NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 
 

COMMONWEALTH OF PENNSYLVANIA 

  IN THE SUPERIOR COURT OF 
           PENNSYLVANIA 

             

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ONNY L. THOMAS       

v. 

 

 

     

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J-S04006-23  

 

Appellant 

 No. 1671 EDA 2022 

Appeal from the PCRA Order Entered June 3, 2022 
In the Court of Common Pleas of Northampton County Criminal Division 
at No(s):  CP-48-CR-0000622-2005 

EFORE:   MURRAY, J., KING, J., and PELLEGRINI, J.* 

MEMORANDUM BY MURRAY, J.: 

FILED MARCH 23, 2023 

Sonny L. Thomas (Appellant) appeals pro se from the order denying as 

untimely  his  fourth  petition  filed  pursuant  to  the  Post  Conviction  Relief  Act 

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

In 2006, a jury convicted Appellant of first-degree murder and related 

offenses, after he murdered a man with a sword.  The trial court sentenced 

Appellant  to  life  in  prison  on  February  13,  2006.    This  Court  affirmed  the 

judgment  of  sentence.    Commonwealth  v.  Thomas,  918  A.2d  792  (Pa. 

Super. 2006) (unpublished memorandum).  Appellant did not seek allowance 

of appeal with the Supreme Court of Pennsylvania.  

____________________________________________ 

* Retired Senior Judge assigned to the Superior Court. 

 

 

  B

 

 

  

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Appellant  filed  a  first  PCRA  petition  in  March  2008.1    The  PCRA  court 

denied relief, and this Court affirmed.  See Commonwealth v. Thomas, 981 

A.2d 323 (Pa. Super. 2009) (unpublished memorandum).  Our Supreme Court 

later denied allowance of appeal.  See Commonwealth v. Thomas, 986 A.2d 

150 (Pa. 2009). 

Thereafter, this Court affirmed the PCRA court’s dismissal of Appellant’s 

second and third pro se petitions.  See Commonwealth v. Thomas, 46 A.3d 

813  (Pa.  Super.  2009)  (unpublished  memorandum);  Commonwealth  v. 

Thomas, 1907 EDA 2014, 2015 WL 7587375 (Pa. Super. 2015) (unpublished 

memorandum).   

On December 27, 2021, Appellant pro se filed the instant PCRA petition, 

his fourth.  He conceded it was facially untimely, where Appellant’s “judgment 

of sentence became final on January 26, 2007.”  PCRA Petition, 12/27/21, at 

1 (unnumbered).    However, Appellant asserted  he met  the requirements of 

the  newly-discovered  fact  exception  to  the  PCRA’s  time  bar,  codified  at  42 

Pa.C.S.A. § 9545(b)(1)(ii).  Appellant claimed he “has only recently obtained 

[the notes of testimony from] his [t]rial [] on approximately May 12, 2021[,] 

from the Clerk of [] court.”  Id. at 3 (unnumbered); see also id. (vaguely 

asserting there “is a credible explanation for [Appellant’s] failure to present 

____________________________________________ 

1  Appellant  subsequently  initiated  numerous  actions  in  the  federal  courts.  
See, e.g., Thomas v. Iatarola, 2007 U.S. Dist. LEXIS 8765 (E.D. Pa. 2007). 

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these issues earlier.”).  Appellant’s petition raised various claims of his trial 

counsel’s ineffectiveness, which we explain further below.   

The PCRA court appointed counsel (PCRA counsel) for Appellant’s fourth 

PCRA petition.  PCRA counsel thereafter filed a no-merit letter and petition to 

withdraw, pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), 

and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).  

PCRA counsel detailed Appellant’s claims: 

[Appellant] alleges  that  trial counsel was ineffective in failing  to 
secure a jury instruction [with respect to] voluntary manslaughter 
owing  to  trial  counsel’s  various  errors,  namely  in  advising 
[Appellant] not to testify in his own defense, failing to reopen the 
trial to develop more evidence in support of said jury instruction, 
and  failing  to  object  to  the  trial  court’s  abuse  of  discretion  in 
denying said instruction.  [Appellant] only became aware of trial 
counsel’s  ineffectiveness  upon  a  review  of  transcripts  of  the 
charging  conference  between  trial  counsel,  the  assistant  district 
attorney and the trial judge. 
 

Turner/Finley  Letter,  4/4/22,  at  4  (unnumbered)  (some  capitalization 

modified).  According to PCRA counsel, Appellant failed to establish the newly-

discovered  fact  timeliness  exception,  because  “the  trial  transcripts  []  would 

have been available to [Appellant] well prior to May 2021, and, indeed, should 

have been obtained during any of [Appellant’s] previous appellate filings….”  

