Com. v. Robertson, J.

Opinion

J-S10030-26

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMEY C. ROBERTSON : : Appellant : No. 313 MDA 2025 :

Appeal from the PCRA Order Entered January 29, 2025 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR-0001791-2002

BEFORE: DUBOW, J., BECK, J., and BENDER, P.J.E.

MEMORANDUM BY BECK, J.: FILED: JULY 24, 2026

Jamey C. Robertson (“Robertson”) appeals from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 Robertson’s

counsel, Attorney Brandy G. Hoke (“Counsel”), has filed a petition to withdraw

representation and an accompanying brief in accordance with

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

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). After review, we grant

Counsel’s petition to withdraw and affirm the order.

This Court previously set forth the relevant underlying facts:

On October 17, 1999, Robertson entered a pizza shop, demanded money, and repeatedly stabbed an employee. A jury convicted Robertson on August 7, 2003, of criminal attempt – homicide, aggravated assault, robbery, possessing an instrument ____________________________________________

1 42 Pa.C.S. §§ 9541-9546. J-S10030-26

of crime, and recklessly endangering another person. The trial court sentenced Robertson on September 17, 2003, to an aggregate term of 30 to 60 years’ imprisonment. This Court affirmed the judgment of sentence on April 26, 2005[,] and Robertson did not file a petition for allowance of appeal with the Pennsylvania Supreme Court. See Commonwealth v. Robertson, 874 A.2d 1200 (Pa. Super. 2005).

Robertson timely filed his first PCRA petition. The PCRA court appointed counsel, who filed several amended petitions. The PCRA court denied Robertson’s petition on June 30, 2008. This Court affirmed on September 16, 2009, and our Supreme Court denied allowance of appeal on April 12, 2010. See Commonwealth v. Robertson, 986 A.2d 1263 (Pa. Super. 2009) (unpublished memorandum) at 1-8, appeal denied, 992 A.2d 888 (Pa. 2010).

After Robertson filed several additional unsuccessful PCRA petitions, he filed [] his fifth, on March 13, 2019. In his petition, Robertson acknowledged that his petition was untimely but claimed that he had discovered new facts that rendered his petition timely. To that end, Rober[t]son asserted that a letter he received from Leon Iverson [(“Iverson”)], a fellow inmate, detailed previously unknown exculpatory information. Iverson stated in the letter that he had spoken to his aunt, Shenita Allen [(“Allen”)], a witness in Robertson’s trial, and Allen admitted that she lied to police about a jacket allegedly belonging to Robertson. The jacket she was allegedly referring to was an important piece of evidence at trial, because the jacket contained the victim’s blood.

Commonwealth v. Robertson, 253 A.3d 251, *1 (Pa. Super. 2021) (non-

precedential decision) (citation, brackets, and ellipses omitted, footnote

added).

The PCRA court scheduled a hearing on Robertson’s fifth PCRA petition

on March 5, 2020. Prior to the hearing, Robertson requested discovery of all

documents related to Allen. Robertson received the discovery documents,

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including police reports from the Commonwealth, on February 26, 2020. After

receiving discovery, Robertson did not seek to amend his petition.

Ultimately, the PCRA court denied Robertson’s fifth PCRA petition as

untimely on March 6, 2020. This Court affirmed, finding it untimely and that

he failed to plead and prove why he reasonably could not have learned the

new “fact” regarding the coat earlier. See id. The Pennsylvania Supreme

Court denied allowance of appeal on November 2, 2021. Commonwealth v.

Robertson, 266 A.3d 440 (Pa. 2021).

On November 22, 2021, Robertson pro se filed a petition for writ of

habeas corpus, his second, in the United States District Court of the Middle

District of Pennsylvania, alleging the Pennsylvania courts’ dismissal of his fifth

PCRA petition violated his rights under the United States Constitution and

federal law. See Robertson v. Pennsylvania, 2022 WL 4238094 at *1 (M.D.

