J-S51039-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BRYAN WAYNE BRACKBILL, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1799 MDA 2019

Appeal from the PCRA Order Entered September 30, 2019

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

CP-67-CR-0005421-2013

BEFORE: MURRAY, J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.: FILED FEBRUARY 23, 2021

Bryan Wayne Brackbill, Jr. (Appellant) appeals from the order entered 

in the York County Court of Common Pleas dismissing his serial petition filed

pursuant to the Post Conviction Relief Act (PCRA).

1

 Appellant’s courtappointed counsel has filed a petition to withdraw from representation and a 

Turner/Finley2 no merit letter in lieu of a brief. The no merit letter addresses 

three claims of PCRA court error: whether the court erred in (1) dismissing 

the petition as untimely filed, (2) dismissing the petition without first 

conducting an evidentiary hearing, and (3) summarily dismissing Appellant’s 

illegal sentencing claim. We affirm, and grant counsel’s petition to withdraw.

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1 42 Pa.C.S. §§ 9541-9546.

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

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 
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The relevant facts and procedural history underlying this appeal are as 

follows. On June 2, 2013, Appellant murdered the victim, Sandra Mulder, and 

stole her car. See Commonwealth v. Brackbill, 714 MDA 2017 (unpub. 

memo. at 2-4) (Pa. Super. Jun. 13, 2018). Appellant had known the victim 

for years; at the time of the murder, he and his then-girlfriend, Crystal 

Hughes, “were sharing a basement bedroom at the victim’s house.” Id. at 1-

2. 

On August 14, 2014, a jury convicted Appellant of second-degree 

murder and theft by unlawful taking.3 That same day, the trial court 

sentenced him to an aggregate term of life imprisonment. Appellant filed a 

timely direct appeal in which he challenged, inter alia, the sufficiency of the 

evidence supporting his convictions and the trial court’s jury instruction on the 

elements of robbery, a crime for which he was not charged. See 

Commonwealth v. Brackbill, 1433 MDA 2014 (unpub. memo. at 4) (Pa. 

Super. Sep. 8, 2015), appeal denied, 760 MAL 2015 (Pa. Dec. 28, 2015). This 

Court concluded Appellant’s claims were meritless, and affirmed the judgment 

of sentence on September 8, 2015.4 The Pennsylvania Supreme Court 

subsequently denied allocatur review on December 28, 2015. 

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3 18 Pa.C.S. §§ 2502(b), 3921(a).

4 Specifically, the panel held the evidence was sufficient for the jury to find 

Appellant murdered the victim in the course of committing felony robbery, 

despite the fact he was not charged with offense of robbery. Brackbill, 1433 

MDA 2014 (unpub. memo. at 8-9). The panel explained: “[I]n order to obtain 
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On July 6, 2016, Appellant filed a timely, pro se PCRA petition, in which 

he raised numerous allegations of trial counsel’s ineffectiveness, and a claim 

that he should be granted a new trial because the Commonwealth allowed its 

witness, Crystal Hughes, to perjure herself.

5

 See Appellant’s Brief for Post 

Conviction Act Collateral Relief, 7/6/16, at 23-25. Counsel was appointed, 

and the PCRA court conducted an evidentiary hearing on March 28, 2017. At 

the conclusion of the hearing, the court denied PCRA relief. This Court 

affirmed the decision on appeal. See Brackbill, 714 MDA 2017. 

Thereafter, on June 14, 2019, Appellant filed the present, pro se PCRA 

petition. He acknowledged the petition was a “second or subsequent” request 

for relief, and argued “the facts upon which [his] claim is predicated were 

unknown to [him; namely,] that Commonwealth witness Crystal Hughes 

testified in exchange for a Nolle Pross [sic] of her then pending case[.]” 

