J-S22031-15 

*Retired Senior Judge assigned to the Superior Court. 

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37 

COMMONWEALTH OF PENNSYLVANIA, 

 Appellee 

 v. 

ALBERT LEE BROOKS, 

 Appellant 

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IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 No. 1706 WDA 2014 

 

Appeal from the PCRA Order Entered June 20, 2014, 

in the Court of Common Pleas of Lawrence County, 

Criminal Division, at No(s): CP-37-CR-0001069-2010 

BEFORE: PANELLA, LAZARUS, and STRASSBURGER,* JJ. 

MEMORANDUM BY STRASSBURGER, J.: FILED MAY 22, 2015 

 Albert Lee Brooks (Appellant) appeals from the order entered on June 

20, 2014, which denied his petition filed pursuant to the Post Conviction 

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm. 

 The background underlying this matter can be summarized as follows. 

Sergeant Robert Salem of the New Castle Police Department 

received information from several different sources that 

[Appellant] was selling marijuana from his residence and 

provided that [information] to Agent Brian Babusci of the 

Pennsylvania State Board of Probation and Parole. [Appellant] is 

a parolee under the supervision of Agent Babusci. Shortly 

thereafter, Agent Babusci contacted his supervisor and provided 

him with the information received from Sergeant Salem. The 

decision was made that Agent Babusci would search 

[Appellant’s] residence. On October 5, 2010, Agent Babusci 

made a field visit to [Appellant’s] residence located at 1318 

South Jefferson Street, New Castle, Lawrence County, 

Pennsylvania, and the agent was accompanied by Officer James 

Paglia of the New Castle Police Department, who was a member 

of the narcotics bureau. When the agent and the officer arrived 

at the residence, they were met by [Appellant’s] girlfriend, 
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Teresa Wright, as they exited their vehicle. Agent Babusci asked 

if [Appellant] was home and Ms. Wright answered in the 

affirmative. She also opened the door to the residence and 

permitted the officers to enter. It must be noted that Ms. Wright 

did not live at [Appellant’s] residence on the date of this 

incident. As they entered the residence, Agent Babusci observed 

[Appellant] sitting on a couch with a child. Agent Babusci then 

asked to speak with [Appellant] in the kitchen and [Appellant] 

complied. During their conversation, [Agent Babusci] revealed 

that he had information [Appellant] was selling marijuana and 

asked if there was any contraband in the residence. [Appellant] 

directed the agent toward a pantry where a small backpack was 

resting. The agent searched the backpack and he found 

numerous small sandwich baggies, two scales and a larger bag 

containing what the agent believed to be marijuana. There was 

also another bag with a similar substance in it. At that time, 

Agent Babusci stopped his search and provided the evidence to 

Officer Paglia, so that he could conduct a criminal investigation 

into the matter. 

[Appellant] was subsequently arrested and charged.... 

[Following trial, a jury convicted Appellant of possession of a 

controlled substance and possession of drug paraphernalia]. He 

was acquitted of the charges of [possession of a controlled 

substance with intent to deliver and possession of a small 

amount of marijuana]. [Appellant] was sentenced on September 

21, 2012, at which time he presented an oral Motion For 

Judgment Of Acquittal on the charge of [possession of a 

controlled substance], which was granted by the [c]ourt. 

[Appellant] was then sentenced to a term of incarceration of not 

less than six months nor more than twelve months.... 

On September 24, 2012, [Appellant] filed his Post-Trial 

Motions.... 

* * * 

Eventually, [the trial court] denied [Appellant’s] Post-Trial 

Motions on January 3, 2013.... 
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Commonwealth v. Brooks, 83 A.3d 1063 (Pa. Super. 2013) (unpublished 

memorandum at 1-3) (quoting Trial Court Opinion, 3/8/2013 at 1-4). On 

August 9, 2013, this Court affirmed Appellant’s judgment of sentence. 

Appellant did not petition the Supreme Court for allowance of appeal. 

 Appellant timely filed a pro se PCRA petition. Appointed counsel for 

Appellant, Gregory M. Rosatelli, Esquire, (Attorney Rosatelli) subsequently 

filed an amended PCRA petition. Therein, Appellant claimed that trial 

counsel rendered ineffective assistance by failing “to object to the [trial 

court’s] erroneous jury instruction when the [c]ourt stated that [Appellant] 

has been charged with unlawfully possessing marijuana and possessing 

heroin with the intent to sell.” Amended PCRA Petition, 1/24/2014, at ¶15. 

