J-A06013-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ELROY WISE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 426 WDA 2023

Appeal from the PCRA Order Entered February 22, 2023

In the Court of Common Pleas of Blair County Criminal Division at No(s): 

CP-07-CR-0000440-2020

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and BECK, J.

MEMORANDUM BY LAZARUS, P.J.: FILED: MARCH 18, 2024

Elroy Wise appeals1from the order, entered in the Court of Common 

Pleas of Blair County, dismissing his petition filed pursuant to the Post 

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1 Wise appeals from the February 22, 2023 order dismissing his PCRA petition. 

His pro se notice of appeal was dated March 17, 2023, but it was not filed until

March 31, 2023. Pennsylvania Rule of Appellate Procedure 903(a) requires 

appellants to file notices of appeal within thirty days after the entry of the 

order from which the appeal is taken. However, Pa.R.A.P. 121(f), titled “Date 

of filing for incarcerated persons,” provides:

A pro se filing submitted by a person incarcerated in a correctional

facility is deemed filed as of the date of the prison postmark or

the date the filing was delivered to the prison authorities for

purposes of mailing as documented by a properly executed

prisoner cash slip or other reasonably verifiable evidence.

Pa.R.A.P. 121(f). See also Commonwealth v. Jones, 700 A.2d 423 (Pa. 

1997) (pro se prisoners’ appeals deemed filed as of the date they deliver them 

to prison authorities for mailing).

(Footnote Continued Next Page)
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Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Counsel has filed 

an Anders2 brief and an application to withdraw as counsel. Upon careful 

review, we affirm the order of the PCRA court and grant counsel’s application 

to withdraw.

On November 5, 2021, Wise entered a negotiated plea of guilty to 

numerous drug-trafficking-related crimes. That same day, the trial court 

sentenced him to the agreed-upon term of 20 to 40 years’ incarceration and 

found him eligible for the Recidivism Risk Reduction Incentive Program. Wise 

filed neither post-sentence motions nor a direct appeal.

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As Wise’s notice of appeal was facially untimely and no documentation was 

attached to establish the date the notice of appeal was delivered to prison 

authorities, this Court entered an order on May 16, 2023, directing counsel to 

show cause as to why the appeal should not be quashed as untimely. Counsel 

filed a response on June 15, 2023, attached to which was an affidavit from 

Wise indicating that he delivered his notice of appeal to prison authorities on 

March 17, 2023, but could not provide a copy of the cash slip because he used 

a “free allotted without cost pre-paid postage” envelope.

Applying Rule 121(f) here, we conclude that Wise’s affidavit constitutes 

“reasonably verifiable evidence” of the date his notice of appeal was delivered 

to the prison authorities for purposes of mailing. As this was within thirty days 

of the issuance of the order dismissing his PCRA petition, we deem Wise’s 

notice of appeal timely filed.

2 Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), 

apparently in the mistaken belief that an Anders brief is required where 

counsel seeks to withdraw on appeal from the denial of PCRA relief. A 

Turner/Finley “no-merit” letter, however, is the appropriate filing. See 

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

Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc ). Because an Anders brief 

provides greater protection to a defendant, this Court may accept an Anders

brief in lieu of a Turner/Finley letter. Commonwealth v. Fusselman, 866 

A.2d 1109, 1111 n.3 (Pa. Super. 2004).
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On October 3, 2022, Wise filed a timely, pro se, PCRA petition. The 

PCRA court appointed counsel, granting him 60 days to file an amended 

petition. After speaking with Wise, counsel did not file an amended petition, 

as the issue Wise wished to raise was included in his pro se petition.3 

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3 At the PCRA hearing, the PCRA court and PCRA counsel engaged in the 

following exchange:

[THE COURT: T]his is the date and time that was set aside to 

litigate the [PCRA] proceeding that was filed by the Defendant and 

then updated[] by yourself[,] Attorney Puskar[,] correct?

ATTORNEY PUSKAR: No, your Honor[,] I did not file any 

amendments.

JUDGE BERNARD: Oh, you did not.

ATTORNEY PUSKAR: No.

JUDGE BERNARD: Okay.

ATTORNEY PUSKAR: The only witness I have[,] Your Honor[,] is 

Mr. Wise. But to set the stage a little bit, Your Honor conducted 

admittedly a very extensive colloquy on this case prior to

sentencing. But there were [] discussions about the forms. There 

was a lot of discussions about the sentence. I am going to have 

Mr. Wise testify to what he believed [to be the meaning of the 

excerpt from his sentencing order] found on page five of his 

petition. That is why there is no amendment. Mr. Wise agrees 

that is the only issue he wants to raise.

JUDGE BERNARD: Okay, and what is the issue that he wants to 

raise? If you had to frame it, what would you frame it as?

