J-S89013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CURTIS CROSLAND,

                            Appellant                 No. 3541 EDA 2015


                  Appeal from the PCRA Order October 20, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0132641-1988


BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                           FILED January 12, 2017

       Curtis Crosland (“Appellant”) appeals pro se from the order denying

his eighth petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541–9546. We affirm.

       On December 16, 1988, Appellant was found guilty of murder in the

second degree, robbery, and weapons offenses. Appellant was sentenced to

life imprisonment. On September 20, 1990, this Court reversed the

judgment of sentence and awarded Appellant a new trial.

       On January 29, 1991, Appellant was again convicted of murder in the

second degree, robbery, and weapons offenses. Appellant was sentenced on

June 10, 1992, to life imprisonment on the murder charge and consecutive
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S89013-16


sentences of ten to twenty years of incarceration on the robbery charge, and

two and one-half to five years on the weapons offenses. This Court affirmed

the judgment of sentence for murder and weapons offenses but vacated the

sentence on the robbery conviction, and the Pennsylvania Supreme Court

denied leave to appeal. Commonwealth v. Crosland, 631 A.2d 212 (Pa.

Super. 1993) (unpublished memorandum), appeal denied, 639 A.2d 24 (Pa.

1994).

       Appellant filed the instant PCRA petition, his eighth, on July 25, 2013.1

Additionally, he filed a supplemental petition on February 12, 2014, and

____________________________________________


1
  Appellant filed his first PCRA petition on March 30, 1995. It was denied on
October 10, 1996. This Court affirmed the denial of the petition on
September 16, 1997, and the Pennsylvania Supreme Court denied leave to
appeal on March 10, 1998. Commonwealth v. Crosland, 704 A.2d 160
(Pa. Super. 1997) (unpublished memorandum), appeal denied, 723 A.2d
669 (Pa. 1998).

   Appellant filed his second PCRA petition on March 9, 1999. It was
dismissed as untimely on January 24, 2000. This Court affirmed the
dismissal on January 25, 2001. Commonwealth v. Crosland, 776 A.2d
289 (Pa. Super. 2001) (unpublished memorandum). Appellant did not seek
leave to appeal to the Pennsylvania Supreme Court.

  Appellant filed a third PCRA petition on May 17, 2001, styled as a petition
for writ of habeas corpus, which the PCRA court dismissed on January 7,
2002.     This Court affirmed the dismissal on February 25, 2003.
Commonwealth v. Crosland, 821 A.2d 131 (Pa. Super. 2003)
(unpublished memorandum). Appellant did not seek leave to appeal to the
Pennsylvania Supreme Court.

   On May 4, 2004, Appellant filed a fourth PCRA petition. It was dismissed
as untimely on August 24, 2004. This Court affirmed the dismissal on
June 22, 2005, and the Pennsylvania Supreme Court denied leave to appeal
(Footnote Continued Next Page)


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another petition on August 12, 2014, both without leave of court pursuant to

Pa.R.Crim.P. 905.        The PCRA court issued a notice of intent to dismiss

pursuant to Pa.R.Crim.P. 907 on June 23, 2015, and Appellant filed a

response on July 14, 2015. The PCRA court dismissed Appellant’s petition

on October 20, 2015. This appeal followed. Appellant and the PCRA court

complied with Pa.R.A.P. 1925.

      On appeal, Appellant raises the following questions for our review,

which we reproduce verbatim:

      I.     Did the PCRA court err, and commit reversible error when
             it dismissed petition as untimely filed without the benefit of
             a properly conducted evidentiary hearing to determine the
             credibility of Micheal Turner’s presented statement(s) that
             lead to the filing of said petition, and evidence of Delorus
                       _______________________
(Footnote Continued)

on March 31, 2006. Commonwealth v. Crosland, 883 A.2d 686 (Pa.
Super. 2005) (unpublished memorandum), appeal denied, 898 A.2d 1069
(Pa. 2006).

   On June 6, 2006, Appellant filed his fifth PCRA petition. It was dismissed
as untimely on March 30, 2007. This Court affirmed the dismissal on April 1,
2008, and the Pennsylvania Supreme Court denied leave to appeal on
December 2, 2008. Commonwealth v. Crosland, 953 A.2d 826 (Pa.
Super. 2008) (unpublished memorandum), appeal denied, 961 A.2d 858
(Pa. 2008).

