J-S03028-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

LYNN PRESLEY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2032 EDA 2021

Appeal from the PCRA Order Entered September 24, 2021

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

No(s): CP-51-CR-1113641-1998

COMMONWEALTH OF PENNSYLVANIA

v.

LYNN PRESLEY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2033 EDA 2021

Appeal from the PCRA Order Entered September 24, 2021

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

No(s): CP-51-CR-1113831-1998

BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.

MEMORANDUM BY McCAFFERY, J.: FILED SEPTEMBER 14, 2023

Lynn Presley appeals from the orders entered in the Philadelphia County 

Court of Common Pleas dismissing his second petition filed pursuant to the 

Post Conviction Relief Act (PCRA),

1 seeking relief from his violation of 

____________________________________________

1 42 Pa.C.S. §§ 9541-9545.
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probation (VOP) sentence after entering guilty pleas at two dockets.2 On 

appeal he alleges his sentence of 12 to 24 years’ incarceration imposed after 

a violation of his probation was excessive and prior PCRA and appellate 

counsel was ineffective. Counsel for Appellant filed a letter brief and motion 

to withdraw as counsel pursuant to Commonwealth v. Turner, 544 A.2d 

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

1998). We affirm.

We glean the following underlying facts and procedural history from a 

prior decision of this Court:

This matter arises out of Appellant’s involvement in two 

separate criminal cases in Philadelphia County. At [Docket 3641], 

Appellant pleaded guilty to robbery, terroristic threats, simple 

assault, and contempt of court. At [Docket 3831], he pleaded 

guilty to theft by unlawful taking, simple assault, and contempt of 

court. On January 7, 2000, the [trial court] sentenced Appellant 

to an aggregate term of [11 and one half to 23 months’]

incarceration followed by five years of reporting probation. 

Appellant was granted immediate parole.

Due to technical violations of Appellant’s probation 

requirements[, the VOP court] revoked his probation at a [VOP]

hearing on March 30, 2001. [The VOP court] resentenced him to 

the same term of [11 and one half to 23 months’] incarceration 

followed by five years of reporting probation.

Based on an undercover police investigation [from October 

through December of 2004], Appellant was charged in 

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2 On January 7, 2000, at Criminal Docket CP-51-CR-1113641-1998 (Docket

3641), Appellant plead guilty to one count each of theft, simple assault, and 

contempt of court. See 18 Pa.C.S. §§ 3921(a), 2701(a); 23 Pa.C.S. § 6114. 

That same day, Appellant plead guilty at Criminal Docket CP-51-CR-1113831-

1998 (Docket 3831), to one count each of robbery, terroristic threats, simple 

assault, and contempt of court. See 18 Pa.C.S. §§ 3701, 2706(a).
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Montgomery County on March 1, 2005, with multiple theft 

crimes[.] Six months later at a bench trial on September 13, 

2005, [a Philadelphia trial court] found Appellant guilty of various 

[unrelated] drug charges and conspiracy[.] Due to Appellant’s 

intervening criminal conduct, [the VOP court then] held a VOP 

hearing on November 16, 2005, where [it] heard testimony 

regarding the Montgomery County charges and the Philadelphia 

County drug offenses. Noting this was Appellant’s second VOP 

hearing, [the VOP court] revoked Appellant’s probation and 

sentenced him to an aggregate term of [12 to 24 years’]

incarceration[.] 

Appellant filed a timely post-sentence motion[. The VOP

court] granted the motion and vacated [the 12 to 24 year]

sentence. Following numerous continuances requested by 

Appellant in order to [ultimately unsuccessfully] negotiate a deal 

with the Montgomery County District Attorney, [the VOP court] 

conducted a hearing on December 6, 2006, to reconsider 

Appellant’s revocation of probation sentence. At the 

reconsideration hearing, the Commonwealth explained that it 

would nolle prose Appellant’s [Philadelphia] drug convictions “in 

favor of judicial economy” if [the VOP court] decided to re-impose 

the [12 to 24 year] sentence. After hearing argument from 

counsel and Appellant’s statement, [the VOP court] re-imposed 

the . . . sentence of [12 to 24 years’] incarceration[.] On the same 

day, the Commonwealth nolle prossed Appellant’s drug 

convictions. Appellant did not file post-sentence motions or a 

direct appeal.