ATTORNEY PUSKAR: [ “W]ill you please take 18 months off of 

my sentence.[”]

JUDGE BERNARD: Oh, and what is the bas[i]s for the request for 

18 months?

(Footnote Continued Next Page)
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Specifically, Wise claimed that his plea was not knowing, voluntary, and 

intelligent because it was induced with a promise that his sentence would run 

concurrently with any back time subsequently imposed by the Parole Board as 

a result of his new conviction. He asserted that plea counsel was ineffective 

“for failing to object when [Wise] was induced to plead guilty on an 

unenforceable promise.” Pro Se PCRA Petition, 10/3/22, at 6.

On January 17, 2023, the court held a hearing, at which Wise and his 

plea counsel, Ronald McGlaughlin, Esquire, testified. Thereafter, on February 

22, 2023, the PCRA court issued an order denying relief. Wise filed a timely 

notice of appeal, after which the PCRA court appointed current counsel, Mark 

Zearfus, Esquire, to represent him. In lieu of a court-ordered Pa.R.A.P. 

1925(b) concise statement of errors complained of on appeal, Attorney 

Zearfus submitted a Rule 1925(c)(4) statement of intent to file an Anders

brief. 

Prior to reviewing the merits of Wise’s claim, we must address counsel’s 

motion to withdraw. Where counsel seeks to withdraw from PCRA 

representation, our Supreme Court has stated that independent review of the 

record by competent counsel is required before withdrawal is permitted. 

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

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ATTORNEY PUSKAR: That [] he was under the impression—well[,]

I will allow him to explain. But he was under the impression that 

it was to be run concurrently [to his parole back time].

N.T. PCRA Hearing, 1/17/23, at 5-6.
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independent review requires proof of: (1) a “no-merit” letter by PCRA counsel 

detailing the nature and extent of his review; (2) a “no-merit” letter by PCRA 

counsel listing each issue the petitioner wished to have reviewed; (3) PCRA 

counsel’s explanation, in the “no-merit” letter, as to why the petitioner’s issues 

are meritless; (4) independent review of the record by the PCRA or appellate 

court; and (5) agreement by the PCRA or appellate court that the petition was 

meritless. Id.

In Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2006),4this 

Court imposed an additional requirement for counsel seeking to withdraw from 

collateral proceedings:

PCRA counsel who seeks to withdraw must 

contemporaneously serve a copy on the petitioner of 

counsel’s application to withdraw as counsel, and must 

supply to the petitioner both a copy of the “no-merit” 

letter and a statement advising the petitioner that . . . he 

or she has the right to proceed pro se or with the 

assistance of privately retained counsel.

Id. at 614. See also Commonwealth v. Muzzy, 141 A.3d 509, 512 (Pa. 

Super. 2016) (clarifying that “in an appeal from the denial of a PCRA petition, 

if counsel files a petition to withdraw as appellate counsel in this Court, the 

letter to the client, inter alia, shall inform the PCRA petitioner that upon the 

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4 This Court’s holding in Friend was subsequently overruled on other grounds 

by the Supreme Court in Pitts, supra. However, the additional requirement 

that counsel provide copies of the relevant documentation to the petitioner 

remains intact. Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 

2011). 
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filing of counsel’s petition to withdraw, the petitioner-appellant has the 

immediate right to proceed in the appeal pro se or through privately-retained 

counsel.”) (emphasis in original).

Here, counsel has substantially complied with the Turner/Finley and 

Friend requirements. Counsel has detailed the nature and extent of his 

review, served a copy of his application to withdraw and brief upon Wise and 

informed him of his right to proceed pro se or with privately retained counsel,5

raised Wise’s issues in the form of a brief addressed to this Court, and 

explained why those claims are meritless. Counsel having substantially 

satisfied the procedural requirements for withdrawal, we now turn to an 

independent review of the record to determine whether his claim merits relief. 

This Court’s standard of review regarding an order dismissing a petition 

under the PCRA is whether the determination of the PCRA court is supported 

by evidence of record and is free of legal error. Commonwealth v. Burkett, 

5 A.3d 1260, 1267 (Pa. Super. 2010). In evaluating a PCRA court’s decision, 

our scope of review is limited to the findings of the PCRA court and the 

evidence of record, viewed in the light most favorable to the prevailing party 

at the trial level. Id. The PCRA court’s credibility determinations are binding 

on this Court where the record supports those determinations. Widgins, 29 

A.3d at 820.

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5 Wise has not raised any additional issues, either pro se or through private 

counsel. 
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As stated above, Wise asserts that his plea was not knowing, voluntary,

and intelligent because he was induced by counsel to enter a plea with an 

illusory promise that his back time would be ordered to run concurrently with 

his sentence in the instant case. He is entitled to no relief. 