Appellant’s Second or Subsequent Post Conviction Collateral Relief, 6/14/19, 

at 1-2 (unpaginated). Appellant also asserted that he was “deprived of his 

right to a fair and impartial jury . . . when the prosecution created a variance 

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a conviction of second-degree murder, the Commonwealth need not charge a 

defendant with the underlying felony.” Id. at 10, quoting Commonwealth 

v. Pasmore, 857 A.2d 697, 706 (Pa. Super. 2004) (citation omitted). 

5 Specifically, Appellant asserted that although Hughes testified she was not 

offered leniency in exchange for her testimony against him, after his trial, all 

charges pending against her were dismissed by the same trial court that 

presided over his trial. See Appellant’s Brief for Post Conviction Act Collateral 

Relief at 23-24.
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between pleading . . . and proof” — that is, he was convicted of robbery as 

the underlying felony for his second degree murder conviction, but was never 

charged with that crime. See id. at 5.

The PCRA court granted Appellant’s request for the appointment of 

counsel, and conducted an evidentiary hearing on September 30, 2019. At 

the conclusion of the hearing, the PCRA court entered an order denying the

petition as untimely filed. See Order, 9/30/19, at 1.6 Counsel filed a timely 

notice of appeal, and complied with the PCRA court’s directive to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Meanwhile, Appellant filed several pro se documents in this Court, which 

were forwarded to PCRA counsel. See Commonwealth v. Jette, 23 A.3d 

1032, 1044 (Pa. 2011) (“[P]roper response to any pro se pleading is to refer 

pleading to counsel, and to take no further action on the pro se pleading unless 

counsel forwards a motion.”); Appellant’s Motion for Extension of Time to File 

Statement of Errors Complained of on Appeal, 11/26/19; Appellant’s Letter, 

2/19/20. On June 25, 2020, a pro se petition for extension of time to file a 

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6 We note that the complete transcript from the September 30th hearing is not 

included in the certified record. Rather, the notes of testimony attached 

consist only of the following order: “I’ve denied the petition and you’re going 

to proceed with perfecting his appeal.” N.T., 9/30/19, at 1. The trial docket 

lists this simply as an order.
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brief was docketed in this Court.7 That same day, counsel filed (1) an 

application to withdraw as counsel, (2) a Turner/Finley no-merit letter, and 

(3) a motion seeking a 90-day extension of time for Appellant to file his own 

pro se brief. 

Thereafter, on July 1, 2020, this Court issued a per curiam order which

(1) directed PCRA counsel to provide Appellant with a letter advising him of 

his right to proceed pro se or with a private attorney,8 and (2) granted

Appellant an extension of time until August 31, 2020, to file a pro se response 

to counsel’s petition to withdraw and no-merit letter. See Order, 7/1/20. 

Counsel complied with the court’s directive that same day. See 

Friend/Muzzy Notice, 7/1/20. On September 1, 2020, Appellant filed a pro 

se application for relief, asserting, inter alia, that his petition was not untimely 

filed and he was never charged with robbery, the underlying offense for his 

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7 The document is date-stamped as received on May 26, 2020. See

Appellant’s Petition for Extension of Time to File Brief, 6/25/20. It appears 

this document was not forwarded to counsel.

8 See Commonwealth v. Friend, 896 A.2d 607, 614 (Pa. Super. 2006) 

(requiring PCRA counsel who seeks to withdraw to “contemporaneously” serve 

petitioner with application to withdraw and no-merit letter, and “a statement 

advising the petitioner that, in the event that the court grants the application 

of counsel to withdraw, he or she has the right to proceed pro se or with the 

assistance of privately retained counsel”) (emphasis omitted), abrogated in 

part by Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009); 

Commonwealth v. Muzzy, 141 A.3d 509, 512 (Pa. Super. 2016) (petitioner 

has right to proceed pro se or through private counsel “upon the filing of 

counsel’s petition to withdraw”) (emphasis omitted).
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conviction of second-degree murder. See Appellant’s Petition for a Motion to 

Dismiss/Discontinue/Vacate, and/or Vacate Conviction/Sentence and Remand 

for New Trial, 9/1/20, at 1-2 (unpaginated). This Court entered an order on 

September 18, 2020, accepting Appellant’s September 1st application for 

relief as a timely, pro se response to counsel’s no-merit letter.

