J-S31039-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TYRONE DAVIS 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2234 EDA 2022

Appeal from the PCRA Order Entered August 28, 2017

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0229071-1984

BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 11, 2023

Tyrone Davis appeals from the order dismissing his sixth Post Conviction 

Relief Act (“PCRA”) petition as untimely. See 42 Pa.C.S.A. §§ 9541-9546. We 

affirm.

Davis stood trial for the first-degree murder of Anthony Bolden.

1 The 

Commonwealth argued that Davis was guilty under a theory of accomplice 

liability, regardless of whether it was Davis or his co-defendant who had fired 

the shots that killed Bolden. The jury found Davis guilty, and the court 

sentenced him to life imprisonment. This Court affirmed Davis’s judgment of 

sentence, and the Supreme Court denied Davis’s petition for allowance of 

appeal on September 25, 1987.

____________________________________________

1 See 18 Pa.C.S.A. § 2502. Davis was also charged with possessing an 

instrument of crime. See id. at § 907.
J-S31039-23

- 2 -

Davis filed his first PCRA petition in 1988. The court appointed counsel,

who moved to withdraw and filed a no-merit letter. See Commonwealth v. 

Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 

(Pa.Super. 1988) (en banc). The court dismissed the petition and granted 

counsel leave to withdraw. Davis filed an untimely pro se notice of appeal, 

which this Court dismissed. 

Davis filed his second, third, fourth, and fifth PCRA petitions, pro se, in 

1996, 2006, 2007, and 2012. No relief was granted. 

Davis filed a sixth PCRA petition pro se in May 2017. He alleged

Commonwealth v. Burton, 158 A.2d 618 (Pa. 2017), had recognized a new, 

retroactive constitutional right that applied to his case.

2 The PCRA court issued 

____________________________________________

2

In his sixth petition, Davis alleged that Burton expressly overruled 

Commonwealth v. Chester, 895 A.2d 520 (Pa. 2006), upon which he 

claimed this Court had relied when affirming the dismissal of his fifth PCRA 

petition as untimely. Davis’s fifth petition had sought reinstatement of his right 

to appeal the dismissal of his fourth petition, of which Davis claimed he had 

not received notice. Our Court affirmed the dismissal of Davis’s fifth petition 

because the docket sheet showing the dismissal of Davis’s fourth petition was 

a matter of public record, and Davis could have discovered the dismissal 

through the exercise of due diligence. However, we also stated that even if 

Davis’s fifth petition had been timely on the basis that Davis had not received 

notice of the dismissal of his fourth petition, reinstating Davis’s right to appeal 

the dismissal of his fourth petition would have not led to relief, because his 

fourth petition, based on Commonwealth v. Bennett, 930 A.2d 1264 (Pa.

2007), had been untimely as well. See Commonwealth v. Davis, No. 427 

EDA 2013, 2014 WL 10986799, unpublished mem. at *4 (Pa.Super. filed Feb. 

18, 2014).
J-S31039-23

- 3 -

notice of its intent to dismiss the petition without a hearing,3 and, after Davis 

responded, dismissed the petition in August 2017 as untimely. 

Davis filed a seventh PCRA petition, pro se, in March 2018. His seventh 

petition asserted that he had never received a copy of the August 2017 order 

dismissing his sixth petition and that he had been unaware that it had been 

dismissed until the clerk of courts responded to his request for an updated 

docket sheet in February 2018. He argued he filed his seventh petition within 

60 days of learning of the dismissal of his sixth petition. Davis sought 

reinstatement of his right to appeal from the dismissal of his sixth petition.

Before the court took any action on his seventh petition, Davis filed an 

amended PCRA petition, pro se, in August 2018. In his amended petition, 

Davis argued his trial counsel had been ineffective for failing to object to the 

court’s instruction on accomplice liability for first-degree murder. He asserted 

his claim was timely as it was filed within 60 days of when he learned of the 

Third Circuit decision in Bennett v. Superintendent Graterford SCI, 886 

F.3d 268 (3d Cir. 2018). Davis filed another amended petition, pro se, in April 

2021, raising the same claim.

The court appointed counsel on Davis’s seventh and amended petitions

in October 2021. Counsel filed an amended petition in January 2022, 

advancing Davis’s request for reinstatement of his right to appeal from the 

____________________________________________

3 The Rule 907 notice is not in the certified record and does not appear on the 

docket. However, Davis responded to the notice, and has stated that he 

received it on August 3, 2017. See PCRA Pet., 3/8/18, at 3.
J-S31039-23

- 4 -

dismissal of his sixth petition. Counsel also repeated Davis’s claim that his trial 

counsel had been ineffective for failing to object to the jury instruction on 

accomplice liability. However, counsel did not request relief on this point, and 

stated in a footnote that he was “unable to ethically advance this claim” 

because he considered it to be untimely. Amended PCRA Pet., 1/22/22, at 9 

n.2 (unpaginated).