[In August of 2007, Appellant filed a PCRA petition] seeking 

reinstatement of his post-sentence and direct appeal rights nunc

pro tunc because counsel failed to file post-sentence motions or a 

direct appeal from the December 6, 2006[,] sentence. . . . The 

PCRA court [granted his petition and] reinstated [his] direct 

appeal rights nunc pro tunc on February 4, 2011. 

Commonwealth v. Presley, 193 A.3d 436, 438-39 (Pa. Super. 2018) 

(citation omitted). 

In his direct appeal, Appellant argued his sentence was “harsh and 

excessive” and the VOP court did not consider the sentencing factors or 

explain its reasons for imposing the sentence. Commonwealth v. Presley, 
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554 EDA 2011 (unpub. memo at 5) (Pa. Super. Apr. 23, 2012). The trial 

court3 agreed the VOP court failed to provide an explanation for the sentence 

it imposed, and “respectfully recommend[ed] that [Appellant’s] sentence be 

vacated and the matter remanded for imposition of a new sentence.” See 

Presley, 193 A.3d at 440 (citation omitted). On April 23, 2012, another panel 

of this Court denied relief, reasoning that Appellant did not preserve this claim 

for review, but indicated its ruling was “without prejudice to his rights under 

the PCRA to allege trial counsel’s ineffectiveness in failing to file a postsentence motion.” Presley, 554 EDA 2011 (unpub. memo. at 7-8). Appellant 

filed a petition for review with the Pennsylvania Supreme Court, which was 

denied on August 28, 2012. See Commonwealth v. Presley, 221 EAL 2012 

(Pa. Aug. 28, 2012). 

On December 17, 2012, Appellant filed a timely first PCRA petition, 

wherein he alleged VOP counsel was ineffective for failing to preserve his

discretionary aspects of sentencing claim.

4

 See Presley, 193 A.3d at 442. 

The PCRA court dismissed his petition and this Court affirmed the order, 

opining the VOP court did not abuse its discretion “[g]iven the facts and history 

of [the] case[,]” the court’s “familiarity” with Appellant, and the “highly-

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3 A different trial judge presided over Appellant’s direct appeal than his VOP 

proceedings.

4 Appellant filed his December 2012 petition pro se. On January 15, 2015, 

Peter A. Levin, Esquire, was appointed to represent Appellant. See Appellant’s 

Amended Petition Under Post-Conviction Relief Act, 7/21/16, at 5. Attorney 

Levin filed an amended petition on July 21, 2016. 
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deferential” standard of review. Id. at 447. Specifically, it noted the VOP 

court was “well aware of Appellant’s character, circumstances, and potential 

for rehabilitation (or lack thereof).” Id. at 446, citing Commonwealth v. 

Pasture, 107 A.3d 21, 28 (Pa. 2014) (“When sentencing is a consequence of 

the revocation of probation, the trial judge is already fully informed as to the 

facts and circumstances of both the crime and the nature of the defendant . . 

.”). Moreover, it concluded Appellant could not establish that counsel’s failure 

to file the motion prejudiced him. Id. The Pennsylvania Supreme Court 

denied Appellant’s petition for allowance of appeal on January 29, 2019. See 

Commonwealth v. Presley, 366 EAL 2018 (Pa. Jan. 29, 2019). 

