J-S34034-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ISAIAH S. VALENTI

Appellant No. 397 MDA 2015

Appeal from the PCRA Order January 15, 2015

In the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-CR-0001075-2008

BEFORE: PANELLA, J., STABILE, J., and JENKINS, J. 

MEMORANDUM BY JENKINS, J.: FILED JULY 06, 2016

Appellant Isaiah S. Valenti appeals from the order entered in the York 

County Court of Common Pleas, which dismissed his petition filed for relief 

pursuant to the Post Conviction Relief Act (“PCRA”).1 After careful review, 

we affirm and grant counsel’s petition to withdraw.

The PCRA court set forth the relevant facts and procedural history of 

this appeal as follows:

On October 17, 2008, a jury found Appellant guilty of one 

count of possession of cocaine with intent to distribute, 

one count of possession of marijuana, four counts of 

accident involving damage to attended vehicle/property, 

one count of fleeing and eluding an officer, and six counts 

of recklessly endangering another person. N.T. Trial, 

October 17, 2012, at 344-5. On December 3, 2008, 

____________________________________________

1 42 Pa.C.S. §§ 9541-9546.
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Appellant was sentenced to 11 to 27 years of 

incarceration. N.T. Sentence, December 3, 2008, at 7-8.

On that same day, Appellant filed a pro se notice of appeal 

(docketed at 2168 MDA 2008), which was dismissed 

because Appellant was represented by counsel. A 

subsequent notice of appeal was filed on March 18, 2009 

(docketed at 494 MDA 2009), and on May 5, 2009, [the 

trial court] filed [its] 1925(a) Opinion. In an Opinion filed 

March 30, 2010, The Pennsylvania Superior Court affirmed 

the judgment of sentence....

On April 20, 2010, Appellant filed a PCRA petition, which 

was denied after a hearing on July 19, 2010. Appellant 

filed a subsequent PCRA petition, and after a hearing held 

on December 22, 2010, [the] decision was reserved. 

Appellant filed an amended petition on January 31, 2011. 

On November 29, 2011, Appellant’s petition was granted 

and his appellate rights reinstated. The [c]ourt’s orders of 

November 2[9], 2011 and October 22, 2012,[2]only 

reinstated Appellant’s right to file an appeal from the order 

of July 19, 2010, denying Appellant’s first PCRA petition. 

The Superior Court concluded in its September 23, 2013 

Opinion (docketed at 1883 MDA 2012) that this [c]ourt 

improperly granted Appellant nunc pro tunc relief 

regarding his appeal from the denial of his first PCRA 

petition because Appellant had abandoned that appeal. The 

Superior Court affirmed the July 19, 2010 PCRA order and 

remanded the matter back to the PCRA court for a hearing 

on Appellant’s unresolved claims.

A PCRA hearing addressing Appellant’s two unresolved 

claims was held on January 9, 2015 and his petition for 

relief was subsequently denied. At the conclusion of the 

hearing, Appellant’s counsel was permitted ten days to 

review the record and file a motion for reconsideration in 

regards to the statement concerning the planting of 

evidence. A motion for reconsideration was filed on 

____________________________________________

2 Appellant failed to file a timely appeal after the court reinstated his rights 

nunc pro tunc, so the court re-instated his right to appeal nunc pro tunc on 

October 22, 2012.
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January 16, 2015 and denied without the need for a 

hearing or additional testimony on January 29, 2015 since 

the Superior Court had previously addressed the 

sentencing argument in its prior opinion and there was 

already previous testimony on the record from Attorney 

Moore. The two issues addressed at the hearing concerned 

Paragraphs 3(d) and 3(e) of Appellant’s amended PCRA 

petition filed on January 31, 2011.

PCRA Court Pa.R.A.P. 1925(a) Opinion, filed September 24, 2015, at 2-3.

On February 26, 2015, Appellant filed a notice of appeal.3 On March 2, 

2015, the PCRA court ordered Appellant to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and he timely 

complied on March 23, 2015. The PCRA court issued a Pa.R.A.P. 1925(a) 

opinion on September 24, 2015.

