J-S17044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                    v.

JOEL GLASTON MUIR

                         Appellant                  No. 3016 EDA 2017


           Appeal from the PCRA Order entered August 18, 2017,
           in the Court of Common Pleas of Montgomery County,
           Criminal Division, at No(s): CP-46-CR-0001707-2004.


BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                           FILED MAY 11, 2018

      Joel Glaston Muir appeals pro se from the order denying as untimely

his second petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The PCRA court summarized the pertinent facts and extensive

procedural history as follows:

             [Muir] was found guilty of multiple counts, including
         first degree murder, following a jury trial from August 17,
         2004-August 24, 2004, for crimes committed in the early
         morning hours of August 3, 2001. Rian Wallace was
         approached by four men, including [Muir], following a
         basketball game where [Muir] and [three] other individuals
         engaged in a “gang ritual dance” designed to intimidate
         Mr. Wallace.    [Muir] and his co-conspirators identified
         themselves as members of the Crip Gang. Two men,
         Michael Ziegler and Brandon Germany, came to the aid of
         Mr. Wallace. Mr. Wallace left the parking lot where this
         incident occurred, and thirty minutes later Mr. Ziegler, Mr.
         Germany, and [two] other individuals left in a gold Ford
         Taurus. Mr. Germany testified that Mr. Ziegler dropped off
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       the other [two] individuals before going to an after party.
       Mr. German and Mr. Ziegler stayed at the after party for a
       short time, and then drove to Janae Nixon’s house. [Muir]
       and three other individuals were also in a car in that area.
       Mr. Germany exited the car, and Mr. Ziegler remained in
       the Taurus. Almost immediately after Mr. Germany exited,
       the car containing [Muir] and three other individuals sped
       away before returning with Nick Roberts in the driver’s
       seat and [Muir] in the back seat. As the car containing
       [Muir] approached, Ms. Nixon, her friend[,] Ms. Beasley,
       and Mr. Germany entered Mr. Ziegler’s car before driving
       away.     They were followed by [Muir] and his co-
       conspirator, Mr. Roberts. Mr. Roberts pulled alongside the
       Taurus, and [Muir] began shooting at the occupants of the
       vehicle. One bullet struck Mr. Ziegler in the head, killing
       him.    [Muir] was identified as the shooter by several
       individuals[,] including Hilton Johnson, Sheena Beasley,
       and Janae Nixon.         Following the shooting, [Muir]
       disappeared, eventually being located in New York City two
       years later. After being found guilty, [Muir] was sentenced
       to life imprisonment without the possibility of parole on
       December 29, 2004, plus a consecutive term of 7-14 years
       for each aggravated assault conviction against the three
       victims: Brandon Germany, Sheena Beasley, and Janae
       Nixon.

           [Muir] filed a direct appeal and the Superior Court
       affirmed on August 23, 2006. Thereafter, following a
       number of procedural turns, [the PCRA Court] reinstated
       [Muir’s appellate rights], and [Muir] filed a petition for
       allowance of appeal to the Pennsylvania Supreme Court
       which was denied March 29, 2012. On December 18,
       2012, [Muir] filed a PCRA petition. Appointed counsel filed
       an amended petition, a second amended petition, and then
       a third amended petition. Following a hearing, [Muir’s]
       PCRA petition was denied on May 22, 2014. Counsel
       withdrew following a [no-merit] letter, and [Muir] filed a
       pro se appeal on June 19, 2014. On October 27, 2015, the
       Superior Court affirmed the [PCRA] court’s dismissal of
       [Muir’s] PCRA petition. On January 13, 2017, [Muir] filed a
       second PCRA petition alleging newly discovered evidence.
       In an abundance of caution, this Court appointed counsel
       to review the merits of [Muir’s] second petition, and
       counsel subsequently filed a no-merit letter. On July[] 19,


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         2017, this Court filed is Notice of Intent to Dismiss, and on
         August 18, 2017, this Court dismissed the Petition.

PCRA Court Opinion, 10/1/17, at 1-3. Muir filed this timely, pro se appeal.

Both Muir and the PCRA court have complied with Pa.R.A.P. 1925.

      Muir raises the following issues:

         I.    Whether the PCRA court erred in finding [Muir’s]
               instant PCRA petition untimely that was predicated
               upon the discovery of newly discovered facts under
               the purview of 42 Pa.C.S. § 9545(b)(ii)?

         II.   Whether the PCRA court erred in dismissing [Muir’s]
               PCRA petition without conducting an evidentiary
               hearing?

Muir’s Brief at 2 (excess capitalization omitted).

      We first determine whether the PCRA court correctly concluded that

Muir’s serial petition for post-conviction relief was untimely filed.       This

Court’s standard of review regarding an order dismissing a petition under

the PCRA is to determine whether the PCRA court’s conclusion is supported

by the evidence of record and is free of legal error. The PCRA court’s factual

findings will not be disturbed unless there is no support for the findings in

the certified record. Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa.

Super. 2013) (citations omitted).

      Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

is final unless the petition alleges, and the petitioner proves, that an

exception to the time for filing the petition, set forth at 42 Pa.C.S.A. sections



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9545(b)(1)(i), (ii), and (iii), is met.1 42 Pa.C.S.A. § 9545. A PCRA petition

invoking one of these statutory exceptions must “be filed within 60 days of

the date the claims could have been presented.” See Hernandez, 79 A.3d

651-52 (citations omitted); see also 42 Pa.C.S.A. § 9545(b)(2). Asserted

exceptions to the time restrictions for a PCRA petition must be included in

the petition, and may not be raised for the first time on appeal.