Appellant filed the present PCRA petition, his second, on September 24, 

2019, alleging VOP hearing counsel was ineffective and the VOP court imposed 

an excessive sentence. Appellant’s Pro Se Motion for Post Conviction 

Collateral Relief, 9/24/19, at 3. On June 24, 2021, the PCRA court issued a 

notice of dismissal pursuant to Pa.R.Crim.P. 907. Appellant did not file a 

response, but on July 2nd requested the court appoint him counsel. On

September 24, 2021, the court dismissed the petition as untimely and granted 

the request for counsel.5 On September 28th, Daniel Anthony Alvarez, Esquire

(Counsel), entered his appearance and filed timely notices of appeal at each 

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5 The order dismissing Appellant’s September 24, 2019, PCRA petition does 

not appear in the record. However, the criminal docket reflects the PCRA court 

filed such an order on September 24, 2021. See Criminal Docket No. CP-51-

CR-1113641-1998, at 20; Criminal Docket CP-51-CR-1113831-1998, at 21. 
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docket the next day. On October 28, 2021, this Court sua sponte consolidated 

Appellant’s appeals. Order, 10/28/21. 

On November 8, 2021, Appellant complied with the PCRA court’s order 

to file a concise statement of matters complained of on appeal pursuant to 

Pa.R.A.P. 1925(b), alleging appellate counsel was ineffective, his VOP 

sentence of 12 to 24 years’ incarceration was excessive, and the VOP court 

failed to state its reasons for imposing the sentence on the record. See

Appellant’s Statement of Matters Complained of On Appeal, 11/8/21, at 1 

(unpaginated). However, two days later — and one day after the filing 

deadline — Appellant filed a supplemental Rule 1925(b) statement raising an 

additional claim that his September 2019 petition was timely filed in light of 

the Pennsylvania Supreme Court decision Commonwealth v. Bradley, 261 

A.3d 381 (Pa. 2021). See Appellant’s Amended/Supplemental Statement of 

Matters Complained of On Appeal, 11/10/21, at 2 (unpaginated). 

On December 13, 2021, the PCRA court issued an opinion stating: (1)

Appellant waived his argument regarding the timeliness of his petition when 

he raised it in an untimely Rule 1925(b) statement; and (2) his remaining 

ineffectiveness claim was previously litigated. PCRA Ct. Op.,12/13/21, at 6-

7. Thereafter, Appellant filed an application in this Court to remand the matter

to the PCRA court to address his arguments regarding Bradley. See

Appellant’s Application for Remand to Seek From the Lower Court Permission 

to File An Amended/Supplemental Statement of Matters, Nunc Pro Tunc, In 

Light of the Recently Decided Pennsylvania Supreme Court Case, 
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Commonwealth v. Aaron Bradley, [ ] 12/15/21, at 2-5 (unpaginated). On 

January 7, 2022, this Court remanded the case and directed the PCRA court 

to address the applicability of Bradley. Order, 1/7/22. The PCRA court filed 

a supplemental opinion on May 26, 2022, and shortly thereafter, counsel filed

a Turner/Finley petition to withdraw from representation. This matter now 

returns to us on appeal. 

We surmise the following claims from Counsel’s Turner/Finley letter 

brief:6 (1) Appellant believes his 2006 sentence of 12 to 24 years’ 

incarceration was excessive; (2) former PCRA counsel, Attorney Levin, was 

ineffective; and (3) Appellant’s petition was timely filed under Bradley

because it was “filed within one year of the denial of allocator” of his first PCRA 

petition. See Turner/Finley Letter Brief at 8-10. 

Preliminarily, we address Counsel’s motion to withdraw as counsel. An 

application to withdraw as counsel must comply with the Turner/Finley

requirements:

Counsel petitioning to withdraw from PCRA representation 

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

the case zealously. Turner/Finley counsel must then submit a 

“no-merit” letter to the trial 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 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 

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6 Counsel did not include a “Questions Presented” section in his letter brief.
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withdraw; and (3) a statement advising petitioner of the right to 

proceed pro se or by new counsel. 

