J-S32020-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JIMEL KING : : Appellant : No. 1891 EDA 2023
Appeal from the PCRA Order Entered June 22, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0007769-2015
BEFORE: LAZARUS, P.J., STABILE, J., and KING, J.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 15, 2024
Appellant, Jimel King, appeals from an order dismissing his petition for
relief under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546, without
a hearing. We affirm.
On June 17, 2015, Appellant became enraged at the victim, Arielle
Banks, because she stopped answering his phone calls. After encountering
her on the street, he fired a gun at her over a dozen times while she attempted
to flee, striking her in the foot, lower back, and hip. Appellant was convicted
of, inter alia, attempted murder, conspiracy, and a firearms violation. He was
sentenced to an aggregate term of thirty-five to seventy years of
imprisonment followed by five years of probation. The term of imprisonment
included an enhanced penalty under 18 Pa.C.S.A. § 1102(c) for an attempted
murder from which serious bodily injury results. J-S32020-24
On appeal, this Court vacated the firearms conviction but otherwise
affirmed. Appellant sought allowance of appeal, which was granted. Appellant
argued that his due process rights were violated because, despite being well
aware of the fact, he had not received formal notice that he was subject to a
Section 1102(c) enhancement in the bills of information. The Pennsylvania
Supreme Court agreed but determined that the error was harmless beyond a
reasonable doubt. Commonwealth v. King, 234 A.3d 549, 563-66 (Pa.
2020). The Court remanded however, for resentencing on the ground that
Appellant should not have received separate penalties for attempted murder
and conspiracy. Id. at 568-72.
On remand, Appellant was resentenced to an aggregate term of twenty-
seven and a half to fifty-five years of imprisonment. He filed a post-sentence
motion, which was denied. He did not file a second direct appeal.
Appellant filed a timely PCRA petition raising seven claims of error. The
court appointed new counsel to represent Appellant, and counsel filed a no
merit letter on October 24, 2022. The PCRA court issued a notice of intent to
dismiss Appellant’s petition under Pa.R.Crim.P. 907. Appellant filed a
response alleging that PCRA counsel had failed to communicate with him. He
also supplemented his claims of error by adding some details, including an
averment that trial counsel had been ineffective for failing to provide notice of
an alibi defense. The court ordered PCRA counsel to prepare an amended “No
Merit Letter, or amended PCRA Petition if warranted.” PCRA Court Order,
12/12/22.
-2- J-S32020-24
On May 26, 2023, PCRA counsel filed a revised no merit letter, which he
also sent to Appellant, explaining that he had spoken with Appellant and
repeatedly written to him requesting information on potential alibi witnesses
without receiving a reply. Counsel further alleged that, after reviewing the
docket sheet, all relevant transcripts, and the trial and appellate court
opinions, he concluded that the claims raised in Appellant’s petition had no
merit. Counsel explained why he had reached that conclusion with respect to
each claim. He also noted that he had explored other potential claims but to
no avail. He informed Appellant that he was seeking to withdraw as counsel
and that, if the request was granted, Appellant would be free to retain new
counsel or proceed pro se. The PCRA court issued a second Rule 907 notice,
attaching counsel’s revised no merit letter.
On June 7, 2023, Appellant filed a 1½ page response to the second Rule
907 notice arguing that he had, in fact, replied to PCRA counsel’s request for
information. He admitted, however, that his prospective alibi witness was
dead. He also reattached his prior filings but raised no additional claims.
On June 22, 2023, the PCRA court dismissed Appellant’s petition before
receiving Appellant’s June 7, 2023, response. On July 11, 2023, Appellant
filed a pro se notice of appeal. On July 13, 2023, the PCRA court vacated its
order of dismissal in order to consider Appellant’s June 7, 2023, response. On
September 11, 2023, having reviewed this response, the PCRA court again
entered an order dismissing Appellant’s petition.
-3- J-S32020-24
On December 20, 2023, after receiving responses from the parties and
trial court to an order to show cause from this Court, we vacated the PCRA
court’s July 13, 2023 and September 11, 2023 orders as legal nullities because
they had been entered after Appellant filed his pro se notice of appeal. Rule
of Appellate Procedure 1701(a) provides, subject to exceptions not relevant
here, that a lower court cannot proceed further in the matter once an appeal
is taken. Accordingly, by order dated December 20, 2023, we directed that
this matter would proceed before us as of July 11, 2023, the date of the pro
se notice of appeal.
On February 20, 2024, without directing Appellant to file a Pa.R.A.P.
1925 statement, the PCRA court entered a memorandum opinion explaining
its reasons for dismissing Appellant’s petition.
We first address counsel's application to withdraw. In order for PCRA
counsel to withdraw under Turner/Finley:1
(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. ____________________________________________
1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988).
-4- J-S32020-24
(3) This Court must independently review the record and agree that the
appeal is meritless.
Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa. Super. 2011).