   Appellant filed his sixth PCRA petition on January 30, 2009. The petition
was dismissed as untimely on October 14, 2009. This Court affirmed the
dismissal on August 12, 2010. Commonwealth v. Crosland, 11 A.3d 1022
(Pa. Super. 2010) (unpublished memorandum). Appellant did not seek
leave to appeal to the Pennsylvania Supreme Court.

   Appellant filed his seventh PCRA petition on May 16, 2012. The PCRA
court dismissed the petition as untimely on June 19, 2013. Appellant did not
appeal that decision.



                                            -3-
J-S89013-16


             Tilghman found as a result in support of statement and
             therefore being able to render a fully informed legal
             opinion on Petitioner”s innocenc?

      II.    Did the PCRA court err, and commit reversible error when
             it failed to recognized a timely presented motion to the
             court, that was pertinent to the due process of law with
             regards to final disposition of a PCRA petition ?

      III.   Did the Commonwealth’s attorney perpetrate a knowing
             fraud upon the court when it failed to disclose discovered
             material to the defense, that was presented to the court at
             trial, and knew was inherently false in nature ?

      IV.    Whether the PCRA court erred that other innocence
             evidence of a district attorney officer conducted an
             undisclosed investigation and reported state key witness
             Rodney Everett excluded Petitioner of 1986 murder
             confession the time period between June of 1986 and Late
             as March 27, 1987 was precluded due to due diligence
             after the state under these proceedings conceded for the
             first time full discovery was denied which included the
             statement of William Massey during trial and under the
             first PCRA review denied any evidence existed that
             excluded Petitioner of the murder confession prior to
             Everett’s recantation whereas Massey’s undisclosed
             statement did, and would same be unconstitutional now to
             not review in light of Delorus Tilghman”s new evidence
             when the jury was asked to compare both statements to
             support a finding of a guilty verdict even though the claim
             was initially filed pursuant to Perkins Super. ?

      V.     Whether Petitioner should be entitled to relief of his trial
             ineffective claims under Martinez Super., in light Henkel
             Super., in that the Sixth Amendment violations is a
             miscarriage of justice. ?

      VI.    Whether Miller vs. Alabam/Montgomery Super., juvenile
             claim entitles Petitioner to retroactive relief

Appellant’s Brief at vi. We note that Appellant filed a reply brief in which he

restates his arguments as objections to the Commonwealth’s responses.


                                     -4-
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      When reviewing the propriety of an order denying PCRA relief, this

Court is limited to determining whether the evidence of record supports the

conclusions of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). The PCRA

court’s findings will not be disturbed unless there is no support for them in

the certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa.

Super. 2014).

      Initially, we address whether this appeal is properly before us.    The

PCRA court dismissed Appellant’s petition as untimely. “As the timeliness of

a PCRA petition is a question of law, 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) (citation omitted). Moreover, the timeliness of a

PCRA petition is a jurisdictional threshold that may not be disregarded in

order to reach the merits of the claims raised in a PCRA petition that is

untimely.     Commonwealth v. Cintora, 69 A.3d 759, 762 (Pa. Super.

2013). “We have repeatedly stated it is the [petitioner’s] burden to allege

and prove that one of the timeliness exceptions applies.          See, e.g.,

Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999). Whether [a

petitioner] has carried his burden is a threshold inquiry prior to considering

the merits of any claim.” Commonwealth v. Edmiston, 65 A.3d 339, 346

(Pa. 2013).




                                    -5-
J-S89013-16


       In order to be considered timely, a first, or any subsequent PCRA

petition, must be filed within one year of the date the petitioner’s judgment

of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). Since his sentencing

on June 10, 1992, Appellant has filed seven PCRA petitions in the court

below; as such, his instant petition would be time-barred absent the

applicability   of   one    of   the    exceptions   enumerated   in   42   Pa.C.S.

§ 9545(b)(1).2

       A petition invoking one of these exceptions must be filed within sixty

days of the date the claim could first have been presented.            42 Pa.C.S.

§ 9545(b)(2). In order to be entitled to the exceptions to the PCRA’s one-

year filing deadline, “the petitioner must plead and prove specific facts that

demonstrate his claim was raised within the sixty-day time frame” under
____________________________________________


2
    The exceptions to the timeliness requirement are:

       (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. § 9545(b)(1)(i), (ii), and (iii).