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

omitted). If this Court determines counsel has satisfied these technical 

requirements, we “must then conduct [our] own review of the merits of the 

case. If [we] agree[ ] with counsel that the claims are without merit, [we] 

will permit counsel to withdraw and deny relief.” Id. (citation omitted). 

Here, Counsel has satisfied the above procedural requirements. In his 

letter brief, he discusses Appellant’s potential claims, the relevant case law

and supporting documents, and the reasons why the issue is “frivolous.”7 

Turner/Finley Letter Brief at 1, 7-19. Counsel purports that Appellant’s 

petition is “arguably” timely filed under Bradley since it challenges prior PCRA 

counsel’s ineffective assistance and was submitted less than one year after 

the Pennsylvania Supreme Court denied review of his 2018 PCRA petition. 

See Turner/Finley Brief at 9. However, he explains Appellant is otherwise 

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7 To withdraw from representation during PCRA proceedings, counsel must 

comply with Turner/Finley requirements, which dictate a finding that all 

purported claims are meritless. See Doty, 48 A.3d at 454. Alternatively, 

when petitioning to withdraw from direct appeal representation, counsel must 

determine an appellant has no non-frivolous claims. See Anders v. 

California, 386 U.S. 738, 744 (1967).

Here, Counsel has concluded Appellant’s claims are “frivolous.” See 

Turner/Finley Letter Brief at 1. Though counsel uses the language specific 

to an Anders’ petition, his determination substantially complies with the 

requirements of Turner/Finley. See Commonwealth v. Widgins, 29 A.3d 

816, 817 n.2 (Pa. Super. 2011) (stating Anders provides higher protections 

than Turner/Finley, and as such, complies with the Turner/Finley

standard). 
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not entitled to relief because: (1) his discretionary aspects of sentencing claim

was previously litigated in his prior PCRA petition; and (2) Appellant does not 

specify “how previous counsel [Attorney Levin] was ineffective and how such 

ineffectiveness caused . . . Appellant prejudice[.]” Id. at 10; see also 

Presley, 193 A.3d at 446-47. Counsel indicated in his motion to withdraw he 

served a copy of the motion and Turner/Finley letter brief on Appellant, and

informed him that he may retain new counsel or proceed pro se. Motion to 

Withdraw as Counsel, 8/12/22, at 2; Turner/Finley Letter Brief at 2, Ex. A. 

Thus, he has complied with the requirements of Turner/Finley. See Doty, 

48 A.3d at 454. Appellant has not filed a response to counsel’s motion to 

withdraw or letter brief. Accordingly, we proceed to conduct an independent 

review of the record to determine if the appeal lacks merit. 

Our review of an order denying PCRA relief is well-established. “[W]e 

examine whether the PCRA court’s determination is supported by the record 

and free of legal error.” Commonwealth v. Mitchell, 141 A.3d 1277, 1283-

84 (Pa. 2016) (citation & quotation marks omitted). Here, the PCRA court 

determined Appellant’s second petition was untimely filed and Bradley is not 

applicable.8 PCRA Ct. Supp. Op., 5/26/22, at 6-7. We agree. 

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8

It appears the PCRA court has misconstrued Appellant’s argument as to 

which prior counsel he claims was ineffective. See PCRA Ct. Supp. Op. at 6-

7 (stating Appellant raises an ineffectiveness claim against trial/VOP counsel). 

Appellant’s PCRA petition and present Counsel’s Turner/Finley letter brief 

each raise an ineffectiveness claim against Appellant’s prior PCRA counsel 

Attorney Levin. See Appellant’s Pro Se Motion for Post Conviction Collateral 

(Footnote Continued Next Page)
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The statutory requirement that a PCRA petition must be filed within one 

year of the date the judgment of sentence becomes final is a “jurisdictional 

deadline” and a PCRA court may not ignore the untimeliness of a petition to 

address the merits of the issues raised therein. Commonwealth v. 