Id. at 6-7 (unnumbered). 

On May 9, 2022, the PCRA court issued Pa.R.Crim.P. 907 notice of intent 

to  dismiss  Appellant’s  petition  without  an  evidentiary  hearing  (Rule  907 

notice).  The court opined that it lacked jurisdiction because the petition was 

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where the 

untimely,  and  Appellant  did  not  meet  the  newly-discovered  fact  exception, 

“newly-discovered evidence” referenced by [Appellant] has been 
available in the trial transcripts.  Additionally, the alleged failure 
of  trial  counsel  to  have  a  voluntary  jury  instruction  has  been 
waived and is also time[-]barred, since this issue could have been 
determined by a review of the trial transcript in 2008. 
 

Rule 907 Notice, 5/9/22, at 1.  Appellant did not respond. 

The PCRA court denied Appellant’s PCRA petition on June 3, 2022.  The 

court also granted  PCRA counsel’s request to withdraw, finding he complied 

with Turner/Finley.  Order, 6/3/22, at 1 n.1.  Appellant timely appealed.   

On  July  5,  2022,  the  PCRA  court  ordered  Appellant  to  file  a  concise 

statement of errors complained of on appeal (concise statement) (Rule 1925 

Order),  “no  later  than  twenty-one  (21)  days  from  the  date  of  this  Order,” 

pursuant to Pa.R.A.P. 1925(b).  Rule 1925 Order, 7/5/22, at 1 (unnumbered).  

Nine days later, Appellant filed a motion for extension of time to file his concise 

statement, asserting as follows: 

On July 9, 2022[, Appellant] … did receive via the legal mail 
system  at  SCI  Mahanoy  [the  PCRA  court’s  Rule  1925]  Order  … 
ordering that Appellant file[] of record  … a concise statement  … 
no later than twenty-one (21) days from the date of the order. 
 

On June 23, 2022[,] Appellant had mailed a motion to [the 
PCRA] court regarding the fact he did not receive [the Rule 907] 
notice  …  and  that  he  wanted  to  appeal  the  court[’]s  order  … 
denying  his  PCRA  without  a  hearing  and  he  would  need  the  … 
[Rule]  907  notice,  in  order  to  properly  base  his  [concise] 
statement … on the facts.  

 

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reasoning:  

Motion,  7/14/22,  at  1  (unnumbered)  (citation  to  exhibit  omitted;  some 

capitalization  modified).    The  PCRA  court  denied  Appellant’s  motion, 

In his [motion, Appellant] … acknowledges that he received this court’s 
[Rule] 1925(b) [Order] on July 9, 2022.  As such, [Appellant] has ample 
time to file his concise statement…. 
 

Order, 7/18/22, n.1.  Appellant never filed a concise statement. 

 

The PCRA court, in its opinion, “respectfully submitted that the instant 

appeal  should  be  dismissed”  for  Appellant’s  failure  to  timely  file  his  concise 

statement.    PCRA  Court  Opinion,  9/1/22,  at  2  (unnumbered).    In  the 

alternative, the court requested that this Court affirm the denial of Appellant’s 

PCRA  petition,  because  it  was  untimely  and  Appellant  failed  to  meet  the 

requirements  of  the  newly-discovered 

fact  exception. 

  Id.  at  2-3 

(unnumbered). 

On September 9, 2022, Appellant filed an application in this Court, again 

claiming he did not receive the Rule 907 notice “prior to the PCRA court[’]s 

denial of his PCRA, and was not … able to properly articulate to the PCRA court 

a concise statement….”  Application, 9/9/22, at 1 (unnumbered).  We denied 

the  application  without  prejudice  to  Appellant’s  right  to  re-raise  the  issue 

before the merits panel.  Order, 10/13/22. 

Appellant presents five issues for review: 

I.  Was  trial  counsel  ineffective  for  erroneously  advising 
Appellant  not  to  testify  in  his  own  defense,  prejudicing  his 
defense[?] 
 

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II.  Did  the  trial  court  abuse  its  discretion  when  it  denied 
counsel[’]s request for the charge of Voluntary Manslaughter-
unreasonable  belief[,]  18  Pa.C.S.A.  §  2503(b)[,]  when 
evide[n]ce of the record supports such a charge[] and is this 
arguably meritor[i]ous[?] 

II.  Timely filling of petition.  Has [A]ppellant plead and proved 
one of the exceptions to overcome the PCRA time-bar[?] 

