Com. v. Brackbill, B., Jr. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRYAN WAYNE BRACKBILL, JR. :
:
Appellant : 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 court-
appointed 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).
4Specifically, 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.”).
10We 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 well-
established. “[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 non-
waivable 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
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