J. S01029/17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

CHRIS KING, :

:

Appellant : No. 844 MDA 2016

Appeal from the PCRA Order April 18, 2016

In the Court of Common Pleas of Dauphin County

Criminal Division at No.: CP-22-CR-0003339-2000

BEFORE: GANTMAN, P.J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.: FILED APRIL 20, 2017

Appellant, Chris King, appeals from the April 18, 2016 Order entered in 

the Dauphin County Court of Common Pleas dismissing his second Petition 

filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

9546. Additionally, Appellant’s appointed counsel, Jennifer E. Tobias, 

Esquire, has filed a Petition to Withdraw and an accompanying no-merit 

letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), 

and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 

After careful review, we grant Attorney Tobias’s Petition to Withdraw and 

affirm.

On November 7, 2001, a jury convicted Appellant of Rape, Involuntary 

Deviate Sexual Intercourse, Aggravated Indecent Assault, and Corruption of 
J. S01029/17

- 2 -

Minors.1 The trial court imposed an aggregate term of 103⁄4 to 22 years’ 

incarceration.2 This Court affirmed Appellant’s Judgment of Sentence on 

November 10, 2003. Commonwealth v. C.K., 841 A.2d 575 (Pa. Super. 

filed November 10, 2003) (unpublished memorandum), vacated and 

remanded, 850 A.2d 617 (Pa. filed May 4, 2004). Our Supreme Court 

granted allowance of appeal and remanded the matter to this Court to 

determine whether the trial court erred in finding that Appellant was an SVP. 

Commonwealth v. C.K., 850 A.2d 617 (Pa. filed May 4, 2004).

On remand, we again affirmed the trial court’s determination on 

September 17, 2004; our Supreme Court denied allowance of appeal on 

March 8, 2005. Commonwealth v. C.K., 863 A.2d 1225 (Pa. Super. filed 

September 17, 2004) (unpublished memorandum), appeal denied, 870 A.2d 

319 (Pa. filed March 8, 2005). Appellant did not seek review by the U.S. 

Supreme Court. Appellant’s Judgment of Sentence, therefore, did not 

become final until June 6, 2005. See 42 Pa.C.S. § 9545(b)(3); U.S. Sup. Ct. 

R. 13.

On November 14, 2005, Appellant filed his first pro se PCRA Petition. 

The PCRA court eventually denied PCRA relief on January 15, 2009; this 

 

1 18 Pa.C.S. § 3121; 18 Pa.C.S. § 3123; 18 Pa.C.S. § 3125; and 18 Pa.C.S. 

§ 6301, respectively.

2

Following a hearing, the trial court determined that Appellant was a 

Sexually Violent Predator as defined in Pennsylvania’s Megan’s Law. See 42 

Pa.C.S. § 9799.24.
J. S01029/17

- 3 -

court affirmed on December 1, 2009, and our Supreme Court denied 

allowance of appeal. Commonwealth v. King, 990 A.2d 47 (Pa. Super. 

filed December 1, 2009) (unpublished memorandum), appeal denied, 9 A.3d 

628 (Pa. filed August 11, 2010).

On October 17, 2012, Appellant filed the instant pro se PCRA Petition, 

his second, alleging that the victim, his then-minor daughter, had recanted 

her trial testimony. On September 5, 2013, the PCRA court appointed 

Attorney Tobias as counsel. Attorney Tobias filed an Amended PCRA Petition 

on October 2, 2013, and again on March 24, 2014.

On October 22, 2015, the PCRA court held an evidentiary hearing 

where the victim disavowed her written recantation letter and affirmed the

truth and veracity of her inculpatory testimony at Appellant’s trial. N.T. 

PCRA Hearing, 10/22/15, at 3-17. The victim testified about the 

circumstances under which she provided the recantation to her thenstepmother (Appellant’s then-wife), her motivation to sign the documents to 

make “everybody happy,” and the fact that Appellant’s then-wife, who 

approached her on several occasions to recant, wrote the affidavit she 

eventually signed. Id.
J. S01029/17

- 4 -

On April 18, 2016, the PCRA court dismissed Appellant’s Petition. On 

May 16, 2016, Appellant filed a Notice of Appeal. Both Appellant and the 

PCRA court complied with Pa.R.A.P. 1925.3

Appellant presents two issues for our review:

1. Whether the witness’s numerous recantations nullify the 

Appellant’s conviction based on the “reasonable doubt” 

standard?

2. Did the PCRA court err when it denied the Appellant’s PCRA 

Petition and concluded that the witness’s accusations were true 

despite the lengthy record of falsehoods, even though the PCRA 

court did not actually state that it had so concluded?

Appellant’s Brief at 5.

On October 18, 2016, Attorney Tobias filed a Turner/Finley no-merit 

letter in the form of an Appellant’s Brief, noting Appellant’s desire to 

challenge the PCRA court’s decision regarding the victim’s purported 

recantation. Counsel, however, concluded that there were no non-frivolous 

issues to be raised on appeal. On October 18, 2016, Attorney Tobias also 

filed with this Court a Petition to Withdraw. Appellant did not file a 

response.

Before we consider Appellant’s arguments, we must review Attorney 

Tobias’s request to withdraw from representation.4 Pursuant to 

 

3 Attorney Tobias complied by filing a Statement of Intent to File an 

Anders/McClendon Brief pursuant to Pa.R.A.P. 1925(c)(4).

4 We review Attorney Tobias’s Turner/Finley no-merit letter to Appellant 

together with her Petition to Withdraw.
J. S01029/17

- 5 -

Turner/Finley, independent review of the record by competent counsel is 

required before withdrawal on collateral appeal is permitted. 

Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009). Counsel is 

then required to submit a “no merit” letter (1) detailing the nature and 

extent of his or her review; (2) listing each issue the petitioner wished to 

have reviewed; and (3) providing an explanation of why the petitioner’s 

issues were meritless. Id. The court then conducts its own independent 

review of the record to determine if the Petition is meritless. Id. 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.” 

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

omitted).

Our review of the record discloses that Attorney Tobias has complied 

with each of the above requirements. In addition, Attorney Tobias sent 

Appellant copies of the Turner/Finley no-merit letter and her Petition to 

Withdraw, and advised him of his rights in lieu of representation in the event 

that the court granted Attorney Tobias permission to withdraw. See

Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011). Since 

Attorney Tobias has complied with the Turner/Finley requirements, we now 

proceed with our independent review of the record and the merits of 

Appellant’s claims.
J. S01029/17

- 6 -

We review the denial of a PCRA Petition to determine whether the 

record supports the PCRA court’s findings and whether its Order is otherwise 

free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 

2014). Before addressing the merits of Appellant’s claims, we must first 

determine whether we have jurisdiction to entertain the underlying PCRA 

Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008) 

(explaining that the timeliness of a PCRA Petition is a jurisdictional 

requisite).

Under the PCRA, any Petition “including a second or subsequent 

petition, shall be filed within one year of the date the judgment becomes 

final[.]” 42 Pa.C.S. § 9545(b)(1). A Judgment of Sentence 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.” 42 Pa.C.S. § 

9545(b)(3). The PCRA’s timeliness requirements are jurisdictional in nature, 

and a court may not address the merits of the issues raised if the PCRA 

petition was not timely filed. Commonwealth v. Albrecht, 994 A.2d 1091, 

1093 (Pa. 2010).

Here, Appellant’s Judgment of Sentence became final on June 6, 2005, 

upon expiration of the time to file a Petition for Writ of Certiorari with the 

United States Supreme Court. See 42 Pa.C.S. § 9545(b)(3); U.S. Sup. Ct. 

R. 13. In order to be timely, Appellant needed to submit his PCRA Petition 
J. S01029/17

- 7 -

by June 6, 2006. Id. Appellant filed this PCRA Petition on October 17, 

2012, more than seven years after his Judgment of Sentence became final. 

Appellant’s Petition is, thus, facially untimely.

Pennsylvania courts may consider an untimely PCRA Petition, however, 

if the appellant pleads and proves one of the three exceptions set forth in 42 

Pa.C.S. § 9545(b), which provides the following:

(b) Time for filing petition.

(1) Any petition under this subchapter, including a second or 

subsequent petition, shall be filed within one year of the date the 

judgment 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 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.

(2) Any petition invoking an exception provided in paragraph (1) 

shall be filed within 60 days of the date the claim could have 

been presented.

42 Pa.C.S. § 9545(b)(1)-(2). See, e.g., Commonwealth v. Lark, 746 

A.2d 585, 588 (Pa. 2000) (reviewing specific facts that demonstrated the 

claim had been timely raised within 60-day timeframe).
J. S01029/17

- 8 -

Appellant attempts to invoke the timeliness exception under Section 

9545(b)(1)(ii) in presenting the victim’s purported recantation. Appellant’s 

Brief at 13. Appellant avers that the victim “stated that she lied during trial” 

in an affidavit and letter dated September 16, 2007, and that he filed a 

Motion for a New Trial on October 31, 2007. Id. Appellant testified that he 

first learned about the victim’s recantation from his then-wife approximately 

two weeks before he filed that Motion for a New Trial. N.T. PCRA Hearing, 

8/25/14, at 30-31.

The first PCRA court that considered Appellant’s first PCRA Petition 

concluded that Appellant’s October 31, 2007 Motion for a New Trial 

presented an entirely new PCRA claim. Id. at 7, 54. Since Appellant’s 

appeal from the denial of his first PCRA Petition was pending in the Superior 

Court at the time, the PCRA court concluded it did not and would not have 

jurisdiction until Appellant’s first PCRA Petition was resolved and Appellant 

filed a new PCRA Petition presenting this claim. Id. As a result, the PCRA 

court dismissed the Motion without prejudice on November 6, 2007.

Appellant’s first PCRA Petition concluded on August 11, 2010, when 

our Supreme Court denied allowance of appeal. Appellant had 60 days, or 

until October 11, 2010, to file a second PCRA Petition presenting his victim 

recantation claim.5 Appellant did not file his second PCRA Petition 

presenting this claim until October 17, 2012, more than two years after he 

 

5 October 10, 2010, was a Sunday. See 1 Pa.C.S. § 1908.
J. S01029/17

- 9 -

could have presented this claim to the PCRA court.6 Accordingly, Appellant 

has failed to plead and prove that he filed his untimely PCRA Petition “within 

60 days of the date the claim could have been presented.” 42 Pa.C.S. § 

9545(b)(2). Since Appellant is unable to satisfy the 60-day rule, he is 

unable to satisfy any of the three timeliness exceptions.7 The PCRA court, 

therefore, properly dismissed Appellant’s second PCRA Petition as untimely.

The record supports the PCRA court’s findings and its Order is 

otherwise free of legal error. Accordingly, we affirm.

Order affirmed. Petition to Withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/20/2017

 

6 When questioned about this delay in filing his second PCRA Petition, 

Appellant stated that he prioritized a dispute over attorney’s fees instead 

and that he sought to use the letter to “prevent a retrial.” N.T. PCRA 

Hearing, 8/25/14, at 61-70.

7 Moreover, even assuming Appellant can meet a timeliness exception, his 

claim fails because the victim disavowed her purported recantation letter 

and affidavit at the evidentiary hearing and reaffirmed her original trial 

testimony, and the trial court credited her disavowal rather than the 

purported recantation.