Pa. 2022). On September 14, 2022, the district court found that it was without

jurisdiction to consider Robertson’s second habeas corpus petition because of

his failure to seek and receive permission from the Third Circuit Court of

Appeals to file a second habeas petition. Id. at *2. The court transferred the

matter to the Third Circuit Court of Appeals. Id. at *3. The Third Circuit

precluded Robertson from obtaining review.

On October 10, 2023, Robertson pro se filed a sixth PCRA petition,

claiming, inter alia, that the Commonwealth withheld evidence in the form of

police reports obtained during discovery on his fifth PCRA petition, which

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provided witness statements describing the suspect differently than presented

at trial. Subsequently, the PCRA court appointed Counsel to represent

Robertson, who filed an amended PCRA petition. In the amended petition,

Robertson invoked the governmental interference and newly-discovered facts

exceptions to the PCRA’s time bar, claiming as support that the police reports

obtained during contained witness statements, which were not provided to

him at the time of trial. According to Robertson, the new evidence would have

supported Robertson’s theory that he did not commit the crimes and changed

the outcome of the case.

On October 3, 2024, the PCRA court conducted a hearing only on the

timeliness of Robertson’s sixth PCRA petition. Following this hearing, the

PCRA court directed the parties to file post-hearing briefs. On December 10,

2024, Robertson filed a pro se seventh PCRA petition. On December 17, 2024,

the PCRA court declared its intent to deny Robertson’s sixth PCRA petition

without a hearing pursuant to Pa.R.Crim.P. 907. On December 19, 2024, the

PCRA court issued a separate notice of its intent to deny Robertson’s seventh

PCRA petition without a hearing, as it raised the same claim as raised in the

sixth PCRA petition. Subsequently, the PCRA court entered an order

dismissing the sixth and seventh PCRA petitions as untimely filed. Robertson

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filed a notice of appeal.2 On August 10, 2025, Robertson’s counsel filed a no-

merit letter brief and a motion to withdraw as counsel pursuant to Turner/

Finley.

Before addressing the merits of Robertson’s PCRA claim, we must

consider whether Counsel satisfied the technical requirements of

Turner/Finley. See Commonwealth v. Muzzy, 141 A.3d 509, 510 (Pa.

Super. 2016).

To be permitted to withdraw from PCRA representation, counsel “must review the case zealously. Turner/Finley counsel must then submit a “no-merit” letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel’s diligent review of the case, listing the issues which petitioner wants to have reviewed, explaining why and how those issues lack merit, ____________________________________________

2 The PCRA court denied the PCRA petition on January 29, 2025. The instant notice of appeal was docketed on March 3, 2025, which was untimely. See Pa.R.A.P. 903(a) (“the notice of appeal … shall be filed within 30 days after the entry of the order from which the appeal is taken.”); Pa.R.A.P. 105(b) (“an appellate court … may not enlarge the time for filing a notice of appeal”). This Court entered an Order directing Counsel to show cause why the appeal should not be quashed as untimely. Order, 5/20/2025. Counsel filed a response, noting that counsel timely PACFiled the notice of appeal on February 28, 2025, but the notice was returned as rejected. Accordingly, this Court discharged the rule on June 23, 2025.

We decline to quash Robertson’s appeal, as Counsel timely submitted a notice of appeal, even though it was subsequently rejected, as the initial rejection did not affect the validity of the appeal. See Commonwealth v. Shelton, 2023 WL 5097214 **3-5 (Pa. Super. Aug. 9, 2023) (non- precedential decision) (declining to quash appeal where a notice of appeal was timely submitted electronically through PACFile, but was ultimately rejected, noting the “[f]ailure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is subject to such action as the appellate court deems appropriate”) (citation omitted); see also Pa.R.A.P. 126(b) (stating non-precedential decisions filed after May 1, 2019, may be cited for persuasive authority).

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and requesting permission to withdraw. Counsel must also send to the petitioner: (1) a copy of the “no merit’ letter/brief; (2) a copy of counsel’s petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel. Where counsel submits a petition and no-merit letter that satisfy the technical demands of Turner/Finley,… this Court [] must then conduct its own review of the merits of the case. If the [C]ourt agrees with counsel that the claims are without merit, the [C]ourt will permit counsel to withdraw and deny relief.

