Com. v. Saleem, S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHARIEF SALEEM
Appellant No. 1081 EDA 2014
Appeal from the PCRA Order February 27, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006898-2007
BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 24, 2014
Sharief Saleem appeals pro se from the order entered in the Court of
Common Pleas of Philadelphia County dismissing his petition filed under the
Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. After our
review, we affirm.
On November 5, 2008, a jury convicted Saleem of Possession with
Intent to Deliver a Controlled Substance,1 Possession of an Instrument of
Crime,2 Carrying a Firearm Without a License,3 and Carrying Firearms on
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1
35 P.S. §§ 780–113(a)(30).
2
18 Pa.C.S. § 907(a).
3
18 Pa.C.S. § 6106.
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Public Streets or Public Property in Philadelphia.4 On February 5, 2009, the
court sentenced Saleem to an aggregate term of imprisonment of 8½ to 17
years. Saleem did not file a direct appeal.
On November 18, 2011, Saleem filed a pro se petition for relief under
the PCRA, claiming ineffective assistance of counsel and challenging the
length of his sentence. The PCRA court appointed counsel, and counsel
entered her appearance on January 26, 2012. Thereafter, Saleem filed two
amended pro se petitions, one on February 21, 2012, and another on August
7, 2012.5 Although these filings were docketed, the PCRA court does not
reference these amended pro se petitions in its opinion. It does not appear
that appointed counsel ever filed an amended PCRA petition on behalf of
Saleem. Instead, on March 5, 2013, counsel filed a petition to withdraw and
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4
18 Pa.C.S. § 6108.
5
In Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011), our Supreme
Court reiterated its “long-standing policy that precludes hybrid
representation.” Id. at 1036. While Jette involved a counseled appellant
attempting to proceed pro se on appeal, our Supreme Court has also
declared that “there is no constitutional right to hybrid representation . . .
at trial,” Commonwealth v. Ellis, 626 A.2d 1137, 1139 (1993), or during
PCRA proceedings. See Commonwealth v. Pursell, 724 A.2d 293, 302
(Pa. 1999) (applying Ellis rationale prohibiting hybrid representation to
PCRA proceedings, stating “[w]e will not require courts considering PCRA
petitions to struggle through the pro se filings of defendants when qualified
counsel represents those defendants”). Cf. Commonwealth v. Willis, 29
A.3d 393 (Pa. Super. 2011) (PCRA court accepted defendant’s pro se PCRA
petition despite fact that defendant was represented by counsel; this Court
concluded PCRA court erred in permitting such dual representation during
disposition of defendant’s PCRA petition).
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a “no-merit” letter pursuant to Commonwealth v. Turner, 544 A.2d 927(Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988)
(en banc).
In her no-merit letter, counsel stated that Saleem’s petition was
untimely under the PCRA, and that Saleem did not meet any of the
exceptions to the one-year time requirement.6 See No-Merit Letter,
3/5/2013, at 2-4. On April 19, 2013, Saleem filed a response to counsel’s
no-merit letter, stating that he was denied his constitutional right to appeal
and “denied his constitutional right to effective assistance of counsel by
direct appeal counsel.” Reply to No-Merit Letter, 4/19/13, at 2. The PCRA
court filed Rule 907 notice of intent to dismiss without a hearing. See
Pa.R.Crim.P. 907. Saleem did not respond to this notice, and the PCRA
court dismissed Saleem’s PCRA petition and granted counsel leave to
withdraw.7 This pro se appeal followed.
When examining a post-conviction court’s grant or denial of relief, we
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6
See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Saleem’s judgment of sentence
became final on March 7, 2009, the date on which his appeal period expired.
See Pa.R.A.P. 903. Saleem had one year, or until March 7, 2010, to file a
PCRA petition. His petition was filed on November 18, 2011, over one year
and eight months after his judgment of sentence became final.
7
See Commonwealth v. Hopfer, 965 A.2d 270, 271 (Pa. Super. 2009)
(PCRA court may not grant counsel’s request to withdraw from
representation or dismiss PCRA petition sooner than twenty days before
petitioner receives counsel’s official request for withdrawal).
