J-S74035-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF 

PENNSYLVANIA

v.

BARTHANIEL TOUCHSTONE 

THORNTON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2301 EDA 2016

Appeal from the PCRA Order June 2, 2016

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

No(s): CP-51-CR-0014585-2008

BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.: FILED JANUARY 19, 2018

Appellant, Barthaniel Touchstone Thornton, appeals from the order 

entered June 2, 2016, dismissing as untimely his petition for collateral relief 

filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. 

We affirm.

On May 21, 2009, Appellant proceeded to a waiver trial and was found 

guilty of aggravated assault, firearms not be carried without a license, carrying 

firearms in public on the streets of Philadelphia, possession of an instrument 

of crime, simple assault, and recklessly endangering another person.1 On 

September 24, 2009, Appellant was sentenced to serve an aggregate term of 

fifteen to thirty years of incarceration. Appellant did not file a direct appeal.

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1 18 Pa.C.S. §§ 2702(a), 6106(a)(1), 6108, 907(a), 2701(a), and 2705.
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On February 11, 2011, Appellant filed a petition for writ of habeas corpus

with the Pennsylvania Supreme Court, which the court denied. See 

Commonwealth v. Thornton, 29 A.3d 1156 (Pa. 2011). 

On August 3, 2012, Appellant pro se filed a PCRA petition. In February 

2014, David Scott Rudenstein, Esq. was appointed as counsel.2In January 

2016, Mr. Rudenstein filed a Turner/Finley “no merit” letter and motion to 

withdraw.3 On April 29, 2016, Appellant filed a response in opposition. 

Upon consideration of Mr. Rudenstein’s Turner/Finley letter, the PCRA 

court issued Rule 907 notice of its intent to dismiss Appellant’s petition on May 

4, 2016. The Honorable Joan A. Brown accepted the Turner/Finley letter 

and dismissed Appellant’s petition on June 2, 2016. No action was taken on 

the motion to withdraw. Thereafter, this matter was transferred to the 

Honorable Leon W. Tucker.

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2 Appellant filed a series of supplemental pro se correspondences before and 

after counsel was appointed. “‘The Rules of Criminal Procedure contemplate 

that amendments to pending PCRA petitions are to be “freely allowed to 

achieve substantial justice,’ Pa.R.Crim.P. 905(A), but Rule 905 amendments 

are not ‘self-authorizing’ such that a petitioner may simply ‘amend’ a 

pending petition with a supplemental pleading.” Commonwealth v. Mason, 

130 A.3d 601, 653 n. 19 (Pa. 2015) (citing Commonwealth v. Porter, 35 

A.3d 4, 12 (Pa. 2012)). “[A]mendment is permitted only by direction or leave 

of the PCRA court.” Porter, 35 A.3d at 12. There is no indication that 

Appellant requested the PCRA court consider the amendments, nor any 

indication that the court granted Appellant leave to amend his initial PCRA 

petition. See Porter, supra.

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

Finley, 550 A.2d 213 (Pa. Super. 1988).
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On June 27, 2016, Appellant pro se filed a notice of appeal. During the 

pendency of the appeal, Judge Tucker undertook a separate review of the 

Turner/Finley letter. Thereafter, Judge Tucker sent a letter to this Court 

seeking remand for appointment of new counsel stating: “[W]e believe Mr. 

Thornton should be represented by counsel, as there may be substantive 

issues of merit that should be resolved on appeal.” Letter from Judge Tucker 

to Deputy Prothonotary of the Superior Court, 2/6/2017.

On February 22, 2017, this Court remanded the appeal to the PCRA 

court for thirty (30) days for a determination to resolve the lack of disposition

on the motion to withdraw filed by PCRA counsel, David Scott Rudenstein, 

Esq. See Pa. Super. Order, 2/22/2017. On May 3, 2017, Judge Tucker issued 

an order that permitted PCRA counsel to withdraw and appointed Michael P. 

Marryshow, Esq. to represent Appellant on appeal. See PCRA Ct. Order, 

5/3/2017. Mr. Marryshow filed a brief with this Court purporting to raise 

claims under the auspices of a direct appeal. This was error as the PCRA court 

never authorized Appellant to file a direct appeal nunc pro tunc.