Id. at 510-11 (citations omitted and formatting altered).

Here, in the Turner/Finley brief, Counsel describes the nature and

extent of her review, identifies the issue that Robertson seeks to raise, and

explains why the issue lacks merit. Additionally, Counsel provided Robertson

notice of her intention to withdraw from representation, a copy of the

Turner/Finley brief and petition to withdraw as counsel and advised

Robertson of his immediate right to proceed pro se or with private counsel in

lieu of his representation. Petition to Withdraw, 8/10/2025, at 2

(unnumbered). Accordingly, we conclude that Counsel has complied with the

requirements necessary to withdraw under Turner/Finley.

Counsel raises the following question for our review: “Whether the

[PCRA c]ourt erred in denying [Robertson’s] amended PCRA petition … for

being untimely and not satisfying an exception to the one-year time period for

PCRA purposes.” Turner/Finley Brief at 6. Robertson filed a pro se response,

raising various ineffective assistance of counsel claims against Counsel and

prior PCRA counsel, legality of sentencing claim, and a claim seeking testing

of evidence. Pro Se Response at 1-3.

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Initially, we note that the PCRA court addressed and denied Robertson’s

pro se seventh PCRA petition, which raised the same claims as the sixth

petition, despite the fact he was represented by Counsel at the time he filed

the seventh petition. Generally, a pro se filing by a party who is represented

by counsel is considered to be a legal nullity, as the filing constitutes improper

hybrid representation. Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010);

see also Commonwealth v. Pursell, 724 A.2d 293, 302 (Pa. 1999) (“We

will not require courts considering PCRA petitions to struggle through the pro

se filings of defendants when qualified counsel represent those defendants.”).

Because Counsel remained counsel of record in the case at the time Robertson

filed his seventh PCRA petition, the PCRA court should have treated this

petition as a nullity. See Ali, 10 A.3d at 293. Thus, we will only address

Robertson’s sixth PCRA petition.

The sole claim raised in the Turner/Finley brief claims error by the

PCRA court in finding that Roberton’s sixth petition was untimely filed and

failed to establish an exception to the time bar. “The timeliness requirement

for PCRA petitions is mandatory and jurisdictional in nature, and the court may

not ignore it in order to reach the merits of the petition.” Commonwealth

v. Brown, 141 A.3d 491, 499 (Pa. Super. 2016) (quotation marks and citation

omitted); see also Commonwealth v. Fantauzzi, 275 A.3d 986, 994 (Pa.

Super. 2022) (noting “the timeliness of a PCRA petition is jurisdictional and

that if the petition is untimely, courts lack jurisdiction over the petition and

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cannot grant relief”). The timeliness of a PCRA petition is a question of law

for which our standard of review is de novo and our scope of review is plenary.

Commonwealth v. Callahan, 101 A.3d 118, 121 (Pa. Super. 2014).

All PCRA petitions, including second or subsequent petitions, must be

filed within one year of the date the judgment of sentence becomes final

unless the petitioner pleads and proves one of the exceptions to the timeliness

requirement. 42 Pa.C.S. § 9545(b)(1). These exceptions include:

(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.

Id. Any PCRA petition invoking one of the exceptions listed above must be

filed within one year of the date the claim could have been presented. Id. §

9545(b)(2).

Robertson’s judgment of sentence became final on May 26, 2005, when

the time to file an appeal to the Pennsylvania Supreme Court expired. Id.

§ 9545(b)(3) (stating “a judgment becomes final at the conclusion of direct

review, including discretionary review in the Supreme Court of the United

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States and the Supreme Court of Pennsylvania, or at the expiration of time

for seeking review”). Therefore, Robertson’s sixth PCRA petition, filed on

October 10, 2023, was patently untimely.

In the underlying PCRA petition and in the Turner/Finley brief,

Robertson attempted to invoke the newly-discovered fact exception.