                                           -6-
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section 9545(b)(2).       Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa.

Super. 2001).        “If the petition is determined to be untimely, and no

exception has been pled and proven, the petition must be dismissed without

a hearing because Pennsylvania courts are without jurisdiction to consider

the merits of the petition.”        Commonwealth v. Perrin, 947 A.2d 1284,

1285 (Pa. Super. 2008).

       Throughout his first three issues, Appellant invokes two of the three

enumerated exceptions to the PCRA time-bar.          First, Appellant raises the

second exception, claiming newly-discovered facts that were unknown to

him and that allegedly could not have been ascertained by the exercise of

due diligence.     42 Pa.C.S. § 9545(b)(1)(ii). 3   According to Appellant, the

newly discovered facts appear in an affidavit by Michael Turner dated July 8,

2014, which Appellant attached to his second unauthorized supplemental

petition. Newly Supplemental Petition, 8/12/14, at Appendix A. Appellant

____________________________________________


3
   The Pennsylvania Supreme Court recently addressed this exception again
in Commonwealth v. Mitchell, 141 A.3d 1277 (Pa. 2016):

       The “newly-discovered fact” exception applies only to the PCRA’s
       time bar, and it “requires petitioner to allege and prove that
       there were “facts” that were “unknown” to him and that he
       exercised due diligence. An “after-discovered evidence” claim,
       by contrast, provides a basis for substantive relief and requires
       that the proffered evidence be “exculpatory” and that it “would
       have changed the outcome of the trial.”

Mitchell, 141 A.3d at 1283 n.4 (quoting Commonwealth v. Bennett, 930
A.2d 1264, 1270–1273 (2007)).



                                           -7-
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claims that his relative, Ms. Tilghman, gave false testimony at his trial when

she denied having mental health issues and that Michael Turner’s affidavit

substantiates her mental illness.              Appellant’s Brief at 1–8 (citing N.T.,

1/25/91, at 90).        In further support of his argument, Appellant cites to a

recorded statement Ms. Tilghman gave to Michael Turner’s attorney months

before Appellant’s arrest, in which she disclosed her mental health issues.

Id. at 2–7 (citing Tilghman Statement, 4/27/87, at 7–11).              Appellant also

claims that, unbeknownst to him at trial, Detective Cimino knew about

Ms. Tilghman’s mental health issues. Id. at 8–11, 14–16.

       The Commonwealth counters that Appellant’s new-facts claim “was

never properly raised before the PCRA court. He addressed it only in one of

his unauthorized amended petitions and in his response to the PCRA court’s

Rule 907 notice.”             Commonwealth’s Brief at 14 (citations omitted).

According to the Commonwealth, Appellant was required “to plead any time-

bar exception in either his petition or in an amended petition filed with leave

of   court.”      Id.    at    14–15   (citations     omitted).4    Additionally,   the

____________________________________________


4
    We disagree with the Commonwealth’s suggestion that Appellant has
waived this claim by raising it in a supplemental PCRA petition filed without
leave of court. When a PCRA court fails to strike a supplemental petition
and addresses issues raised therein in ruling upon the petition, the PCRA
court implicitly permits amendment under Pa.R.Crim.P. 905(A).             See
Commonwealth v. Brown, 141 A.3d 491, 504–505 (Pa. Super. 2016)
(“[W]hen a petitioner files supplemental materials to a PCRA petition, and
the PCRA court considers such materials, an attempt by the Commonwealth
to preclude consideration of such materials fails.”). Herein, not only did the
(Footnote Continued Next Page)


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Commonwealth contends that Appellant failed to properly develop this claim

because he did not “plead and offer to prove in his petition that he proffered

the Turner affidavits with the due diligence the PCRA required.” Id. at 15,

19.   Moreover, the Commonwealth argues that Appellant’s “claim to the

time-bar exception was unavailing because it consisted merely of new

sources for previously known information” and “could be used only for

impeachment purposes.” Id. at 16, n.4 (citations omitted).