Counsel’s no-merit letter addresses the following three claims:

I. Whether the [PCRA] court erred in dismissing the PCRA 

petition as untimely?

II. Whether the PCRA court erred in dismissing the PCRA 

petition without a hearing where [Appellant] alleged an exception 

to the timeliness requirement in claiming newly discovered 

evidence?[9]

III. Whether the PCRA court erred in summarily dismissing 

[Appellant’s] PCRA petition on the claim that his sentence was 

illegal regarding the offense of second-degree murder as he was 

never charged, nor was the Commonwealth’s evidence sufficient, 

regarding any underlying felony?

Finley Letter at 3.10

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9 We note that while counsel frames this issue as a challenge to the PCRA 

court’s failure to conduct an evidentiary hearing, it appears a hearing was 

conducted on September 30, 2019. See Finley Letter at 2 (“A hearing was 

held on September 30, 2019, at which time the PCRA court denied the . . . 

petition as untimely.”); PCRA Ct. Op., 4/9/20, at 2 (“At the conclusion of PCRA 

hearing on September 30, 2019, . . . Appellant’s second PCRA petition was 

denied as being untimely.”). 

10 We note the Commonwealth declined to file a brief on appeal. See 

Commonwealth’s Letter in Lieu of Brief, 10/19/20.
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Before addressing the merits of the issues identified in PCRA counsel’s 

no-merit letter, we must first determine if counsel complied with the 

procedural requirements for withdrawal. Muzzy, 141 A.3d at 510.

A Turner/Finley brief must: (1) detail the nature and extent of 

counsel’s review of the case; (2) list each issue the petitioner 

wishes to have reviewed; and (3) explain counsel’s reasoning for 

concluding that the petitioner's issues are meritless. Counsel 

must also send a copy of the brief to the petitioner, along with a 

copy of the petition to withdraw, and inform the petitioner of the 

right to proceed pro se or to retain new counsel. If the brief meets 

these requirements, we then conduct an independent review of 

the petitioner’s issues.

Commonwealth v. Knecht, 219 A.3d 689, 691 (Pa. Super. 2019) (citations 

omitted).

Here, PCRA counsel’s no-merit letter details the procedural history of 

Appellant’s case, including the fact that the current petition is Appellant’s

second request for collateral relief, and untimely. See Finley Letter at 1-4. 

Moreover, counsel lists the issues preserved in Appellant’s PCRA petition and 

Rule 1925(b) statement, and details why each claim is meritless. See id. at 

3-6. Furthermore, counsel also properly informed Appellant of his right to 

proceed pro se, or with privately retained counsel. Indeed, in order to 

preserve this right, counsel sought an extension of time for Appellant to file 

his pro se response. Accordingly, we conclude PCRA counsel properly 

complied with Turner/Finley and its progeny, and now proceed to an 

independent review of the issues raised on appeal. 

Our standard of review of an order denying PCRA relief is wellestablished. “[W]e examine whether the PCRA court’s determination ‘is 
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supported by the record and free of legal error.’” Commonwealth v. 

Mitchell, 141 A.3d 1277, 1283–84 (Pa. 2016) (citation omitted). 

Furthermore, “[t]he PCRA court’s findings will not be disturbed unless there is 

no support for the findings in the certified record.” Commonwealth v. Cruz, 

223 A.3d 274, 277 (Pa. Super. 2019) (citation omitted).

The statutory requirement that a PCRA petition 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), appeal denied, 216 A.3d 

1028 (Pa. 2019). See also 42 Pa.C.S. § 9545(b)(1). This includes a nonwaivable challenge to the legality of a petitioner’s sentence. See 

Commonwealth v. Hromek, 232 A.3d 881, 884 (Pa. Super. 2020) (“[W]hen 

a petitioner files an untimely PCRA petition raising a legality-of-sentence

claim, the claim is not waived, but the jurisdictional limits of the PCRA itself 

render the claim incapable of review.”) (citation omitted).