Turner/Finley Brief at 9.3 He argues that he was provided discovery on

February 26, 2020, during the pendency of his fifth PCRA petition, which

included an interview with Allen that was not provided to him. Id. at 8-9.4

Additionally, in his pro se response, Robertson claims that the withheld police

records provided in February 2020 cited witnesses who provided descriptions

____________________________________________

3 We note that although included in Robertson’s amended PCRA petition, Counsel did not raise the governmental interference exception in the Turner/Finley brief. See Commonwealth v. Bennett, 517 A.2d 1248, 1250 n.4 (Pa. 1986) (stating issues raised in PCRA petition and not presented on appeal are deemed abandoned). Further, although Robertson alleges in his pro se response the “obstruction of government officials of [his] appeal rights,” Pro Se Response at 1, he does not plead the elements of the governmental interference exception, nor does he provide any argument in support of this claim. See Commonwealth v. Marshall, 947 A.2d 714, 721 (Pa. 2008) (a PCRA petitioner fails to meet his burden of proving a time-bar exception where he offers only general allegations); Commonwealth v. Murphy, 180 A.3d 402, 404-05 (Pa. Super. 2018) (a PCRA petitioner fails to meet a timeliness exception where they fail to develop any meaningful argument as to which exception applies). Thus, we do not conduct an evaluation of the applicability of the government interference exception to the PCRA’s time bar.

4 The Commonwealth disputes this fact and maintains that it provided all reports relating to Allen during discovery before trial. Commonwealth’s Brief at 17.

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of the suspect. Pro Se Response at 2. Robertson further contends that the

period for filing his sixth PCRA was tolled because he had filed a federal habeas

corpus claim on November 22, 2021, which did not resolve until August 9,

2023. Turner/Finley Brief at 7-9; Pro Se Response at 2-3.

Preliminarily, we observe that Robertson’s invocation of the newly-

discovered fact exception based on an interview with Allen that was allegedly

withheld was not raised in his amended PCRA petition. “Any claim not raised

in the PCRA petition is waived and not cognizable on appeal.”

Commonwealth v. Washington, 927 A.2d 586, 601 (Pa. 2007).5

With respect to the witness identifications referenced in the police

records, Robertson failed to raise this claim within one year of when it could

have been presented. See 42 Pa.C.S. § 9545(b)(2). He does not dispute that

he received the reports on February 26, 2020, while his fifth PCRA petition

was pending before the PCRA court. Robertson did not seek to amend his fifth

PCRA petition to raise this claim. See 42 Pa.C.S. § 9544(b) (“For purposes of

this subchapter, an issue is waived if the petitioner could have raised it but

failed to do so before trial, at trial, during unitary review, on appeal or in a

prior state postconviction proceeding.”).

5 As noted above, this Court has already concluded that Robertson did not act

with due diligence in finding the evidence related to Allen. See 42 Pa.C.S. § 9544(a)(2) (noting an issue has been previously litigated if “the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue”).

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Moreover, assuming for the sake of discussion that Robertson was

awaiting the resolution of his fifth petition to raise this claim in a new PCRA

petition, the Pennsylvania Supreme Court denied allowance of appeal on

issues related to that petition on November 2, 2021. Thus, he would have

had until November 2, 2022, to file a new PCRA petition raising this claim.

See Commonwealth v. Beatty, 207 A.3d 957, 963 (Pa. Super. 2019)

(“Where a prior petition is pending on appeal, a subsequent petition must be

filed within the time limits set forth in [s]ection 9545(b)(2) as measured from

the date of the order that finally resolves the appeal in the prior petition,

because that date is the first date the claim could be presented.”). Robertson

did not file the instant PCRA petition raising this claim until October 10, 2023.

Significantly, contrary to Robertson’s claim, the PCRA time limitations are not

tolled during federal review. See Commonwealth v. Fahy, 737 A.2d 214,

222 (Pa. 1999) (holding that the time limitations under the PCRA are not tolled

by the filing of a federal petition for habeas corpus). Therefore, Robertson did

not timely raise this claim.

In his pro se response, Robertson raises additional claims regarding the

failure of Counsel to adequately represent him. Pro Se Response at 2, 3.

