J-S35021-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

ROBERT YOUNG 

Appellant No. 2983 EDA 2019

Appeal from the PCRA Order entered September 24, 2019

In the Court of Common Pleas of Philadelphia County

Criminal Division at No: CP-51-CR-0432331-1981

BEFORE: BOWES, J., STABILE, J., and COLINS, J.*

MEMORANDUM BY STABILE, J.: FILED OCTOBER 07, 2020

Appellant, Robert Young, appeals from the September 24, 2019 order 

entered in the Court of Common Pleas of Philadelphia County denying his 

petition for collateral relief filed pursuant to the Post Conviction Relief Act 

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. In addition, appointed counsel has 

filed a motion to withdraw pursuant to Commonwealth v. Finley, 550 A.2d 

213 (Pa. Super. 1988) (en banc). Upon review, we grant counsel’s motion to 

withdraw and affirm the PCRA court’s order.

In its Rule 1925(a) opinion, the PCRA court explained:

Appellant was convicted before the Honorable Juanita Kidd Stout1

following a jury trial of first-degree murder and other offenses on 

October 29, 1981. On June 9, 1982, Justice Stout imposed an 

aggregate sentence of life imprisonment on Appellant. These 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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charges stemmed from an incident that occurred on January 27, 

1981, during which Appellant and another man entered the home 

of Willie Smalls to commit a burglary. During the incident, Mr. 

Smalls was shot and killed. The incident was witnessed by fifteenyear old Carl Hankins, who knew the men prior to the incident. 

Mr. Hankins provided critical testimony against Appellant during 

the trial.

Following the imposition of sentence, Appellant filed a direct 

appeal to the Superior Court and when the Superior Court affirmed 

the judgment of sentence on May 25, 1984, he filed a petition for 

allowance of appeal that the Supreme Court denied on October 

19, 1984.

1

Justice Stout was thereafter appointed to the Pennsylvania Supreme Court.

PCRA Court Opinion, 1/16/20, at 1 (additional footnote omitted). 

Although not mentioned by the PCRA court, by counsel, or by Appellant, 

the record reflects that Appellant filed a petition for collateral relief in June 

1987 under the Post Conviction Hearing Act (“PCHA”), the PCRA’s predecessor 

statute. Counsel was appointed and the PCHA court conducted a hearing on 

February 28, 1989. On March 1, 1989, the PCHA court dismissed the petition 

as frivolous and permitted counsel to withdraw. The record does not reflect 

any further action in relation to the PCHA petition. 

In October 2013, Appellant filed the pro se PCRA petition that is at issue 

in this appeal. Because Appellant previously filed a PCHA petition, the instant 

petition is considered his second PCRA petition. See Commonwealth v. 

Karnicolas, 836 A.2d 940, 944-45 (Pa. Super. 2003) (citing Commonwealth 

v. Lewis, 718 A.2d 1262, 1263 (Pa. Super. 1998) (a PCHA petition is 

considered a first PCRA petition, unless the earlier petition served only to 
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reinstate direct appeal rights nunc pro tunc). In his current PCRA petition, 

Appellant asserted that witness Carl Hankins (“Hankins”) recanted his trial 

testimony and implicated another person as the person who shot and killed 

Mr. Smalls. Appellant provided two recantation affidavits from Hankins and 

indicated Hankins was willing to testify that Appellant was not the shooter. 

On August 6, 2014, the PCRA court issued a Rule 907 Notice of its 

intention to dismiss the petition. Counsel for Appellant entered his appearance 

on August 18, 2014, and requested that the court withdraw the Rule 907 

Notice and grant a continuance. The docket reflects entry of an order on 

August 20, 2014 granting the request to withdraw the Rule 907 Notice. 

On September 28, 2016, Appellant filed a counseled amended PCRA 

petition, contending the Hankins recantation affidavits constituted afterdiscovered evidence that satisfied an exception to the PCRA’s one-year time 

bar and that the petition was filed within 60 days of the date the claim could 

have been presented. See 42 Pa.C.S.A. § 9545(b)(1)(ii) and (2)1. Appellant 

argued an evidentiary hearing was warranted under Commonwealth v. 

D’Amato, 856 A.2d 806 (Pa. 2004). 

In response, the PCRA court scheduled an evidentiary hearing, which 

was continued on several occasions and was ultimately scheduled for July 11, 

2019. On that date, Appellant’s counsel advised the court that Hankins was 

____________________________________________

1 The provisions of Section 9545(b)(2) were subsequently amended, enlarging 

the 60-day period to one year.
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not willing to testify and that the defense had no evidence to present in 

support of the PCRA petition. 

On July 18, 2019, the court issued a Rule 907 Notice of its intent to 

dismiss the petition. Appellant filed a pro se response on July 30, 2019. 