Here, PCRA counsel substantially complied with the above requirements.
On May 26, 2023, counsel filed a revised no-merit letter that detailed his
review of the record, listed a series of issues and explained why the issues
were meritless. The revised no-merit letter also included counsel’s request to
withdraw from the case and stated that if the court granted counsel leave to
withdraw, Appellant could proceed pro se or hire his own attorney. The end
of the letter stated that Appellant was “cc’d,” indicating that counsel served
Appellant with the letter. The record demonstrates that Appellant received
the letter, since Appellant filed a response to the letter on June 7, 2023.
Having concluded that counsel substantially complied with
Turner/Finley, we will conduct an independent review of the record to
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J-S32020-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JIMEL KING : : Appellant : No. 1891 EDA 2023
Appeal from the PCRA Order Entered June 22, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0007769-2015
BEFORE: LAZARUS, P.J., STABILE, J., and KING, J.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 15, 2024
Appellant, Jimel King, appeals from an order dismissing his petition for
relief under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546, without
a hearing. We affirm.
On June 17, 2015, Appellant became enraged at the victim, Arielle
Banks, because she stopped answering his phone calls. After encountering
her on the street, he fired a gun at her over a dozen times while she attempted
to flee, striking her in the foot, lower back, and hip. Appellant was convicted
of, inter alia, attempted murder, conspiracy, and a firearms violation. He was
sentenced to an aggregate term of thirty-five to seventy years of
imprisonment followed by five years of probation. The term of imprisonment
included an enhanced penalty under 18 Pa.C.S.A. § 1102(c) for an attempted
murder from which serious bodily injury results. J-S32020-24
On appeal, this Court vacated the firearms conviction but otherwise
affirmed. Appellant sought allowance of appeal, which was granted. Appellant
argued that his due process rights were violated because, despite being well
aware of the fact, he had not received formal notice that he was subject to a
Section 1102(c) enhancement in the bills of information. The Pennsylvania
Supreme Court agreed but determined that the error was harmless beyond a
reasonable doubt. Commonwealth v. King, 234 A.3d 549, 563-66 (Pa.
2020). The Court remanded however, for resentencing on the ground that
Appellant should not have received separate penalties for attempted murder
and conspiracy. Id. at 568-72.
On remand, Appellant was resentenced to an aggregate term of twenty-
seven and a half to fifty-five years of imprisonment. He filed a post-sentence
motion, which was denied. He did not file a second direct appeal.
Appellant filed a timely PCRA petition raising seven claims of error. The
court appointed new counsel to represent Appellant, and counsel filed a no
merit letter on October 24, 2022. The PCRA court issued a notice of intent to
dismiss Appellant’s petition under Pa.R.Crim.P. 907. Appellant filed a
response alleging that PCRA counsel had failed to communicate with him. He
also supplemented his claims of error by adding some details, including an
averment that trial counsel had been ineffective for failing to provide notice of
an alibi defense. The court ordered PCRA counsel to prepare an amended “No
Merit Letter, or amended PCRA Petition if warranted.” PCRA Court Order,
12/12/22.
-2- J-S32020-24
On May 26, 2023, PCRA counsel filed a revised no merit letter, which he
also sent to Appellant, explaining that he had spoken with Appellant and
repeatedly written to him requesting information on potential alibi witnesses
without receiving a reply. Counsel further alleged that, after reviewing the
docket sheet, all relevant transcripts, and the trial and appellate court
opinions, he concluded that the claims raised in Appellant’s petition had no
merit. Counsel explained why he had reached that conclusion with respect to
each claim. He also noted that he had explored other potential claims but to
no avail. He informed Appellant that he was seeking to withdraw as counsel
and that, if the request was granted, Appellant would be free to retain new
counsel or proceed pro se. The PCRA court issued a second Rule 907 notice,
attaching counsel’s revised no merit letter.
On June 7, 2023, Appellant filed a 1½ page response to the second Rule
907 notice arguing that he had, in fact, replied to PCRA counsel’s request for
information. He admitted, however, that his prospective alibi witness was
dead. He also reattached his prior filings but raised no additional claims.
On June 22, 2023, the PCRA court dismissed Appellant’s petition before
receiving Appellant’s June 7, 2023, response. On July 11, 2023, Appellant
filed a pro se notice of appeal. On July 13, 2023, the PCRA court vacated its
order of dismissal in order to consider Appellant’s June 7, 2023, response. On
September 11, 2023, having reviewed this response, the PCRA court again
entered an order dismissing Appellant’s petition.
-3- J-S32020-24
On December 20, 2023, after receiving responses from the parties and
trial court to an order to show cause from this Court, we vacated the PCRA
court’s July 13, 2023 and September 11, 2023 orders as legal nullities because
they had been entered after Appellant filed his pro se notice of appeal. Rule
of Appellate Procedure 1701(a) provides, subject to exceptions not relevant
here, that a lower court cannot proceed further in the matter once an appeal
is taken. Accordingly, by order dated December 20, 2023, we directed that
this matter would proceed before us as of July 11, 2023, the date of the pro
se notice of appeal.