Commonwealth v. Furgess, 149 A.3d 90, 93 (Pa. Super. 2016).

        Because he did not seek further review following the denial of his

petition for allowance of appeal by our Supreme Court on March 29, 2012,

Muir’s judgment of sentence became final on June 27, 2012, when the

ninety-day time period for filing a writ of certiorari with the United States

____________________________________________


1   The exceptions to the timeliness requirement are:

        (I) the failure to raise the claim previously was the result of
        interference of 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.

42 Pa.C.S.A. §§ 9545(b)(1)(i), (ii), and (iii).




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Supreme Court expired.       See 42 Pa.C.S.A. § 9545(b)(3). Thus, Appellant

had until June 27, 2013, to file a timely PCRA petition. As Appellant filed the

instant petition in 2017, it is patently untimely unless he has satisfied his

burden of pleading and proving that one of the enumerated exceptions

applies. See Hernandez, supra.

      Within his brief, Muir concedes that his latest petition is untimely, but

he asserts that he “is entitled to a new trial based upon the ‘NEWLY

DISCOVERED FACTS’ set forth in Brandon Germany’s Affidavit which

established that [Mr. Germany] was never interviewed/investigated by” trial

counsel.”     Muir’s Brief at 4-5.     According to Muir, the “facts contained in

Brandon Germany’s affidavit were unknown to [Muir] and [were] not

disclosed to him until November 21, 2016, when [Muir] encountered

Germany in the prison gym at SCI Graterford[.]” Id. at 10. Muir then filed

his PCRA petition within sixty days of receiving Mr. Germany’s affidavit. Muir

argues that, “contrary to the PCRA Court’s finding, he is entitled to review of

his claim under the ‘newly-discovered facts exception,’ set forth in 42

Pa.C.S. § 9545(b)(1)(ii).” Id. at 5 (emphasis omitted).

      When considering a PCRA’s petitioner’s claim that he or she has

established     an    exception   to    the   PCRA’s    time      bar   under   section

9545(b)(1)(ii), the petitioner must establish only that the facts upon which

the claim are predicated were unknown to him, and that he could not have

ascertained     the   facts earlier    despite   the   exercise    of due   diligence.


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Commonwealth v. Bennett, 930 A.2d 1264, 1270-72 (Pa. 2007).                             The

determination        of     timeliness   does       not   require   a   merits   analysis.

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008).

       Initially, we note the PCRA court recognized that, other than his

statement within the affidavit that Muir’s trial counsel never interviewed him,

Germany provides no other facts concerning the incident that led to Muir’s

murder conviction.           As the PCRA court stated, Muir “fails to state what

evidence Mr. Germany would have provided if interviewed by the Defense,

and he fails to even claim that such evidence would be favorable to him.”

PCRA Court Opinion, 10/13/17 at 5.

       Moreover, our review of the record supports the PCRA court’s

conclusion that Muir did not prove due diligence. Indeed, our review of the

record reveals that Muir intended to raise a claim of ineffectiveness of trial

counsel for failure to interview Mr. Germany as early as 2006. See Muir’s

Letter, 10/11/06 (informing appellate counsel of issue Muir wished to raise

in a future PCRA).2          The fact that Muir could not confirm trial counsel’s

failure to interview Mr. Germany until he actually spoke with Mr. Germany

many years later is of no significance.               At best, Mr. Germany’s affidavit

bolsters    Muir’s        previous   claim     of   ineffectiveness.      Allegations    of
____________________________________________


2This letter refutes Muir’s assertion that “prior to [his conversation with Mr.
Germany] and the information Mr. Germany divulged, [he] had no reason or
motive to question [trial counsel’s] failure to investigate.” Muir’s Brief at 17.




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ineffectiveness of counsel will not overcome the jurisdictional timeliness

requirements of the PCRA.          Commonwealth v. Edmiston, 65 A.3d 339,

349 (Pa. 2013); 42 Pa.C.S.A. § 9545(b)(4).

         Finally, our review of record further reveals that this Court addressed

Muir’s    claim   of   trial   counsel’s   alleged   ineffectiveness   for   failing   to

“investigate relevant witnesses,” when we affirmed the dismissal of Muir’s

prior PCRA Petition.           Commonwealth v. Muir, No. 1970 EDA 2014,

unpublished memorandum at 12. We stated:

              Three of the witnesses that [Muir] claims should have
           been interviewed to support [his theory of self-defense]
           were Nixon, [Beasley], and Germany.            However, as
           detailed supra, all three witnesses testified that Germany
           did not have a gun that night; thus, that testimony would
           not have been helpful to the defense. Accordingly, [Muir’s]
           issue lacks arguable merit.

Id. at 13 (citation omitted).        Thus, Muir’s underlying ineffectiveness claim

has been previously litigated under the PCRA.                 See 42 Pa.C.S.A. §

9544(a)(3) (providing that, under the PCRA, an issue has been previously

litigated if it “has been raised and decided in a proceeding collaterally

attacking the conviction or sentence.”)

         In sum, because Muir has failed to establish an exception to the

PCRA’s time bar, the PCRA court correctly concluded that it lacked




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jurisdiction to consider the merits of the petition.3   We therefore affirm its

order denying post-conviction relief.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/11/18




____________________________________________


3 Given our determination that the PCRA court lacked jurisdiction over the
second PCRA petition, we need not address Muir’s claim that the PCRA court
should have held a hearing prior to the dismissal of the petition.




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