Appellant requested that his petition not be dismissed “for the following legal 

[sic] binding reasons: The serving of an illegal sentence and a deficient Rule 

§ 907 notice.” Pro Se Response to Rule 907 Notice at 1. 

Regarding the claim of illegal sentence, we note that while a petitioner 

may raise claims of PCRA counsel ineffectiveness in response to a Rule 907 

Notice, “[t]his does not mean that a defendant may raise entirely new claims 

that he could have presented prior to his response to the notice of intent to 

dismiss.” Commonwealth v. Rykard, 55 A.3d 1177, 1189 n.8 (Pa. Super. 

2012). A legality of sentence claim could have been raised prior to Appellant’s 

response to the Rule 907 Notice. Moreover, “[a]lthough legality of sentence 

is always subject to review within the PCRA, claims must still first satisfy the 

PCRA’s time limits or one of the exceptions thereto.” Commonwealth v. 

Fahy, 737 A.2d 214, 223 (Pa. 1999). Appellant’s claim stems from a 

conviction that pre-dated the January 16, 1996 effective date of amendments 

to the PCRA. At the latest, the deadline for his claim was January 16, 1997. 

Commonwealth v. Fenati, 748 A.2d 205, 207 (Pa. 2000) (allowing 

petitioner whose judgment of sentence became final before January 16, 1996 

until January 16, 1997 to file a first PCRA petition). Appellant’s claim is 
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patently untimely and he has neither pleaded nor proven any exception to the 

statute’s timeliness requirements. The PCRA court lacked jurisdiction over a 

claim of illegal sentence. 

With regard to Appellant’s assertion of a deficiency in the Rule 907 

Notice, the PCRA court explained: 

This claim lacks merit because the [notice] this court provided to 

Appellant clearly advised him that his newly-discovered evidence 

issue lacked merit, which it did because the alleged witness failed 

to appear for the scheduled evidentiary hearing. In addition, 

PCRA counsel sent Appellant a letter dated July 12, 2019 . . . 

advis[ing] him that his witness failed to appear thereby letting 

Appellant know that he could not obtain relief on his newlydiscovered evidence claim because it could not be proved. 

Therefore, the 907 Notice was not defective and PCRA counsel was 

not ineffective. 

PCRA Court Opinion, 1/16/20, at 7.

Having rejected Appellant’s contentions regarding the Rule 907 Notice, 

the PCRA court dismissed the petition without a hearing on September 24, 

2019. This timely appeal followed. In the interim, the court granted counsel’s 

petition to withdraw and appointed new counsel for the appeal.2 Both the 

PCRA court and newly-appointed counsel complied with Pa.R.A.P. 1925, with 

counsel filing a statement in accordance with Pa.R.A.P. 1925(c)(4), advising 

____________________________________________

2 The PCRA court noted that Appellant could not afford counsel and that he 

was entitled to counsel on appeal from his first PCRA petition. PCRA Opinion, 

1/16/20, at 2. It appears the court was unaware of Appellant’s 1987 PCHA 

petition. 
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the court of his intent to file a Finley no-merit letter in lieu of a Rule 1925(b) 

statement. 

Counsel filed a Finley letter brief with this Court, explaining that 

Appellant’s proposed recantation witness refused to appear for a hearing, 

leading to the PCRA court’s dismissal of Appellant’s petition. Counsel 

presented two additional issues for our review, both of which were identified 

in his Rule 1925(c)(4) statement:

1. Appellant’s six charging documents that he has previously filed 

with the court related to another Robert Young and not to 

Appellant, the assigned homicide detective and/or prosecutor 

changed the date of birth of the other Robert Young to match 

Appellant, and Appellant was never informed of the two Robert 

Youngs in the case rendering it impossible for Appellant to 

place the blame elsewhere in violation of Appellant’s state and 

federal constitutional rights. 

2. The PCRA court erred in not fully considering Appellant’s 

response to 907 Notice and in dismissing Appellant’s PCRA 

petition when Appellant raised all claims of merit in the 907 

response that PCRA counsel had failed to raise before the PCRA 

court.

Letter Brief at 3, 6.

As this Court reiterated in Commonwealth v. Maddrey, 205 A.3d 323 

(Pa. Super. 2019):

Our review of a PCRA court’s decision is limited to examining 

whether the PCRA court’s findings of fact are supported by the 

record, and whether its conclusions of law are free from legal 

error. We view the findings of the PCRA court and the evidence 

of record in a light most favorable to the prevailing party. With 

respect to the PCRA court’s decision to deny a request for an 

evidentiary hearing, or to hold a limited evidentiary hearing, such 

a decision is within the discretion of the PCRA court and will not 

be overturned absent an abuse of discretion.
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Id. at 327 (quoting Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 

2015) (internal citations and quotations marks omitted)). 