Whiteman, 204 A.3d 448, 450 (Pa. Super. 2019) (citation omitted); see also

42 Pa.C.S. § 9545(b)(1). 

Here, Appellant’s judgment of sentence was final on November 26, 2012 

— 90 days after the Pennsylvania Supreme Court denied his petition for 

allocatur, and the time for filing a writ of certiorari with the United States 

Supreme Court expired. See U.S. Sup. Ct. R. 13. Therefore, he had until 

November 26, 2013, to file a timely PCRA petition, which he did on December 

17, 2012. However, the present petition — Appellant’s second — was filed on 

September 24, 2019, almost 6 years after the filing deadline, and is, therefore, 

facially untimely. 

Nevertheless, Section 9545(b)(1) provides three exceptions to the time 

for filing requirement:

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

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

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Relief, 9/24/19, at 4 (asking the PCRA court to “acknowledge that [his] 

counsel [Attorney] Levin was indeed ineffective. . . ); Turner/Finley Letter 

Brief at 10 (noting Appellant raised his claim against Attorney Levin). This 

does not impact our review as we may affirm on any basis. See 

Commonwealth v. Diaz, 183 A.3d 417, 421 (Pa. Super. 2018) (“[A]n 

appellate court is not bound by the rationale of the trial court and may affirm 

on any basis if the record supports it.”). 
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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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition invoking one of the timeliness 

exceptions must “be filed within one year of the date the claim could have 

been presented.” 42 Pa.C.S. § 9545(b)(2). “It is the petitioner’s burden to

allege and prove that one of the timeliness exceptions applies.” 

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008) (emphasis 

added).

Neither Appellant nor Counsel allege any of the above timeliness 

exceptions. Instead, in his Turner/Finley letter brief, Counsel argues 

Appellant’s petition is timely filed under Bradley. Turner/Finley Letter Brief 

at 8-9. Specifically, he asserts Bradley permits an appellant to file a timely 

petition raising prior PCRA counsel’s ineffectiveness “within one year of the 

denial of allocatur[.]” See id. We conclude however, that Bradley is 

inapplicable to Appellant’s petition. 
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In Bradley, the Pennsylvania Supreme Court permitted review to 

“consider whether the current process for the enforcement of the right to 

effective counsel in a first PCRA proceeding is adequate, and if not, whether 

another process is appropriate.” Bradley, 261 A.3d at 386. At that time, a 

petitioner was required to raise claims of PCRA counsel’s ineffectiveness in a 

response to the PCRA court’s Pa.R.Crim.P. 907 notice of intent to dismiss the 

petition. See id. The failure to do so would result in waiver of the claims. 

Id.

Recognizing the impracticability of that procedure, the Bradley Court 

held “that 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.” Bradley, 

261 A.3d at 401 (footnote omitted). However, the Court further opined:

[W]e deem the consideration on collateral appeal of claims of 

PCRA counsel ineffectiveness to spring from the original petition 

itself, and that doing so does not amount to impermissibly 

allowing a “second or subsequent” serial petition — the concern of 

our Court in [Commonwealth v.] Lawson[, 549 A.2d 107 (Pa. 

1988)] and the General Assembly in its 1988 amendments to the 

PCRA. Lawson, 549 A.2d at 108; 42 Pa.C.S. § 9545(b)(1). 

Accordingly, we reject the notion that considering ineffectiveness 

claims on collateral appeal constitutes a prohibited serial petition, 

violating the PCRA’s one-year time bar.18

18 We decline to adopt the approach . . . that would deem a 

petitioner’s “discovery” of initial PCRA counsel’s ineffective 

assistance to constitute a “new fact” that was unknown to 

petitioner, allowing such petitioner to overcome, in a 

successive petition, the PCRA’s time bar provision under the 

“new fact” exception. See 42 Pa.C.S. § 9545(b)(1)(ii). We 
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have repeatedly rejected such an understanding of the “new 

fact” exception to the PCRA’s one-year time bar.