For purposes of the PCRA, “an issue is waived if the petitioner could 

have raised it but failed to do so before trial, at trial, on appeal[,] or in a prior 

state postconviction proceeding.” 42 Pa.C.S.A. § 9544(b). Where a petitioner 

fails to challenge the voluntariness of his plea on direct appeal, any claims 

that counsel was ineffective for coercing him to enter a plea are waived for 

purposes of the PCRA. See Commonwealth v. Johnson, 179 A.3d 1153, 

1159 (Pa. Super. 2018). Here, Wise did not file a direct appeal challenging 

the voluntariness of his plea. Accordingly, he has waived all claims related 

thereto on collateral review. 

Even if not waived, his claim is meritless. Wise testified as follows at 

his PCRA hearing:

Q: Did Attorney McGlaughlin ever tell you that part of the plea 

agreement was a promise from the Commonwealth or from Judge 

Bernard that your 20-40 year sentence would [run] concurrent to 

a future parole back[ hit].

A: No.

Q: And do you remember when you entered your guilty plea at 

this case, Judge Bernard asking you a number of questions and 

you answering them?

A: Yeah, yes.

Q: And nowhere in that conversation did [] the [c]ourt state that 

the plea agreement included a promise that the sentence of 20-
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40 years at docket 440[] would run concurrent to future parole 

that you would receive; correct?

A: Correct.

Q: And do you remember completing a written guilty plea 

colloquy form with Attorney McGlaughlin before you entered your 

guilty plea?

A: Yes.

* * *

Q: Okay. Would you agree then, that nowhere in that form does 

it state that the plea agreement included a promise that your 20-

40[-]year sentence would run concurrent with any future parole

hit you would receive.

A: No, it didn’t.

Q: And do you remember during your guilty plea in sentencing 

the attorney for the Commonwealth stating that there was no 

promise or nothing that the Commonwealth could do, or the 

[c]ourt could do[,] to control what happened with your parole hit 

sentence?

A: Uh, yes something like that. I am pretty sure I remember 

something like that.

Q: Okay. So[,] as I understand it[,] Mr. Wise, then you are 

agreeing that there wasn’t any promise or any plea agreement 

that your 20-40[-]year sentence would run concurrent with your 

parole hit. You are just asking[,] for lack of a better term, sort as 

of a favor or of—act of grace or some sort of possibility of Judge 

Bernard could run that [] 20-40[-]year sentence concurrent with 

that parole hit?

A: Uh, yes. I guess, I guess—I hear, I guess that is what I am 

doing. 

* * *

Q: And I know that you have quoted from [your sentencing order]

in your PCRA petition. But would you agree with me that, what 

Judge Bernard said was, [“t]he [c]ourt also notes that the 

Commonwealth, this date, is suggesting that any probation/parole 

sentence that the Defendant were to receive as a result of his 

convictions herein, should run concurrent to his sentence 
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particularly in light of the length of his sentence[.”] In other 

words—

A: Yeah.

Q: [T]he Court was just indicating that the Commonwealth wasn’t 

opposing the sentences running concurrently if that was possible. 

Is that a fair summary?

A: Yes, yeah I understand it now. Uh, yes.

N.T. PCRA Hearing, 1/17/23, at 12-15.

Wise’s plea counsel, Attorney McGlaughlin, also confirmed that Wise was 

not promised that his parole revocation sentence would run concurrently to 

his sentence in the instant case:

Q: Did the plea agreement in case 440 of 2020 include a promise 

that the 20-40[-]year sentence would run concurrent to a future 

parole back hit?

A: No, although I would say that I discussed this matter with []

Mr. [Madeira] from the Attorney General’s Office and was able—

actually to convince him or he agreed to put on record the 

Commonwealth[’]s position as it—I think referenced any kind of

subsequent parole hit. I knew that Mr. Wise was facing a potential 

parole hit. He and I had discussions pertaining to that. I 

discussed with Mr. [Madeira] whether he would be willing to place 

on the record in a non[-]binding fashion but at least on the record 

so that parole can see the Commonwealth[’]s position. That

position being, that the Commonwealth had no objection to any 

parole hit being run concurrent to the [] 20-40[-]year sentence 

that we have negotiated. And Mr. [Madeira] did put that on, I 

reviewed the Sentencing Order and the transcript of that. And I 

think it is pretty clear that Mr. [Madeira] said, he couldn’t make

any specific promises but basically the position of the 

Commonwealth was, just what I indicated[: t]hat the 

Commonwealth would be in agreement that any [parole 

revocation sentence] would run concurrent . . . to the parole 

board.

Id. at 21-22.
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In light of the foregoing, the PCRA court did not err in dismissing Wise’s 

PCRA petition.

Order affirmed. Application to withdraw granted. Jurisdiction 

relinquished.

FILED: 3/18/2024