Here, Appellant’s judgment of sentence was final on March 27, 2016 —

90 days after the Pennsylvania Supreme Court denied allocatur review of 

Appellant’s direct appeal, and Appellant declined to petition the United States 

Supreme Court for a writ of certiorari. See 42 Pa.C.S. § 9545(b)(3) (for 

purpose of PCRA timeliness provisions, “a judgment becomes final at the 

conclusion of direct review, including discretionary review in the Supreme 

Court of the United States . . . or at the expiration of time for seeking the 
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review”); U.S. Sup. Ct. R. 13 (“[A] petition for a writ of certiorari to review a 

judgment in any case, . . . is timely when it is filed with the Clerk of this Court 

within 90 days after entry of the judgment.”). Accordingly, his current 

petition, filed more than three years later, is facially untimely. See 42 Pa.C.S. 

§ 9545(b)(1). 

Nevertheless, an untimely petition may be considered if one of the three 

timeliness exceptions applies. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). A petition 

invoking one of the exceptions must be filed “within one year of the date the 

claim could have been presented.” 42 Pa.C.S. § 9545(b)(2). In his pro se

petition, Appellant purports to invoke the newly discovered facts exception set 

forth at Section 9545(b)(1)(ii). See Appellant’s Second or Subsequent Post 

Conviction Collateral Relief at 2. In order to obtain relief pursuant to that 

subsection, a petitioner must plead and prove “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[.]” 42 Pa.C.S. § 9545(b)(2)(ii).

In his June 2019 pro se petition, Appellant asserts the alleged “unknown 

fact” was that “Commonwealth witness Crystal Hughes testified in exchange 

for a Nolle Pross [sic] of her then pending case[.]” Appellant’s Second or 

Subsequent Post Conviction Collateral Relief at 2. However, Appellant cannot 

establish this fact was previously unknown, or that he filed the present petition 

within one year of the date the claim could have been presented. Indeed, 

Appellant raised this same claim in his first PCRA petition filed in July of 2016. 

See Appellant’s Brief for Post Conviction Act Collateral Relief, 7/6/16, at 23-
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25. Moreover, during the March 27, 2017, hearing on that petition, Appellant’s 

then-PCRA counsel asked the PCRA court to take “judicial notice of the that 

that the charges against Crystal Hughes were nol-prossed by the 

Commonwealth before [the same trial court on] January 8, 2015.” N.T., 

3/28/17, at 29. Therefore, as of March 28, 2017 — at the latest — Appellant 

knew the charges pending against Hughes at the time of his trial in August of 

2014 had been dismissed in January of 2015. Accordingly, Appellant failed to 

establish the unknown facts exception to the time bar.

Next, we note Appellant does not contend his challenge to his felony 

murder conviction meets one of the PCRA timeliness exceptions. Even if he 

had, however, we would conclude the claim was previously litigated on direct 

appeal, and meritless. See 42 Pa.C.S. § 9543(a)(3) (in order to obtain relief, 

petitioner must plead and prove, inter alia, “the allegation of error has not 

been previously litigated or waived”); Brackbill, 1433 MDA 2014 (unpub. 

memo. at 8-10) (concluding evidence was sufficient to sustain conviction of 

second-degree murder, despite fact Appellant was not charged with 

underlying felony of robbery; jury was instructed on elements of robbery 

necessary to prove felony murder). 

Thus, because we agree with the finding of the PCRA court that 

Appellant’s PCRA petition was untimely filed, and Appellant failed to plead or 

prove the applicability of any of the PCRA’s timing exceptions, we affirm the 

order on appeal.

Order affirmed. Counsel’s petition to withdraw granted.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/23/2021