      The PCRA court crystallized the Tilghman portion of Appellant’s newly-

discovered-facts argument as follows:

           [Appellant] claimed to have [newly]-discovered evidence
      concerning the testimony of Delorus Tilghman,[5] who testified at
      [Appellant’s] trial. [Appellant] submitted an affidavit from
      Michael Turner claiming to have information concerning the
                       _______________________
(Footnote Continued)

PCRA court not strike Appellant’s supplemental petitions, it entered its order
of dismissal after “consideration of Petitioner’s Post Conviction Relief Act
Petition, and all supplemental petitions, and Petitioner’s Response to the
Notice of Intent to Dismiss Pursuant to Pa.R.Crim.P. 907.” Order, 10/20/15.
Moreover, the PCRA court addressed the section 9545(b)(1)(ii) claim raised
in Appellant’s supplemental petition. PCRA Court Opinion, 2/1/16, at 3–5.
Under the circumstances, the Commonwealth may not avail itself of waiver.

     However, because Appellant did not raise the Detective Cimino portion of
his section 9545(b)(1)(ii) claim in his eighth PCRA petition or supplemental
filings and the PCRA court did not address that part of the claim, the
Commonwealth’s waiver argument prevails.
5
    Ms. Tilghman’s first name is spelled in various ways throughout the
record: “Delorus,” “Dolores,” and “Delores.” We shall refer to her as
Ms. Tilghman. She testified at Appellant’s trial that she overheard him and
two other people discussing the killing; specifically, she heard Appellant
state he was afraid someone would come forward to claim a reward for
information about the murder. N.T., 1/25/91, at 72, 79.



                                            -9-
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     truthfulness of Delorus Tilghman. [Appellant] submitted two
     affidavits from Michael Turner; one dated July 8, 2014, and one
     dated August 22, 2000, which is notarized. Mr. Turner states
     that had he been called to testify at [Appellant’s] trial, he would
     have given testimony to support his claim that Ms. Tilghman,
     who is the mother of his children, had a propensity and motive
     to lie.

PCRA Court Opinion, 2/1/16, at 3–4 (unnumbered). In disposing of this part

of Appellant’s new-facts claim, the PCRA court opined as follows:

           Upon review of this claim, it is clear that this newly-
     discovered evidence claim is clearly untimely given that
     Mr. Turner’s affidavit is dated August 22, 2000. [Appellant]
     raised this claim in 2013, which is well past the 60 day time
     period to file newly discovered claims. [Appellant] offered no
     reason to explain the delay and by waiting so long to raise the
     claim, he failed to demonstrate due diligence as required by the
     law to overcome the PCRA’s time bar. Thus, this court was
     without jurisdiction to review the merits of this claim.

            As for Mr. Turner’s affidavit dated July 8, 2014, this
     document contained a written statement signed by Ms. Delores
     Tilghman.      The statement was made on April 27, 1987.
     Mr. Turner’s     July     8,   2014,    affidavit  referenced     that
     Attorney Daniel Paul Alva had obtained a taped interview with
     Ms. Tilghman. Mr.Turner admits in his July 8, 2014 affidavit that
     his attorneys played the tape of Ms. Tilghman at his preliminary
     hearing in May of 1987. That was before both of [Appellant’s]
     trials and could have been used to cross examine Ms. Tilghman.
     Therefore, the alleged [newly]-discovered facts advanced by
     [Appellant] were discoverable since 1987. A PCRA claim 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 post-conviction proceeding.”         42 Pa.C.S.A. § 9544(b).
     Therefore, this claim affords no relief. See also Commonwealth
     v. Marshall, 947 A.2d 714, 720 (Pa. 2008) (holding that the
     focus of the newly-discovered evidence exception “is on the
     newly discovered facts, not on a newly discovered or newly
     willing source for previously known facts.”).

PCRA Court Opinion, 2/1/16, at 4–5 (unnumbered).


                                    - 10 -
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      Upon review of Appellant’s arguments and the certified record, we

conclude that his petition was filed within sixty days of Michael Turner’s

July 8, 2014 affidavit. Nevertheless, Appellant is not entitled to relief under

section 9545(b)(1)(ii) for multiple reasons. First, we agree with the PCRA

court that, given the information and dates revealed in Michael Turner’s

affidavits, Appellant could have raised this claim in a prior proceeding

through the exercise of due diligence.        PCRA Court Opinion, 2/1/16, at

unnumbered 5. See Commonwealth v. Burton, 121 A.3d 1063, 1071 (Pa.