The PCRA court held an evidentiary hearing, and on June 20, 2014, the court 

denied the PCRA petition. 

 On July 9, 2014, Attorney Rosatelli filed a motion for leave to withdraw 

as counsel. According to this motion, Attorney Rosatelli informed Appellant 

that he did not intend to file an appeal of the order denying the PCRA 

petition. The PCRA court granted counsel’s motion the same day it was 

filed. 

 On July 23, 2014, the Public Defender’s Office of Lawrence County filed 

a petition for assignment of appeal counsel. Therein, the Public Defender’s 

Office stated that Appellant wished to appeal the order denying his PCRA 

petition but is unable to afford private counsel. The Public Defender’s Office 
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averred that its review of Appellant’s financial status revealed that he does 

not have sufficient funds to hire counsel. The Public Defender’s Office asked 

the PCRA court to appoint counsel to represent Appellant. The PCRA court 

granted this petition on the same day it was filed and appointed Carolyn 

Flannery, Esquire, (Attorney Flannery) to represent Appellant. 

 On August 19, 2014, Attorney Flannery filed a petition wherein she 

sought an order allowing Appellant to file a notice of appeal nunc pro tunc

from the order denying his PCRA petition. She amended that petition on 

September 22, 2014, and the PCRA court granted the petition on the day it 

was filed. The order allowed Appellant 30 days to file an appeal. Appellant 

filed a notice of appeal on October 17, 2014. 

 The PCRA court directed Appellant to comply with Pa.R.A.P. 1925(b). 

Appellant filed a 1925(b) statement, and the PCRA court subsequently filed 

an opinion in compliance with Pa.R.A.P. 1925(a). In his brief to this Court, 

Appellant asks us to consider the question that follows. 

Did the [PCRA] court err by denying Appellant’s PCRA relief as 

trial counsel provided ineffective assistance that so undermined 

the truth determining process that no reliable adjudication of 

guilt or innocence could have taken place where counsel failed to 

object to the trial court’s jury instruction that inaccurately stated 

that Appellant was charged with unlawfully possessing heroin 

with the intent to sell it when in fact Appellant was not charged 

with any crimes related to heroin but only marijuana? 

Appellant’s Brief at 4 (footnote omitted). Before we can address this issue, 

we must determine whether we have jurisdiction to entertain this appeal. 
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This Court may raise such an issue sua sponte. See Commonwealth v. 

Gandy, 38 A.3d 899, 902 (Pa. Super. 2012) (“As a threshold jurisdictional 

matter, however, the timeliness of the PCRA petition must be addressed. 

Even where neither party nor the PCRA court [has] addressed the matter, it 

is well-settled that we may raise it sua sponte since a question of timeliness 

implicates the jurisdiction of our Court.”) (citation and quotation marks 

omitted). 

 The PCRA court denied Appellant’s PCRA petition on June 20, 2014. In 

order to appeal that order in a timely fashion, Appellant had to file a notice 

of appeal within 30 days of the entry of the order. Pa.R.A.P. 903(a). 

Because the thirtieth day fell on a Sunday, Appellant had until July 21, 2014, 

to file timely a notice of appeal. Appellant did not file his notice of appeal 

until October 17, 2014. Thus, this appeal is facially untimely. 

 However, as we noted above, on August 19, 2014, Attorney Flannery 

filed a petition to reinstate Appellant’s right to appeal the order denying his 

PCRA petition. The PCRA court should have treated that petition as a PCRA 

petition. See Commonwealth v. Fairiror, 809 A.2d 396, 397 (Pa. Super. 

2002) (“[Fairior’s] January 8, 2001 petition for reinstatement of PCRA 

appellate rights nunc pro tunc must be considered a second [] PCRA 

petition.”). The question then becomes whether Appellant timely filed the 

petition to reinstate his right to appeal the order denying his PCRA petition. 

See id. (“Although [Commonwealth v. Hall, 771 A.2d 1232 (Pa. 2001)] 
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and [Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999)] dealt with the 

restoration of direct appeal rights, these cases teach that all requests for 

reinstatement of appellate rights, including PCRA appellate rights, must 

meet the timeliness requirements of the PCRA.”). 