V.  Is  [Appellant]  entitled  to  an  evidentiary  hearing?    Was  the 
PCRA  court[’]s  dismissal  of  Appellant[’]s  petition  without  a 
hearing  an  error  because  newly  discovered  evidence  will 
demonstrate 
innocence  of  First-degree 
murder[?] 
 

[Appellant’s] 

V.  Effective assistance of PCRA counsel[.]  Did the PCRA court 
error  in  failing  to  reject  counsel[’]s  No-Merit  Letter  when  it 
neglected to satisfy the Turner/Finley requirements[?] 

  I

  I

 

Appellant’s Brief at 5. 

statement.   

 

Preliminarily,  we  must  address  Appellant’s  failure  to  file  a  concise 

[I]n order to preserve their claims for appellate review, appellants 
must  comply  whenever  the  trial  court  orders  them  to  file  a 
Statement  of  Matters  Complained  of  on  Appeal  pursuant  to 
Pa.R.A.P.  1925.    Any  issues  not  raised  in  a  Pa.R.A.P.  1925(b) 
statement will be deemed waived. 
 

Commonwealth  v.  Castillo,  888  A.2d  775,  780  (Pa.  2005)  (quoting 

Commonwealth  v.  Lord,  719  A.2d  306,  309  (Pa.  1998));  see  also  PCRA 

Court Opinion, 9/1/22, at 2 (unnumbered), supra (finding waiver).  Appellant 

claims he never received the Rule 907 notice, and that he  

had  made  attempts  to  obtain  the  document.    The  PCRA  court 
refused  to  send  a  copy.    Therefore,  [A]ppellant  was  not  able  to 
respond[] to the court[’]s reasons for the dismissal of the PCRA in 
his [concise s]tatement….  
 

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Notably,  the  PCRA  court  docket  contained  in  the  certified  record  is 

incomplete, and does not reflect the entry of the PCRA court’s Rule 907 notice, 

and whether it was served on Appellant.  We deem this to be a breakdown of 

the PCRA court’s operation.  In light of this breakdown, we will not penalize 

Appellant  for  his  failure  to  comply  with  the  Rule  1925  Order.    See,  e.g., 

Commonwealth  v.  Leatherby,  116  A.3d  73,  79  (Pa.  Super.  2015)  (an 

appellant “should not be precluded from appellate review based on what was, 

in  effect,  an  administrative  breakdown  on  the  part  of  the  trial  court.”); 

Commonwealth v. Davis, 867 A.2d 585, 588 (Pa. Super. 2005) (en banc). 

We are mindful of our standard of review: 

Appellate review of a PCRA court’s dismissal of a PCRA petition is 
limited  to  the  examination  of  whether  the  PCRA  court’s 
determination is supported by the record and free of legal error.  
The PCRA court’s findings will not be disturbed unless there is no 
support for the findings in the certified record.  This Court grants 
great deference to the findings of the PCRA court, and we will not 
disturb those findings merely because the record could support a 
contrary holding.  In contrast, we review the PCRA court’s legal 
conclusions de novo. 

ommonwealth v. Maxwell, 232 A.3d 739, 744 (Pa. Super. 2020) (en banc) 

(citations omitted).  

  C

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

filed  within  one  year  of  the  date  that  the  petitioner’s  judgment  of  sentence 

becomes final.  42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Derrickson, 

923 A.2d 466, 468 (Pa. Super. 2007).  A judgment of sentence becomes final 

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Appellant’s Brief at 8-9.   

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“at  the  conclusion  of  direct  review,  including  discretionary  review  in  the 

Supreme Court of the United States and the Supreme Court of Pennsylvania, 

or  at  the  expiration  of  time  for  seeking  the  review.”    42  Pa.C.S.A. 

§ 9545(b)(3).    “If  a  PCRA  petition  is  untimely,  neither  this  Court  nor  the 

[PCRA] court has jurisdiction over the petition.”  Commonwealth v. Chester, 

895 A.2d 520, 522 (Pa. 2006) (citation omitted).  

Appellant concedes his judgment of sentence became final in 2007, after 

the  expiration  of  time  to  file  a  petition  for  allowance  of  appeal  with  the 

Supreme Court of Pennsylvania.  See 42 Pa.C.S.A. § 9545(b)(3); Appellant’s 

Brief at 22-23.  Thus, Appellant’s petition is untimely unless he has satisfied 

one of the PCRA’s  three exceptions contained in Section  9545(b)(1)(i  –  iii).  

Any petition invoking an exception “shall be filed within one year of the date 

the claim could have been presented.”  42 Pa.C.S.A. § 9545(b)(2). 