Before we may consider the merits of Appellant’s issues, we must 

address whether counsel has met the Finley requirements for withdrawing as 

PCRA counsel. For PCRA counsel to withdraw under Finley in this Court: 

(1) PCRA counsel must file a no-merit letter that details the 

nature and extent of counsel’s review of the record; lists the 

appellate issues; and explains why those issues are meritless. 

(2) PCRA counsel must file an application to withdraw; serve the 

PCRA petitioner with the application and the no-merit letter; and 

advise the petitioner that if the Court grants the motion to 

withdraw, the petitioner can proceed pro se or hire his own lawyer. 

(3) This Court must independently review the record and agree 

that the appeal is meritless.

See Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa. Super. 2011) 

(citing or quoting Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), 

Finley, Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009), and 

Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2008), overruled in 

part by Pitts).

We find that PCRA counsel has complied with the Finley requirements. 

PCRA counsel filed an application to withdraw and a Finley no-merit letter 

brief, explaining that his review led him to conclude that Appellant’s PCRA 

issues were untimely and could not be substantiated at an evidentiary hearing. 

Finley Letter Brief, 2/18/20, at 1. Finally, PCRA counsel informed Appellant 
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of his right to hire a new lawyer or file a pro se response. We now address 

whether this appeal is indeed meritless.

Addressing Appellant’s first issue, in which he challenged his charging 

documents, the PCRA court determined no relief should be granted “because 

Appellant did not raise this claim in any of the filings reviewed by this court. 

Issues not raised before the lower court are waived and cannot be raised for 

the first time on appeal, pursuant to Pa.R.A.P. 302(a).” PCRA Court Opinion, 

1/16/20, at 3-4 (citations and some capitalization omitted). Further, 

Appellant’s claim could have been raised earlier but was not, resulting in 

waiver. Id. at 4 (citing 42 Pa.C.S.A. § 9544(b)). Moreover, the claim was 

time-barred and Appellant did not plead and prove any exception to the 

PCRA’s timeliness requirements. Id. at 4-5. 

We conclude that the PCRA court’s findings of fact are supported by the 

record and that the court’s conclusions are free from legal error. The only 

issue presented in Appellant’s amended PCRA petition related to recantation 

testimony. Appellant cannot raise an issue of defects in his charging 

documents based on “two Robert Youngs” for the first time on appeal. Any 

issue involving the identification of Appellant in charging documents could 

have been raised before trial, at trial, during unitary review, on appeal, or in 

his PCHA petition. The issue is waived. Further, as noted above, Appellant’s 

claim stems from a conviction that pre-dated the 1996 amendments to the 

PCRA and was subject to a deadline of January 16, 1997. His claim is patently 
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untimely and, again, he has neither pleaded nor proven any exception to the 

statute’s timeliness requirements. Appellant’s first issue fails.

The PCRA court likewise rejected Appellant’s second claim, first 

proposing the claim should be deemed waived for lack of specificity. In that 

claim, Appellant asserted PCRA counsel failed to raise issues that Appellant 

argued in his response to the PCRA court’s Rule 907 Notice. As indicated 

above, the PCRA court concluded Appellant’s claim lacked merit because the 

Rule 907 Notice clearly advised Appellant that Hankins’ failure to testify 

defeated the after-discovered evidence claim, as counsel explained in a letter 

to Appellant dated July 12, 2019. Therefore, even if Appellant’s second claim 

were not rejected for lack of specificity, the Rule 907 Notice was not defective 

and PCRA counsel was not ineffective. See PCRA Court Opinion, 1/16/20 at 

7. 

We note that Appellant filed with this Court a response to counsel’s 

Finley letter brief and motion to withdraw. In his response, Appellant 

asserted counsel’s filings failed to raise eleven new claims, ranging from illegal 

sentence to prosecutorial fraud to the lack of a second eyewitness to firstdegree murder. None of these claims were raised in Appellant’s pro se PCRA 

petition or in his amended petition. The sole claim raised by Appellant related 

to Hankins’ recantation testimony. For the reasons explained above, the PCRA 

court properly dismissed Appellant’s petition in light of Hankins’ failure to 

testify. Further, Appellant did not assert any claims in his response to the 
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Rule 907 Notice that would entitle him to relief. Finally, the issues raised in 

the Finley letter brief do not afford any basis for relief and Appellant’s 

response to that brief does nothing more than assert new time-barred claims 

over which this Court lacks jurisdiction under the PCRA. 

We conclude Appellant’s appeal is meritless. Therefore, we affirm the 

PCRA court’s September 24, 2019 order dismissing Appellant’s petition.

Counsel’s motion to withdraw granted. Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/7/2020