The Commonwealth filed a letter in response. The letter stated the 

Commonwealth did not oppose the reinstatement of Davis’s right to appeal 

his sixth petition, as Davis had not been served notice of the dismissal of his 

sixth petition pursuant to Pa.R.Crim.P. 907(4).

The court reinstated Davis’s right to appeal from the dismissal of his 

sixth petition but granted no other relief.4 According to the court’s Rule 

1925(a) opinion, it found Davis’s claim of ineffectiveness in relation to the jury 

instruction to be both untimely and meritless. 

Davis did not appeal from the order granting only partial relief on his 

seventh petition. Instead, through counsel, Davis filed notice of appeal from

the order dismissing his sixth petition. Nonetheless, the only issue Davis raises 

in the instant appeal is an issue he first raised in his seventh petition:

Where [Davis’s] prior PCRA counsel was ineffective for failing to 

allege that trial counsel was ineffective for failing to object to the 

trial court’s inaccurate accomplice liability instruction, can relief 

____________________________________________

4 There is no written order in the certified record. The docket states the court 

entered an order on August 3, 2022, stating, “Defendant’s appeal Rights 

Reinstated,” and “New fact exception has been satisfied.” Docket Entry No. 

139.
J-S31039-23

- 5 -

be granted on this claim pursuant to Commonwealth v. 

Bradley, 261 A.3d 381 (Pa. 2021)? 

Davis’s Br. at 4. 

“When reviewing the denial of a PCRA petition, we must determine 

whether the PCRA court’s order is supported by the record and free of legal 

error.” Commonwealth v. Anderson, 234 A.3d 735, 737 (Pa.Super. 2020). 

(quoting Commonwealth v. Smith, 181 A.3d 1168, 1174 (Pa.Super. 2018)).

Davis argues his trial counsel was ineffective for failing to object to the 

court’s instruction on accomplice liability and that his prior PCRA counsel, who 

represented him for his first PCRA petition, was ineffective for failing to raise 

this claim. Davis concedes that this claim “does not fit into one of the three 

existing codified exceptions” for PCRA timeliness.5 Id. at 58. However, he 

argues we should deem his claim timely “under the reasoning employed, and 

adopted, by our Supreme Court in [Bradley].” Id. He argues that Bradley

held that a claim of PCRA counsel’s ineffectiveness may be raised for the first 

time on appeal. Davis argues his seventh petition was his first opportunity to 

raise his claim of prior PCRA counsel’s ineffectiveness, as this was the first 

time he was appointed new counsel. 

This claim is not before us. The PCRA court granted Davis leave to appeal 

from his sixth PCRA petition, and he did so. Therefore, our review is limited to 

the claim Davis raised in his sixth petition, related to Burton. Davis did not 

____________________________________________

5 See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
J-S31039-23

- 6 -

appeal the PCRA court’s order granting only partial relief on his seventh 

petition, in which he raised this claim.

Bradley does not allow us to consider the merit of Davis’s 

ineffectiveness claim during this appeal. Bradley held “a PCRA petitioner may, 

after a PCRA court denies relief, and after obtaining new counsel or acting 

pro se, raise claims of PCRA counsel’s ineffectiveness at the first opportunity 

to do so, even if on appeal.” 261 A.3d at 401 (emphasis added). Bradley did 

not hold that a petitioner’s first opportunity to raise claims of ineffective

assistance of counsel only arises when new counsel is appointed 30 years after 

previous counsel has withdrawn.

The instant appeal from the dismissal of Davis’s sixth PCRA petition is 

not Davis’s first opportunity to raise the claim that PCRA counsel on his first 

petition was ineffective. He could have raised this claim pro se once he was 

no longer represented by his first PCRA counsel. And, in fact, he did raise it 

for the first time in his pro se amendment to his seventh petition, the partial 

denial of which is not before us.6

Order affirmed.

Judge Olson joins the memorandum.

Judge Stabile concurs in the result.

____________________________________________

6 Bradley reaffirmed the rule that subsequent counsel’s discovery of prior 

counsel’s ineffectiveness does not render a serial PCRA petition timely. See

Bradley, 261 A.3d at 404 n.18. Therefore, Davis’s ineffectiveness claim was 

not timely when presented in his seventh PCRA petition, and the PCRA court 

correctly denied relief.
J-S31039-23

- 7 -

Date: 12/11/2023