Appellant  invokes  the  newly-discovered  fact  exception  in  Section 

9545(b)(1)(ii).  We have explained this exception 

requires  a  petitioner  to  demonstrate  he  did  not  know  the  facts 
upon which he based his petition and could not have learned those 
facts  earlier  by  the  exercise  of  due  diligence.    Due  diligence 
demands that the petitioner take reasonable steps to protect his 
own interests.   A petitioner must explain why he could not 
have  learned  the  new  fact(s)  earlier  with  the  exercise  of 
due diligence.  This rule is strictly enforced.  Additionally, the 
focus of this exception is on the newly discovered facts, not on a 
newly  discovered  or  newly  willing  source  for  previously  known 
facts. 
 

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015) (citations 

omitted; emphasis added). 

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 Appellant  argues  he  satisfied  the  newly-discovered  fact  exception, 

because he only recently acquired  the notes of testimony from the charging 

conference.  See Appellant’s Brief at 22-24; see also id. at 25 (“the fact of 

what  transpired  in  the  Chambers  [during  the  charging  conference  was] 

unknown  to  [Appellant]  because  his  trial  counsel  never  discussed  the 

particulars of the conversation with him[, and this fact] could not have been 

ascertained by the exist[e]nce of due diligence….”).  Appellant raises various 

claims of trial counsel’s ineffectiveness.  See Appellant’s Brief at 15-22, 23; 

see  also  Turner/Finley  Letter,  4/4/22,  at  4  (unnumbered),  supra 

(explaining Appellant’s ineffectiveness claims).  Finally, Appellant argues he is 

entitled to relief because PCRA counsel was ineffective in concluding Appellant 

raised no meritorious claims pursuant to Turner/Finley.  See id. at 29-35.   

The Commonwealth counters: 

that 

Appellant  contends 
the  “newly-discovered  evidence” 
exception[2]  applies  because  he  did  not  previously  possess  the 
transcripts  related  to  a  charging  conference  in  chambers.    See 
Brief for Appellant, at 24.  However, as noted by the PCRA court 
and  PCRA  counsel,  the  transcripts  in  question  were  available  to 
Appellant  well  before  2021,  at  least  at  the  time  of  the  direct 
appeal.  See [PCRA Court] Opinion, 09/01/22, at 2-3; No[-]Merit 
Letter, 04/04/22, at unnumbered pages 7-8.  Moreover, a review 
of the docket sheet reflects that the trial transcripts in questions 

____________________________________________ 

2 We observe “the newly-discovered facts exception to the time limitations of 
the PCRA, as set forth in subsection 9545(b)(1)(ii), is distinct from the after-
discovered evidence basis  for  relief  delineated  in  42  Pa.C.S.  §  9543(a)(2).”  
Commonwealth  v.  Burton,  158  A.3d  618,  629  (Pa.  2017)  (emphasis 
added); see also id. (explaining distinction).  In the instant appeal, we deem 
the  Commonwealth’s  reference  to  “newly-discovered  evidence”  as  an 
inadvertent misstatement. 

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to  him. 

were  filed  on  July  31,  2006,  during  the  pendency  of  the  direct 
appeal  and  more  than  fifteen  years  before  the  instant  PCRA 
petition  was  filed.    Appellant  has  not  explained  why  he  did  not 
obtain  these  materials  prior  to  2021  and  how  these  trial 
transcripts  were  previously  unavailable 
  See 
Commonwealth  v.  Pew,  189  A.3d  486,  489-90  (Pa.  Super. 
2018)  (finding  appellant  did  not  adequately  prove  [the  newly-
discovered  fact  exception]  where  he  did  not  establish  how 
documents  filed  of  record  decades  before  were  unavailable  to 
him).  The Commonwealth contends that by failing to explain how 
trial transcripts filed of record in 2006 were previously unavailable 
to  him[,]  and  failing  to  show  that  he  exercised  any  diligence  in 
obtaining these transcripts in the nearly 15 years before filing the 
instant  PCRA  petition,  Appellant  has  failed  to  prove  that  the 
See 
[newly]-discovered 
Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015) 
(determining that due diligence requirement is “strictly enforced” 
and “demands that the petitioner take reasonable steps to protect 
his own interests”). 
 

exception 

applies. 

[fact] 

 

Commonwealth Brief at 11-12.  We agree.  See id.; see also Brown, supra 

(“A  petitioner  must  explain  why  he  could  not  have  learned  the  new  fact(s) 

earlier  with  the  exercise  of  due  diligence.”).    We  further  observe  that  “a 

petitioner’s  claims  []  couched  in  terms  of  ineffectiveness  will  not  save  an 

otherwise untimely petition from the application of the time restrictions of the 

PCRA.”  Commonwealth v. Lesko, 15 A.3d 345, 367 (Pa. 2011).   