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are limited to determining whether that court’s findings are supported by the
record and whether the court’s order is free of legal error. Commonwealth
v. Fears, 86 A.3d 795, 803 (Pa. 2014); Commonwealth v. Stark, 658
A.2d 816, 818 (Pa. Super. 1995). We review an order dismissing a petition
under the PCRA in the light most favorable to the prevailing party at the
PCRA level. Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa. Super.
2010).
“[Our] scope of review is limited to the findings of the PCRA
court and the evidence of record, viewed in the light most
favorable to the prevailing party at the PCRA court level.”
Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 131
(2012) (citation omitted). “The PCRA court’s credibility
determinations, when supported by the record, are binding on
this Court.” Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d
244, 259 (2011) (citation omitted). “However, this Court applies
a de novo standard of review to the PCRA court’s legal
conclusions.” Id.Commonwealth v. Medina, 92 A.3d 1210, 1214-15 (Pa. Super. 2014)
(en banc).
The Turner/Finley decisions provide the manner for post-conviction
counsel to withdraw from representation, mandating independent review of
the record by competent counsel before a PCRA court or appellate court can
authorize an attorney’s withdrawal. The necessary independent review
requires counsel to file a “no-merit” letter detailing the nature and extent of
his review and list each issue the petitioner wishes to have examined,
explaining why those issues are meritless. Commonwealth v. Rykard, 55
A.3d 1177, 1184 (Pa. Super. 2012); see also Commonwealth v. Pitts,
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981 A.2d 875 (Pa. 2009). The PCRA court, or an appellate court if the no-
merit letter is filed before it, then must conduct its own independent
evaluation of the record and agree with counsel that the petition is without
merit. See Turner, supra,
Here, counsel has complied with the directives of Turner/Finley.
Counsel listed the issues Saleem sought to raise (ineffectiveness of counsel
and legality of sentence), and after independent review determined that
Saleem’s petition was untimely and that he did not meet any of the three
exceptions to the time bar. No-Merit Letter, supra at 2. Our Supreme
Court has ruled unequivocally that when a PCRA petition is untimely on its
face and does not qualify for any of the exceptions to the timing
requirements of the PCRA, the petition must be dismissed without
addressing the merits of any claims raised therein. See Commonwealth v.
Fahy, 737 A.2d 214, 222 (Pa. 1999); Commonwealth v. Yarris, 731 A.2d
581, 587 (Pa. 1999).
After our review, we find no error. Saleem claims direct appeal
counsel, James F. Egan, Esq., was retained on February 9, 2009 to file an
appeal, and he avers that counsel “passed away without filing a direct
appeal[.]” Appellant’s Brief, at 7. Saleem includes an obituary for Attorney
Egan, indicating his death occurred on April 23, 2012. Attorney Egan’s
death, however, occurred after the filing of Saleem’s PCRA petition, and his
attempt to bring this within the after-discovered evidence exception fails.
Further, counsel’s failure to file an appeal is not a defense where the
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petitioner could have determined through reasonable means whether an
appeal was filed. See Commonwealth v. Carr, 768 A.2d 1164 (Pa. Super.
2001) (trial counsel's failure to file direct appeal was discoverable with due
diligence during petitioner's one-year period to file timely PCRA petition;
after-discovered evidence exception to PCRA timeliness requirements did not
apply).
Counsel explained in her no-merit letter the reasons why Saleem did
not qualify for any of the exceptions to the time requirement. The PCRA
court certified in both its Rule 907 notice and its final order that it reviewed
the record and agreed with counsel's no-merit letter. This complies with the
directives of Finley. See Pa.R.Crim.P. 907 Notice, 1/29/14; Order,
2/27/14.
We agree with the PCRA court that Saleem’s petition is facially
untimely and it does not fall within any of the exceptions to the time bar.
We, therefore, affirm the PCRA court’s order dismissing Saleem’s petition
and granting counsel’s request to withdraw.8
Order affirmed.
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8
We grant Saleem’s Application for Post-Submission Communication filed
December 12, 2014, and strike the Commonwealth’s brief as untimely filed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/24/2014
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