Furthermore, “‘[a]mong the related but distinct rules which make up the 

law of the case doctrine’ is the rule that ‘upon transfer of a matter between 

trial judges of coordinate jurisdiction, the transferee trial court may not alter 

the resolution of a legal question previously decided by the transferor trial 

court.’” Commonwealth v. King, 999 A.2d 598, 600 (Pa. Super. 2010) 

(quoting Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995)). 
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The various rules which make up the law of the case doctrine not 

only serve to promote the goal of judicial economy (as does 

the coordinate jurisdiction rule) but also operate to (1) to protect 

the settled expectations of the parties; (2) to insure uniformity of 

decision; (3) to maintain consistency during the course of a single 

case; (4) to effectuate the proper and streamlined administration 

of justice; and (5) to bring litigation to an end.... The various 

policies which motivated the development of these rules and 

which continue to motivate the enduring existence of both 

the coordinate jurisdiction rule and the law of the case doctrine 

are of paramount importance in the context of a criminal 

proceeding where the criminal defendant and his counsel must be 

allowed to proceed to trial with an established trial strategy and 

with the security of knowing, for example, that he either will or 

will not be permitted to represent himself or that his pre-trial 

statements either will or will not be introduced against him at trial. 

In this regard, these rules seek to ensure fundamental fairness in 

the justice system by preventing a party aggrieved by one judge's 

interlocutory order to attack that decision by seeking and securing 

relief from a different judge of the same court, thereby forcing 

one's opponent to shift the focus of his trial strategy in the matter.

Commonwealth v. Santiago, 822 A.2d 716, 724 (Pa. Super. 2003)

(quoting Starr, 664 A.2d at 1331).

The PCRA court’s decision to dismiss on the basis of PCRA counsel’s 

Turner/Finley letter was akin to a disposition of a legal question. See Rule 

907 Notice, 5/4/2016. It is well-established that:

[w]hen “counsel determines that the issues raised under the 

PC[R]A are meritless, and when the PC[R]A court concurs, counsel 

will be permitted to withdraw and the petitioner may proceed pro 

se, or by privately retained counsel, or not at all.” Turner, 544

A.2d at 928-929 (emphasis added); see also Commonwealth v. 

Finley, 550 A.2d 213 215 (Pa. Super. 1988) (en banc) (“Once 

counsel for the petitioner determine that the issues raised under 

the PC[R]A are ‘meritless,’ and the PC[R]A court concurs, counsel 

will be permitted to withdraw and the petitioner may proceed on 

his own or with the aid of private counsel to pursue a review of 

the ruling entered, if he/she so wishes.” (citing Turner, supra) 

(emphasis added).
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We therefore conclude that, when counsel has been appointed 

to represent a petitioner in post-conviction proceedings as a 

matter of right under the rules of criminal procedure and when 

that right has been fully vindicated by counsel being permitted to 

withdraw under the procedure authorized in Turner, new counsel 

shall not be appointed and the petitioner, or appellant, must 

thereafter look to his or her own resources for whatever further 

proceedings there might be.

Commonwealth v. Maple, 559 A.2d 953, 956 (Pa. Super. 1989) (footnote 

omitted).

Judge Tucker’s decision to appoint Mr. Marryshow as appellate counsel 

was in direct conflict with the dismissal of Appellant’s petition based on a 

Turner/Finley letter and, curiously, Judge Tucker’s decision to permit Mr. 

Rudenstein to withdraw. Even if Judge Tucker did not agree with the initial 

determination of the PCRA court, Judge Tucker was barred from appointing 

appellate counsel by the coordinate jurisdiction rule. Id.; see also

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012). We note

further that, by appointing appellate counsel in a PCRA matter deemed by the 

PCRA court to be meritless, this violation of the coordinate jurisdiction rule

resulted in a waste of judicial resources. See Starr, 664 A.2d at 1331. 

Notwithstanding this error, we consider the brief filed by Mr. Marryshow 

on Appellant’s behalf. On appeal, Appellant raises the following issue: 

Did the trial court err in sentencing Appellant on a second strike 

mandatory minimum sentence without first providing Appellant’s 

complete record of previous convictions to Appellant?