On December 9, 2015, Appellant’s counsel filed a petition to withdraw 

along with a “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). Counsel incorrectly advised Appellant that 

“should the court grant the Petition to withdraw as counsel,” he had the right 

to proceed pro se or with the assistance of privately-retained counsel of his 

____________________________________________

3 Appellant purported to appeal the January 29, 2015 order, which denied 

his petition for reconsideration. However, the appeal properly lies from the 

underlying order of January 15, 2015, which denied his PCRA petition. See 

Pa.R.Crim.P. 910; Pa.R.A.P. 108(a); Commonwealth v. Moir, 766 A.2d 

1253 (Pa.Super.2000). On April 28, 2015, this Court ordered Appellant to 

show cause within 10 days why the appeal should not be quashed as 

untimely. On May 8, 2015, Appellant filed a response. On May 14, 2015, 

this Court discharged the show-cause order and deferred the timeliness 

issue to this merits panel. We address this issue infra. 
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choice. See Turner/Finley Letter at 12. On December 21, 2015, in light of 

counsel’s incorrect advice, this Court ordered Appellant to file a response to 

the petition. On January 15, 2016, Appellant filed a response to counsel’s 

petition to withdraw, in which he requested this Court strike the petition to 

withdraw and no-merit letter but did not raise any additional issues for our 

review. 

Counsel identified the following issues in his Turner/Finley letter as 

the only issues not previously addressed by this Court:

[W]hy did [trial counsel] not request the [c]ourt to make a 

ruling on his objection to the statement made by [the 

assistant district attorney (“ADA”)?]

[W]hy did [trial counsel] not raise and argue that during 

Appellant’s sentencing the court referenced an 

objectionable statement made by the [ADA]?

Counsel’s No Merit Letter, December 9, 2015 (“No Merit Letter”) at 7 

(pagination supplied by this Court).

Before we determine the merits of Appellant’s claims, we must 

determine whether this appeal was timely filed, because the timeliness of an 

appeal implicates this Court’s jurisdiction. See Commonwealth v. 

Crawford, 17 A.3d 1279, 1281 (Pa.Super.2011). To preserve the right to 

appeal a final order of the PCRA court, a notice of appeal must be filed within 

thirty days after the date of entry of the order granting or denying relief. 

See Pa.R.Crim.P. 910; Pa.R.A.P. 903(a). 
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Here, the PCRA court denied Appellant’s PCRA petition on January 9, 

2015, and Appellant’s notice of appeal, filed on February 26, 2015, is facially 

untimely. In his response to this Court’s order to show cause why this Court 

should not dismiss his appeal as untimely filed, Appellant asserts that there 

was a breakdown in the PCRA court’s process, specifically that the PCRA 

court advised Appellant he could file for reconsideration and request that 

additional testimony be taken.

At the conclusion of the hearing on January 9, 2015, the PCRA court 

stated:

[F]or today’s purposes, given our discussions surrounding 

the trial, the second PCRA petition and amendment to that 

PCRA petition, unless anybody else sees the necessity for 

testimony, I think we have enough on the record that we 

really don’t need to have testimony in the matter. [...] I 

believe my rulings are that the record supports dismissal 

of the PCRA petition...

[Appellant’s counsel,] you can have ten days to obviously 

review the record. And if you file a motion for 

reconsideration within the next ten days, I’ll take a look at 

it and decide whether or not you would be entitled to a 

hearing on that...

N.T. January 9, 2015, at 15, 16. In an order docketed on January 15, 2015, 

the PCRA court recited the above passage, verbatim. Appellant filed a 

motion for reconsideration within the next ten days, and the PCRA court 

ultimately denied the motion on January 29, 2015. 

Although Appellant should have filed a notice of appeal within 30 days 

of the January 15, 2015 order, the PCRA court advised him to file a motion 
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for reconsideration, thus purporting to extend its determination of 

Appellant’s PCRA petition and consequently Appellant’s appeal period.4 We 

view the PCRA court’s advice to Appellant as incorrect and a breakdown of

the court’s operation. See Commonwealth v. Leatherby, 116 A.3d 73, 79 

(Pa.Super.2015) (“[An appellant] should not be precluded from appellate 

review based on what was, in effect, an administrative breakdown on the 

part of the trial court.”). See also Commonwealth v. Parlante, 823 A.2d 

927, 929 (Pa.Super.2003) (“the trial court’s misstatement of appeal 

period...operated as a breakdown in the court’s operation”). Thus, we 

decline to quash this appeal as untimely.

Next, we must determine whether PCRA counsel has complied with the 

technical requirements of Turner/Finley.

Counsel petitioning to withdraw from PCRA representation 

must proceed under [Turner/Finley and] ... must review 

the case zealously. Turner/Finley counsel must then 

submit a “no merit” letter to the trial court, or brief on 

____________________________________________

4 However, a motion for reconsideration does not toll the 30-day appeal 

period for a PCRA dismissal.

