October 24, 2022. On November 22, 2022, the PCRA 

court dismissed the PCRA petition as untimely. On December 19, 2022, 

Appellant filed a timely notice of appeal. The PCRA court subsequently ordered 

Appellant to file a statement of errors complained of on appeal per Pa.R.A.P. 

1925(b). On January 9, 2023, counsel filed a statement of intent to file a 

Turner/Finley brief. On March 21, 2023, counsel filed a petition for leave to 
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withdraw as counsel with this Court, together with a Turner/Finley “nomerit” brief. 

Preliminarily, before counsel can withdraw representation under the 

PCRA, the law requires counsel to satisfy the mandates of Turner/Finley. 

Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa.Super. 2003). 

Turner/Finley counsel must review the case zealously. 

Turner/Finley counsel must then submit a “no-merit” letter 

to the [PCRA] 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. 

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

Additionally, counsel must contemporaneously serve on the appellant copies 

of the “no-merit” letter or brief, the petition to withdraw, and a letter advising

the appellant that he has the immediate right to file a brief in this Court pro 

se or with new privately-retained counsel. Commonwealth v. Muzzy, 141 

A.3d 509 (Pa.Super. 2016). “Substantial compliance with these requirements 

will satisfy the criteria.” Karanicolas, supra at 947.

Instantly, appellate counsel submitted a Turner/Finley brief on appeal 

and a petition to withdraw as counsel. Both the brief and counsel’s petition 

to withdraw demonstrate he has made a conscientious examination of the 

record in this case and determined the appeal is wholly frivolous. Counsel 

notified Appellant of counsel’s request to withdraw, advised Appellant of his 

right to retain new counsel and/or raise any points he might deem worthy of 
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consideration, and furnished Appellant with a copy of the petition and the brief 

prepared for this appeal. Thus, counsel has substantially complied with the 

technical requirements of Turner/Finley. Karanicolas, supra at 947. 

Accordingly, we proceed with our independent assessment. See Turner, 

supra at 494-95, 544 A.2d at 928-29 (stating appellate court must conduct 

independent analysis and agree with counsel that appeal is frivolous).

Counsel raises the following issue on Appellant’s behalf:

A. Whether Appellant has stated a cognizable claim for relief 

under the PCRA given a patent untimely filing with no 

foundation for any statutory exception?

(Turner/Finley Brief at 2).3

As the timeliness of a PCRA petition is separate from the merits of the 

petitioner’s underlying claim, we must first determine whether the petition is 

timely filed. Commonwealth v. Brensinger, 218 A.3d 440, 447-48 

(Pa.Super. 2019) (en banc) (citing Commonwealth v. Stokes, 598 Pa. 574, 

959 A.2d 306 (2008)). The timeliness of a PCRA petition is a jurisdictional 

requisite. Commonwealth v. Hackett, 598 Pa. 350, 359, 956 A.2d 978, 983 

(2008), cert. denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009). 

A PCRA petition, including a second or subsequent petition, shall be filed 

within one year of the date the underlying judgment becomes final. 42 

Pa.C.S.A. § 9545(b)(1). A judgment is deemed final “at the conclusion of 

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3 Appellant has not responded to the Turner/Finley brief pro se or with newly 

retained private counsel.
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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.” 42 Pa.C.S.A. § 9545(b)(3). 

The three statutory exceptions to the timeliness provisions in the PCRA 

allow for very limited circumstances under which the late filing of a petition 

will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a petition 

must allege and the petitioner must prove:

(i) the failure to raise the claim previously was the result of

interference by government officials with the presentation

of the claim in violation of the Constitution or laws of this 

Commonwealth or the Constitution or laws of the United 

States;

(ii) the facts upon which the claim is predicated were 

unknown to the petitioner and could not have been 

ascertained by the exercise of due diligence; or

(iii) 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 period

provided in this section and has been held by that court to 

apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Additionally, a PCRA petitioner must

present his claimed exception within one year of the date the claim first could 

have been presented. 42 Pa.C.S.A. § 9545(b)(2). A PCRA petitioner bears 

the burden of pleading and proving the applicability of an exception to the 

PCRA time bar. Commonwealth v. Spotz, 642 Pa. 717, 723, 171 A.3d 675, 

678 (2017).

Instantly, Appellant’s judgment of sentence became final on January 4, 
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2020, after the time in which to file a direct appeal with this Court expired. 

See Pa.R.A.P. 903(c)(3). Appellant filed the current PCRA petition on June 

30, 2022, which is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1). 

Significantly, Appellant did not allege any exception to the PCRA time-bar in 

his pro se PCRA petition (see PCRA Petition, filed 6/30/22, at 3), and 

appointed counsel failed to discern any good faith basis to allege any such 

exception.

4 Therefore, Appellant has failed to meet his burden of proving 

applicability of a time bar exception. See Spotz, supra. Following our 

independent review of the record, we agree with counsel that the appeal is 

frivolous. See Turner, supra. Accordingly, we affirm the PCRA court’s order 

denying relief and grant counsel’s petition to withdraw.

Order affirmed; counsel’s petition to withdraw is granted. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/28/2023

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4 Appellant’s allegations of ineffectiveness do not satisfy any of the exceptions 

to the time-bar. See generally 42 Pa.C.S.A. § 9545(b)(4) (stating that for 

purposes of this subchapter, “government officials” shall not include defense 

counsel, whether appointed or retained); Commonwealth v. Bennett, 593 

Pa. 382, 930 A.2d 1264 (2007) (holding that allegation of counsel’s 

ineffectiveness cannot be invoked as “new fact” exception to time-bar, except 

where counsel abandons client on appeal).