On February 20, 2024, without directing Appellant to file a Pa.R.A.P.
1925 statement, the PCRA court entered a memorandum opinion explaining
its reasons for dismissing Appellant’s petition.
We first address counsel's application to withdraw. In order for PCRA
counsel to withdraw under Turner/Finley:1
(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. ____________________________________________
1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988).
-4- J-S32020-24
(3) This Court must independently review the record and agree that the
appeal is meritless.
Commonwealth v. Widgins, 29 A.3d 816, 817-18 (Pa. Super. 2011).
Here, PCRA counsel substantially complied with the above requirements.
On May 26, 2023, counsel filed a revised no-merit letter that detailed his
review of the record, listed a series of issues and explained why the issues
were meritless. The revised no-merit letter also included counsel’s request to
withdraw from the case and stated that if the court granted counsel leave to
withdraw, Appellant could proceed pro se or hire his own attorney. The end
of the letter stated that Appellant was “cc’d,” indicating that counsel served
Appellant with the letter. The record demonstrates that Appellant received
the letter, since Appellant filed a response to the letter on June 7, 2023.
Having concluded that counsel substantially complied with
Turner/Finley, we will conduct an independent review of the record to
determine whether the present appeal is meritless.
Appellant raises the following issues in this appeal:
1. DID THE PCRA COURT ERR DENYING PCRA PETITION WITHOUT ALLOWING PETITION TO [BE] AMENDED?
2. DID PCRA COURT ERR DENYING PCRA PETITION WITHOUT ADDRESSING OTHER PCRA ISSUES?
3. DID PCRA COURT ERR ALLOWING PCRA COUNSEL TO WITHDRAW WITHOUT AMENDING PCRA PETITION?
Appellant’s Brief at iv.
-5- J-S32020-24
Appellant argues that the PCRA court erred by denying his petition
without allowing him to amend it. We disagree. In October 2022, PCRA
counsel filed a no merit letter, and the PCRA court issued a notice of intent to
dismiss Appellant’s petition without a hearing. When Appellant objected to
the notice of intent, the PCRA court ordered counsel to conduct further review.
Counsel prepared a revised no merit letter explaining, inter alia, that Appellant
failed to supply him with any useful information with respect to a potential
alibi. The PCRA court issued a second notice of intent to dismiss Appellant’s
petition. Although Appellant objected to the revised no merit letter, Appellant
raised no new claims. Instead, he admitted that his sole prospective alibi
witness was dead. Accordingly, no further proceedings were necessary.
Appellant cites Pa.R.Crim.P. 905(a), which provides that a “judge may
grant leave to amend or withdraw a petition for post-conviction relief at any
time.” Pa.R.Crim.P. 905(a). That language confirms, however, that the
decision whether to allow amendment is subject to the court’s discretion.
Commonwealth v. Keaton, 45 A.3d 1050, 1059 n.3 (Pa. 2012). Although
amendments are freely allowed to achieve substantial justice, Appellant had
no absolute right to amend his petition, as he seems to suggest. Here,
Appellant presented no valid ground for amending his petition, since his
response to the revised no merit letter failed to raise any new claims and
admitted that his sole possible alibi witness was dead.
-6- J-S32020-24
Next, Appellant argues that the PCRA court’s June 22, 2023, order of
dismissal was premature, because the court dismissed his petition before
becoming aware of his June 7, 2023 response to the May 30, 2023 notice of
intent to dismiss. This claim does not warrant relief. Consideration of the
June 7, 2023 response would not have changed the outcome in this case,
because (1) Appellant did not raise new claims in this response and (2)
Appellant effectively conceded that his claim of ineffective assistance due to
counsel’s alleged failure to raise an alibi defense was meritless because his
sole prospective alibi witness was dead.
Finally, Appellant contends that the PCRA dismissed his petition without
addressing issues other than his alibi claim. We disagree. The PCRA court’s
May 30, 2023, notice stated that it intended to dismiss the petition for the
reasons cited by counsel in his revised Finley letter, which the court attached.
Counsel’s letter discussed Appellant’s other claims. See Commonwealth v.
Ousley, 21 A.3d 1238, 1246 (Pa. Super. 2011) (notice of intent to dismiss
stating that petition would be dismissed “for the reasons discussed in counsel’s
no-merit letter” was adequate). Further, the PCRA court satisfactorily
addressed all of Appellant’s claims in its February 20, 2024, opinion. Finally,
Appellant fails to explain in his brief how the court’s discussion of any of these
issues was erroneous.
For these reasons, we affirm the order dismissing Appellant’s PCRA
petition.
-7- J-S32020-24
Order affirmed.
Date: 11/15/2024
-8-