Id. at 404 & n.18. See also id. at 406 (Dougherty, J., Concurring) 

(“Importantly, our decision today does not create an exception to the 

PCRA’s jurisdictional time-bar, such that a petitioner represented by the 

same counsel in the PCRA court and on PCRA appeal could file an untimely 

successive PCRA petition challenging initial PCRA counsel’s ineffectiveness 

because it was his first opportunity to do so[.]”) (quotation marks omitted & 

emphasis added).

The Bradley Court came to the above conclusions based on a PCRA 

petitioner’s right to the appointment of counsel for a first petition, as well as 

the right that counsel provide effective assistance. See Bradley, 261 A.3d at 

391. Our Court has concluded in prior unpublished decisions that Bradley

does not permit petitioners to file subsequent PCRA petitions in order to 

challenge prior PCRA counsel’s ineffective assistance.9 See Commonwealth 

v. Dixon, 1145 EDA 2022, 2022 WL 17973240 at *3 (Pa. Super. Dec. 28, 

2022) (concluding “Bradley does not trigger the [newly recognized 

constitutional right] timeliness exception [because it] is properly understood 

as a reassessment of appellate procedure in cases involving claims for 

collateral relief[, and not] a decision by the Pennsylvania Supreme Court which 

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9 We may cite unpublished non-precedential memorandum decisions of this 

Court filed after May 1, 2019, for their persuasive value. See Pa.R.A.P. 

126(b)(1)-(2).
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recognizes a new and retroactive constitutional right outside the permissible 

filing period provided under the PCRA.”); Commonwealth v. Parkinson, 

1286 EDA 2022, 2022 WL 5237927 at *3 (Pa. Super. 2022) (holding “Bradley

did not create a new, non-statutory exception to the PCRA time bar”). 

Because here, Appellant challenges prior counsel’s ineffectiveness in a second 

PCRA petition, Bradley does not apply. See Bradley, 261 A.3d at 404 & 

n.18. Accordingly, Appellant’s claim that his petition is timely filed under 

Bradley is meritless and no relief is due. See id.; Whiteman, 204 A.3d at

450; see also 42 Pa.C.S. § 9545(b)(1). 

Moreover, even if Appellant’s petition was timely filed, he would not be 

entitled to relief. He first raises a claim pertaining to the discretionary aspects 

of his sentence. We note that “[c]hallenges to the discretionary aspects of 

sentencing are not cognizable under the PCRA.” Commonwealth v. Fowler, 

930 A.2d 586, 593 (Pa. Super. 2007). Furthermore, this claim has been 

previously litigated and as such, is ineligible for PCRA review. See 42 Pa.C.S. 

§ 9543(a)(3) (providing that a petitioner must plead and prove by a 

preponderance of the evidence that the allegation of error has not been

previously litigated); see also Commonwealth v. Spotz, 18 A.3d 244, 281 

(Pa. 2011) (previously litigated claims are not cognizable under the PCRA). 

Next, Appellant alleges Attorney Levin was ineffective when 

representing Appellant in his first PCRA proceedings and subsequent appeal. 

As present PCRA counsel points out in his Turner/Finley letter brief, Appellant 

does not allege how Attorney Levin was ineffective or how this purported 
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ineffectiveness prejudiced him. See Turner/Finley Letter Brief at 10. See 

also Commonwealth v. Bishop, 266 A.3d 56, 62 (Pa. Super. 2021) (to 

prevail on a claim of ineffective assistance, a petitioner must prove: (1) the 

claim has arguable merit; (2) counsel had no reasonable basis for their 

conduct; and (3) the petitioner was prejudiced). Thus, Appellant has not 

established that Attorney Levin was ineffective, and no relief is due. See id. 

Because we agree with the PCRA court’s determination that Appellant’s 

petition was untimely filed, and he has failed to plead and prove the 

applicability of any of the PCRA’s timeliness exceptions, we affirm the order 

dismissing his serial petition.

Petition to withdraw granted and order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/14/2023