Appellant, however, may claim PCRA counsel’s ineffective assistance for 

the first time on appeal.  The Pennsylvania Supreme Court in Commonwealth 

v. Bradley, 261 A.3d 381 (Pa. 2021), restructured the procedure by which a 

PCRA  petitioner  must  assert  claims  of  PCRA  counsel’s  ineffectiveness  to 

“allow[] a PCRA petitioner to raise claims of ineffective assistance of counsel 

at the first opportunity to do so, even when on appeal.”  Id. at 401. 

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Our Supreme Court recently expanded on Bradley, stating: 

We recognized that the structure of appeal and collateral review 
“places  great  importance  on  the  competency  of  initial  PCRA 
counsel,”  and  reasoned  that  “it  is  essential  that  a  petitioner 
possess  a  meaningful  method  by  which  to  realize his  right  to 
effective PCRA counsel.”  Bradley, 261 A.3d at 401.  We stated 
that “this approach best recognizes a petitioner’s right to effective 
PCRA  counsel  while  advancing  equally  legitimate  concerns  that 
criminal matters be efficiently and timely concluded.”  Id. at 405.  
We further explained: 
 

In some instances, the record before the appellate court 
will  be  sufficient  to  allow  for  disposition  of  any  newly-
raised  ineffectiveness  claims.    Commonwealth  v. 
Holmes,  79  A.3d  562,  577  (Pa.  2013).    However,  in 
other cases, the appellate court may need to remand to 
the PCRA court for further development of the record and 
for the PCRA court to consider such claims as an initial 
matter.  Consistent with our prior case law, to advance a 
request  for  remand,  a  petition  would  be  required  to 
provide more than mere “boilerplate assertions of PCRA 
counsel’s ineffectiveness,” Commonwealth v. Hall, 872 
A.2d 1177, 1182 (Pa. 2005); however, where there are 
“material  facts  at  issue  concerning  claims  challenging 
counsel’s stewardship and relief is not plainly unavailable 
as  a  matter  of  law,  the  remand  should  be  afforded[.]”  
Commonwealth v. Grant, 813 A.2d 726, 740 n.2 (Pa. 
2002) (Saylor, J., concurring). 
 

Id. at 402.  We also stated that [Pa.R.A.P.] 302(a), which provides 
that “[i]ssues not raised in the trial court are waived and cannot 
be raised for the first time on appeal,” Pa.R.A.P. 302(a), “does not 
pertain to these scenarios.”  Id. at 405. 

ommonwealth v. Parrish, 273 A.3d 989, 1002 (Pa. 2022) (some brackets 

  C

omitted; citations modified). 

 

Instantly, Appellant argues PCRA counsel’s “no-merit letter is seriously 

deficient.  PCRA counsel did not discuss two issues claimed by the [A]ppellant 

and why they do not have merit….”  Appellant’s Brief at 34.  However, these 

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claims do not entitle Appellant to relief, because relief is “plainly unavailable 

as a matter of law.”  Bradley, 261 A.3d at 402.  Appellant merely raises a 

general  claim  of  PCRA  counsel’s  ineffectiveness,  and  fails  to  identify  and 

develop the two issues counsel purportedly ignored.  See Parrish, 273 A.3d 

at  1002  (“boilerplate  assertions  of  PCRA  counsel’s  ineffectiveness”  are 

insufficient to warrant a remand to the PCRA court under Bradley) (citation 

omitted).   

Our review of Counsel’s Turner/Finley letter belies Appellant’s claims 

of  its  inadequacy.    Moreover,  Appellant  fails  to  address  the  three-pronged 

ineffectiveness test announced in Commonwealth v. Pierce, 527 A.2d 973, 

975-76 (Pa. 1987).  See Commonwealth v. Franklin, 990 A.2d 795, 797 

(Pa. Super. 2010) (holding counsel is presumed to be effective, and a PCRA 

petitioner bears the burden of demonstrating counsel’s ineffectiveness); see 

also Commonwealth v. Tielsch, 934 A.2d 81, 93 (Pa. Super. 2007) (holding 

undeveloped claims will not be considered on appeal).   

Based  on  the  foregoing,  the  PCRA  court  properly  denied  Appellant’s 

untimely PCRA petition. 

Order affirmed. 

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udgment Entered. 

oseph D. Seletyn, Esq. 
Prothonotary 

ate: 3/23/2023 

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