“[A]lthough a party may petition the court for 

reconsideration, the simultaneous filing of a notice of 

appeal is necessary to preserve appellate rights in the 

event that either the trial court fails to grant the petition 

expressly within 30 days, or it denies the petition. 

Moreover, we have consistently held that an appeal from 

an order denying reconsideration is improper and 

untimely.” 

Commonwealth v. Moir, 766 A.2d 1253.1254 (Pa.Super.2000).
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appeal to this Court, detailing the nature and extent of 

counsel’s diligent review of the case, listing the issues 

which 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. Where counsel submits a petition and no-merit 

letter that 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.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa.Super.2012) (citations 

omitted). 

Here, PCRA counsel filed a petition to withdraw along with a 

Turner/Finley “no merit” letter that detailed the nature and extent of 

counsel’s review of the case, listed the issues Appellant wished to be 

reviewed, and explained why each issue lacked merit. See No Merit Letter 

at 1-7. Counsel supplied a copy of the letter to Appellant along with his 

petition to withdraw. Although counsel erroneously advised Appellant of his 

right to proceed pro se or with privately retained counsel if this Court 

granted his petition to withdraw, this Court remedied the error by directing 

Appellant to file a response to counsel’s petition, and Appellant complied. 

This constitutes substantial compliance with the mandates of 

Turner/Finley, and we will now address the merits of the claims raised.

Our standard of review is well-settled. “In reviewing the denial of 

PCRA relief, we examine whether the PCRA court’s determination is 
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supported by the record and free of legal error.” Commonwealth v. Fears, 

86 A.3d 795, 803 (Pa.2014) (internal quotation marks and citation omitted). 

“The 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.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.2014) 

(citation omitted). “It is well-settled that a PCRA court’s credibility 

determinations are binding upon an appellate court so long as they are 

supported by the record.” Commonwealth v. Robinson, 82 A.3d 998, 

1013 (Pa.2013) (citation omitted). However, this Court reviews the PCRA 

court’s legal conclusions de novo. Commonwealth v. Rigg, 84 A.3d 1080, 

1084 (Pa.Super.2014) (citation omitted). 

In both of his issues, Appellant argues that his trial counsel was 

ineffective. Although claims of ineffective assistance of counsel are 

cognizable under the PCRA, Appellant waived his issues by failing to raise 

them in his first PCRA petition. See 42 Pa.C.S. § 9544(b) (“an issue is 

waived if the petition could have raised it but failed to do so... in a prior state 

post[-]conviction proceeding.”). 

Moreover, this is Appellant’s second petition filed for relief pursuant to 

the PCRA. A heightened standard applies to a second or subsequent PCRA 

petition to prevent “serial requests for post-conviction relief.” 

Commonwealth v. Jette, 23 A.3d 1032, 1043 (Pa.2011). A second or

subsequent PCRA petition will not be entertained unless “the petitioner 
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makes a strong prima facie showing that a miscarriage of justice may have 

occurred.” Commonwealth v. Medina, 92 A.3d 1210, 1215 

(Pa.Super.2014) (en banc), appeal granted, 105 A.3d 658 (Pa.2014). 

“Appellant makes a prima facie showing of entitlement to relief only if he 

demonstrates either that the proceedings which resulted in his conviction 

were so unfair that a miscarriage of justice occurred which no civilized 

society could tolerate, or that he was innocent of the crimes for which he 

was charged.” Id. (citation omitted).

Appellant does not allege a miscarriage of justice in his second PCRA 

petition. Appellant’s counsel reasoned in his No Merit Letter:

At the January 9, 2015 hearing, you stated in part the 

following: “today I’m [here] to[,] you know what I mean, 

to take full responsibility for my actions like you said in the 

past.” It is unlikely that the Superior Court will interpret 

these statements as establishing your innocence.

No Merit Letter at 7-8.

Counsel is correct that we do not interpret Appellant’s statements as 

establishing his innocence, and our independent review of the record does 

not reveal that a miscarriage of justice occurred which no civilized society 

could tolerate. 

Having found Appellant waived his issues and failed to allege a 

miscarriage of justice, and finding nothing in the record that would support a 

contrary result, we affirm the order of the PCRA court denying Appellant’s 

PCRA petition and grant PCRA counsel’s petition to withdraw.
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Order affirmed. Petition to Withdraw as Counsel granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/6/2016