Appellant's Br. at 3 (unnecessary capitalization removed).
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Essentially, Appellant challenges the legality of his sentence. According 

to Appellant, he was not provided with copies of his prior convictions or 

notified of the Commonwealth’s intent to seek the mandatory minimum of ten 

to twenty years of incarceration for aggravated assault. See Appellant's Br. 

at 8 (citing 42 Pa.C.S. § 9741(d)). 

Our standard of review of the denial of a PCRA petition is 

limited to examining whether the evidence of record supports the 

court's determination and whether its decision is free of legal 

error. This Court grants great deference to the findings of the 

PCRA court if the record contains any support for those 

findings. [A] petitioner is not entitled to a PCRA hearing as a 

matter of right; the PCRA court can decline to hold a hearing if 

there is no genuine issue concerning any material fact and the 

petitioner is not entitled to post-conviction collateral relief, and no 

purpose would be served by any further proceedings. A reviewing 

court on appeal must examine each of the issues raised in the 

PCRA petition in light of the record in order to determine whether 

the PCRA court erred in concluding that there were no genuine 

issues of material fact and in denying relief without an evidentiary 

hearing. 

Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa. Super. 2015), appeal 

denied, 136 A.3d 981 (Pa. 2016) (internal citations and quotation marks 

omitted).

Initially, we examine the timeliness of Appellant’s petition. Although 

illegal sentencing issues cannot be waived, they must be presented in a timely 

PCRA petition. Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa. Super. 

2013). As we have explained:

The filing mandates of the PCRA are jurisdictional in nature and 

are strictly construed. The question of whether a petition is timely 

raises a question of law. Where the petitioner raises questions of 

law, our standard of review is de novo and our scope of review 
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plenary. An untimely petition renders this Court without 

jurisdiction to afford relief.

A petition for relief under the PCRA must be filed within one 

year of the date the PCRA petitioner's judgment of sentence 

becomes final unless the petitioner alleges and proves that an 

exception to the one-year time-bar is met. 42 Pa.C.S. § 9545.

Taylor, 65 A.3d at 468 (citations omitted).

There are three exceptions:

(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 attempting to invoke these 

exceptions “shall be filed within 60 days of the date the claim could have been 

presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v. GamboaTaylor, 753 A.2d 780, 783 (Pa. 2000).

The instant PCRA petition was filed on August 3, 2012, more than three 

years after the judgment became final.4 Further, Appellant has neither 

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4 Appellant’s petition is patently untimely. Appellant’s judgment of sentence 

became final on October 26, 2009. The time for filing a PCRA petition seeking 

collateral review ended one year after the date the judgment of sentence 
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pleaded nor attempted to prove an exception to the time-bar in his PCRA 

petitions or in his brief. Consequently, the PCRA court was without jurisdiction 

to review the merits of Appellant’s claim and properly dismissed his petition 

without an evidentiary hearing. See Taylor, 65 A.3d at 468.5

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/19/2018

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became final, October 25, 2010. See 42 Pa.C.S. § 9545(b)(1). Thus, the 

petition was filed more than three years after the judgment became final.

5 Notwithstanding our lack of jurisdiction, we note briefly that Appellant’s claim 

is devoid of merit. The certified record contains Appellant’s written jury trial 

waiver colloquy, which serves as proof of his notice of the potential range of 

sentences for the crimes charged. See Jury Waiver Colloquy, at 3 (signed by 

District Attorney, Counsel, trial judge, and Appellant 5/21/2009). After 

conviction and before sentencing, Appellant was provided with notice of his 

prior record score, including twenty-seven Philadelphia arrests and one felonyrape conviction. See Notes of Testimony (N.T.), 5/21/2009, at 132. At that 

time, the court requested a presentence report and informed Appellant on the 

record that he had a second strike and a potential ten to twenty year sentence. 

Id. The statute merely requires “reasonable notice of the Commonwealth's 

intention to proceed under this section shall be provided after conviction and 

before sentencing[.]” 42 Pa.C.S. § 9714(d).