J-S44018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 ANTONIO MARTINEZ                        :
                                         :
                   Appellant             :   No. 2886 EDA 2017

               Appeal from the PCRA Order August 21, 2017
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0530631-1989


BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                            FILED JULY 27, 2018

     Anthony Martinez (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.

     On May 2, 1990, Appellant was convicted of, inter alia, first-degree

murder; on June 27, 1990, he was sentenced to life without parole. Appellant

filed a direct appeal, and this Court affirmed his judgment of sentence. See

Commonwealth v. Martinez, 641 A.2d 1225 (Pa. Super. 1993) (unpublished

memorandum), appeal denied, 651 A.2d 535 (Pa. 1994).             Thereafter,

Appellant filed three successive PCRA petitions, all of which were denied by

the PCRA court, and affirmed by this Court on appeal.       See PCRA Court

Opinion, 12/5/17, at 2.
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       On February 26, 2016, Appellant filed the underlying pro se habeas

corpus petition, which the PCRA court properly treated as a PCRA petition.1

On August 21, 2017, the PCRA court denied the petition as untimely.

Appellant filed a timely pro se appeal.2

       Appellant raises the following issue for our review:

       The trial court abused its discretion in dismissing Appellant’s
       Petition for Habeas Corpus relief since his confinement is based
       on a violation for 42 Pa.C.S.A. § 9764(a)(8); a sentence pursuant
       to a penal statute that is void under the vagueness doctrine; and
       the denial of access to the Court due to a language barrier.

Appellant’s Brief at 3.

       Preliminarily, we recognize that our standard of review of an order

denying PCRA relief is “whether the PCRA court’s determination is supported

by the evidence of record and free of legal error. We grant great deference

to the PCRA court’s findings, and we will not disturb those findings unless they

are unsupported by the certified record.” Commonwealth v. Holt, 175 A.3d

1014, 1017 (Pa. Super. 2017) (citation omitted).       A PCRA petitioner must




____________________________________________


1 It is well-settled that the PCRA is intended to be the sole means of obtaining
post-conviction relief, and that the statute subsumes the writ of habeas
corpus. 42 Pa.C.S.A. § 9542; Commonwealth v. Taylor, 65 A.3d 462, 465
(Pa. Super. 2013). “Issues that are cognizable under the PCRA must be raised
in a timely PCRA petition and cannot be raised in a habeas corpus petition.”
Taylor, 65 A.3d at 466 (internal citations omitted).
2 Although the PCRA court issued an opinion, it did not order Appellant to file
a Pa.R.A.P. 1925(b) statement.


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establish a claim by a preponderance of the evidence. Commonwealth v.

Gibson, 925 A.2d 167, 169 (Pa. 2007).

      Further, before reaching the merits of a petitioner’s claim, section 9545

of the PCRA requires that “[a]ny petition under this subchapter, including a

second or subsequent petition, shall be filed within one year of the date the

judgment becomes final.” 42 Pa.C.S.A. § 9545(b)(1). A judgment becomes

final “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).

      This Court has held that the timeliness requirement of the PCRA is

“mandatory and jurisdictional in nature.”     Commonwealth v. McKeever,

947 A.2d 782, 784-785 (Pa. Super. 2008) (citing Commonwealth v. Davis,

916 A.2d 1206, 1208 (Pa. Super. 2007)). Therefore, “no court may disregard,

alter, or create equitable exceptions to the timeliness requirement in order to

reach the substance of a petitioner’s arguments.” Id. at 785.

      Although the timeliness requirement is mandatory and jurisdictional, “an

untimely petition may be received when the petition alleges, and the petitioner

proves, that any of the three limited exceptions to the time for filing set forth

at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is met.” Commonwealth v.

Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). The three exceptions to

the timeliness requirement are:


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      (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.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). The petition invoking an exception “shall

be filed within 60 days of the date the claim could have been presented.” 42

Pa.C.S.A. § 9545(b)(2).

      Instantly, Appellant acknowledges the PCRA’s time bar, and concedes

that his judgment of sentence became final in 1995. Appellant’s Brief at 15-

16. Appellant claims the government interference exception to the PCRA’s

time bar, stating that he “is Hispanic, functionally illiterate . . . [and] is neither

able to read nor write [the] English language at a level which would enable

him to gain access to the courts at even the most minimally meaningful level,

constitut[ing] Government interference on the part of the Pennsylvania

Department of Corrections (DOC).” Id. at 8. He also states:

      Appellant argues that the delay in his filing of his PCRA petitions
      was the result of government interference. Appellant indicated
      that he didn’t do so because he didn’t understand English well
      enough.

Id. at 17.


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       Beyond the above assertions, Appellant fails to develop his claim of

government interference based on his challenges with the English language.3

To meet the government interference exception, Appellant must demonstrate

that the alleged government interference violated the United States or

Pennsylvania Constitution or laws. Commonwealth v. Albrecht, 994 A.2d

1091, 1095 (Pa. 2010), citing 42 Pa.C.S.A. § 9545(b)(1)(i). Appellant has

failed to do so. See id. (appellant’s failure to sufficiently develop his claim of

governmental interference resulted in waiver).

       Accordingly, we agree with the PCRA court’s determination that

Appellant failed to plead and prove his claim of government interference as an

exception to the PCRA’s time bar.              Thus, Appellant's petition is patently

untimely, and we are without jurisdiction to consider its merits.

       Order affirmed.




____________________________________________


3 We note the contrast between this case and Commonwealth v. Diaz, 183
A.3d 417 (Pa. Super. 2017), where the PCRA petitioner succeeded in obtaining
relief based on, inter alia, the fact that he made a claim to his attorney “on
the morning of trial” regarding his problem understanding English. Id. at
419 (emphasis added). Although the petitioner requested a translator, his
request was only partially honored and Appellant was convicted of two counts
of rape and related charges. The petitioner filed a direct appeal raising the
translation issue, but this Court found the issue waived. Thereafter, Appellant
again raised the issue in his first, timely PCRA petition, where he asserted that
his counsel was ineffective for failing secure a Spanish-English interpreter and
object to the court’s decision to hear testimony on the first day of trial in the
absence of an interpreter. Conversely, Appellant in this case has failed to
explain his 25 year delay in asserting the Spanish-English language barrier,
either in his direct appeal to this Court, or in his three prior PCRA petitions.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/27/18




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