Specifically, he asserts that Counsel was ineffective by failing to present his

newly discovered fact claim at the October 3, 2024 evidentiary hearing,

forcing Robertson to argue the claim himself. Pro Se Response at 2. Further,

Robertson claims that Counsel failed to timely file the notice of appeal in this

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matter. Id. at 2-3. Because of Counsel’s ineffectiveness, Robertson argues

that he is entitled to an appeal nunc pro tunc. Id. at 3.

A “PCRA petitioner may, after a PCRA court denies relief, and after

obtaining new counsel or acting pro se, raise claims of PCRA counsel’s

ineffectiveness at the first opportunity to do so, even if on appeal.”

Commonwealth v. Bradley, 261 A.3d 381, 401 (Pa. 2021), (footnote

omitted). Bradley, however, occurred in the context of a first, timely PCRA

petition. Id. at 384. We have held that “[n]othing in Bradley creates a right

to file a second [or subsequent] PCRA petition outside the PCRA’s one-year

time limit as a method of raising ineffectiveness of PCRA counsel or permits

recognition of such a right.” Commonwealth v. Stahl, 292 A.3d 1130, 1136

(Pa. Super. 2023); see also Commonwealth v. Laird, 331 A.3d 579, 583

(Pa. 2025) (holding “Bradley did not establish an equitable exception to the

PCRA’s time-bar” and “its rationale cannot be extended to create one”).

“Because courts lack jurisdiction to hear an untimely PCRA petition, they

necessarily lack jurisdiction to consider ancillary matters” like ineffective

assistance of counsel claims. Laird, 331 A.3d at 599.

Robertson seeks to raise claims of ineffective assistance of counsel in

an untimely PCRA petition and fails to plead or prove any timeliness exception

in this regard. See Commonwealth v. Branthafer, 315 A.3d 113, 123 (Pa.

Super. 2024) (“Bradley expanded the opportunities afforded a petitioner to

raise ineffectiveness claims, albeit still requiring that the petitioner satisfy the

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jurisdictional one-year time-bar requirement.”). We therefore are unable to

consider the merits of these claims.

Robertson also argues that his sentence was illegal. Pro Se Response

at 2. Because the PCRA petition is untimely, we lack jurisdiction to decide the

merits of this claim. See Commonwealth v. Berry, 877 A.2d 479, 482 (Pa.

Super. 2005) (“[A] court may entertain a challenge to the legality of the

sentence so long as the court has jurisdiction to hear the claim. In the PCRA

context, jurisdiction is tied to the filing of a timely PCRA petition.”).

He further argues that the police report states Allen had a stocking cap

used in the robbery, claiming the evidence should be tested. Pro Se Response

at 2. This issue was not raised in his PCRA petition and cannot be raised for

the first time on appeal, rendering it waived. See Washington, 927 A.2d at

601.

Finally, Robertson claims error in the PCRA court’s failure to provide a

complete response to all claims raised in Robertson’s amended PCRA petition.

Pro Se Response at 3. As the PCRA court found Robertson’s amended PCRA

petition was untimely filed and he failed to plead and prove a timeliness

exception, it lacked jurisdiction to rule upon the merits of the claims raised.

See Brown, 141 A.3d at 499.

In conclusion, the underlying PCRA petition was untimely, and

Robertson failed to plead and prove that any exceptions apply. Accordingly,

neither the PCRA court nor this Court have jurisdiction to consider the merits

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of Robertson’s claims. See Commonwealth v. Keys, 328 A.3d 1141, 1146

(Pa. Super. 2024) (“Without jurisdiction, we simply do not have the legal

authority to address the substantive claims”) (citation omitted). We therefore

grant Counsel’s petition to withdraw representation and affirm the PCRA

court’s order.6

Petition to withdraw granted. Order affirmed. Request for Leave to

Amend denied.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 7/24/2026

6 On July 23, 2026, Robertson filed a “request for leave to amend due to new

case law.” In the request, he cites to Commonwealth v. Brown, 350 A.3d 12 (Pa. 2026), but fails to provide any argument as to how Brown applies to the instant case. Instead, he baldly states that it would provide clarity to the PCRA court’s order dismissing the instant PCRA petition. Thus, we deny Robertson’s request.

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