Under the PCRA, all petitions must be filed within one year of the date 

that the petitioner’s judgment became final, unless one of three statutory 

exceptions applies. 42 Pa.C.S. § 9545(b)(1); Commonwealth v. Chester, 

895 A.2d 520, 522 (Pa. 2006). For purposes of the PCRA, a judgment 

becomes final at the conclusion of direct review. 42 Pa.C.S. § 9545(b)(3). 

“The PCRA’s time restrictions are jurisdictional in nature.” Chester, 895 

A.2d at 522. “Thus, ‘[i]f a PCRA petition is untimely, neither this Court nor 

the trial court has jurisdiction over the petition. Without jurisdiction, we 

simply do not have the legal authority to address the substantive claims.’” 

Id. (quoting Commonwealth v. Lambert, 884 A.2d 848, 851 (Pa. 2005)). 

 This Court affirmed Appellant’s judgment of sentence on August 9, 

2013. Appellant had 30 days from that date to seek allowance of appeal in 

the Supreme Court. Pa.R.A.P. 1113(a). The thirtieth day fell on a Sunday; 

thus, Appellant had until Monday, September 9, 2013, in order to seek 

review of his judgment of sentence. He did not do so. Consequently, for 

purposes of the PCRA, his judgment became final on September 9, 2013. 

Accordingly, Appellant had until September 9, 2014, in order to file 

timely a PCRA petition. Appellant filed his petition to reinstate his right to 
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appeal the order denying his PCRA petition on August 19, 2014. Thus, 

Appellant timely filed the petition. Moreover, the PCRA court granted that 

petition, the Commonwealth did not appeal the order, and Appellant timely 

filed a notice of appeal. We, therefore, conclude that we have jurisdiction to 

consider this appeal. 

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

examining whether the court’s rulings are supported by the evidence of 

record and free of legal error. Commonwealth v. Anderson, 995 A.2d 

1184, 1189 (Pa. Super. 2010). 

 At trial, Appellant’s drug-possession charges all stemmed from his 

alleged possession of marijuana. There were no allegations that he 

possessed or possessed with the intent to sell heroin. The trial court’s 

charge to the jury reflects that Appellant’s drug-possession charges were 

marijuana related, save for when the court stated, “In this case, [Appellant] 

is charged with possession of a controlled substance and a separate crime, 

possession with intent to sell a controlled substance, specifically, [Appellant] 

has been charged with unlawfully possessing marijuana and possessing 

heroin with the intent to sell it.” N.T., 7/18/2012, at 98. Appellant claims 

that trial counsel rendered ineffective assistance by failing to object to this 

misstatement. We disagree. 

“To establish ineffectiveness of counsel, a PCRA petitioner must show 

the underlying claim has arguable merit, counsel’s actions lacked any 
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reasonable basis, and counsel’s actions prejudiced the petitioner. Prejudice 

means that, absent counsel’s conduct, there is a reasonable probability the 

outcome of the proceedings would have been different.” Commonwealth 

v. Jones, 71 A.3d 1061, 1063 (Pa. Super. 2013) (citations omitted). 

The jury convicted Appellant of possession of a controlled substance 

and possession of drug paraphernalia. The court’s erroneous statement 

regarding heroin only could have arguably affected the possession-of-acontrolled-substance conviction. That conviction was reversed when the trial 

court granted Appellant’s motion for judgment of acquittal. Thus, to the 

extent the court’s misstatement had any impact on the outcome of the trial, 

that impact was eradicated when the court threw out Appellant’s possessionof-a-controlled-substance conviction. 

For these reasons, we conclude that Appellant is not entitled to PCRA 

relief and that the PCRA court properly denied Appellant’s PCRA petition. 

We, therefore, affirm the court’s order.1 

Order affirmed. 

 

1

 The manner in which we dispose of Appellant’s issue differs from that of 

the PCRA court; however, we may affirm a PCRA’s court decision on any 

ground supported by the record. See Commonwealth v. McKeever 947 

A.2d 782, 786 n.4 (Pa. Super. 2008) (“Although our rationale regarding the 

jurisdictional propriety of Appellant’s second PCRA petition differs from the 

PCRA court, we, as an appellate court, are empowered to affirm [the PCRA 

court's] decision on any ground without regard to the ground relied upon by 

[the PCRA court] itself.”) (citation and quotation marks omitted). 
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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 5/22/2015