Super. 2015) (en banc) (“[D]ue diligence requires neither perfect vigilance

nor punctilious care, but rather it requires reasonable efforts by a petitioner,

based on the particular circumstances, to uncover facts that may support a

claim for collateral relief.”) (citations omitted). The record does not reveal

any reasonable efforts by Appellant to present his newly discovered-facts

claim within the requisite sixty-day time period.    Because he did not, it is

waived. 42 Pa.C.S. § 9544(b).

      Second, Appellant’s newly-discovered facts amount to previously

known facts delivered by new sources. See Commonwealth v. Marshall,

947 A.2d 714, 720 (Pa. 2008) (holding that the focus of section

9545(b)(1)(ii) “is on the newly discovered facts, not on a newly discovered

or newly willing source for previously known facts”) (emphasis in original).

Here, Appellant knew about Ms. Tilghman’s mental health issues and

Michael Turner’s relationship to Ms. Tilghman. What he characterizes as new


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J-S89013-16


facts are, rather, new sources. Such a claim does not afford relief. Third,

Appellant’s newly-discovered facts regarding Ms. Tilghman’s mental health

could be used only to impeach her credibility, which is not a basis for relief.

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

these reasons, we conclude that Appellant’s claim does not render his

petition timely under section 9545(b)(1)(ii).

       Appellant also invokes the first time-bar exception within his first three

issues, asserting interference by government officials with the presentation

of his claim.      42 Pa.C.S. § 9545(b)(1)(i).          According to Appellant, the

Commonwealth        was    aware     of   Ms.    Tilghman’s   mental   health   issues,

Detective Cimino’s knowledge of the same, and the recantation of an

unavailable Commonwealth witness, Rodney Everett, but it failed to disclose

that information to Appellant in violation of Brady v. Maryland, 373 U.S. 83

(1963). Appellant’s Brief at 7, 15–26; 42 Pa.C.S. § 9545(b)(1)(i).6

       In response, the Commonwealth observes that Appellant “argues, in a

rambling,     disjointed    fashion,      that   the   Commonwealth      engaged     in

governmental interference for time-bar purposes by permitting various

instances of false testimony at his trial.” Commonwealth’s Brief at 18. The

Commonwealth         characterizes     Appellant’s     argument   as   “undeveloped,

unsupported, and irrelevant.” Id. at 19.
____________________________________________


6
   We note that the PCRA court did not address Appellant’s government-
interference claim or alleged Brady violations.



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      Upon review, we conclude that Appellant has failed to demonstrate

that government interference prevented him from raising his claim in a

timely manner. 42 Pa.C.S. § 9545(b)(1)(i). Indeed, as the Commonwealth

asserts, “at most, [Appellant] baldly asserted that information that was not

presented at his trial was ‘suppressed’ . . . without showing that the

government improperly withheld the information from him or prevented it

from being presented at trial.”             Commonwealth’s Brief at 19.                See

Commonwealth v. Stokes, 959 A.2d 306 (Pa. 2008) (rejecting argument

that a Brady claim operates to negate—wholly—the statutory timeliness

requirements set forth in the PCRA).

      In sum, we conclude that Appellant was not entitled to the benefit of

the first or second enumerated exceptions to the PCRA time bar. Therefore,

the PCRA court did not err in denying his untimely petition because it lacked

jurisdiction.

      In his fourth issue, Appellant complains that the PCRA court erred in

ruling that his claim related to Rodney Everett was previously litigated.

Appellant’s     Brief   at   27–37.      According      to    Appellant,   “[t]he   District

Attorney withheld       evidence      obtained     by   its    own   Office   and    Court

Officer William Massey that Rodney Everett excluded [Appellant as] the

murder[er]. . . . Had the jury heard this evidence it would not have voted to

convict [Appellant].” Id. at 32. Appellant also includes in this section of his

argument an ineffective assistance of counsel (“IAC”) claim based on


                                          - 13 -
J-S89013-16


Commonwealth v. Bazemore, 614 A.2d 684 (Pa. 1992).7 Appellant’s Brief

at 33–36.

       The Commonwealth’s response is two-fold. First, it submits that IAC

claims do not defeat the PCRA time bar. Commonwealth’s Brief at 19 (citing

Commonwealth v. Crews, 863 A.2d 498, 503 (Pa. 2004)).                Second, the

Commonwealth contends that Appellant’s argument regarding Rodney

Everett was previously litigated in his fourth PCRA petition and, therefore,

not entitled to review.        Id. at 20 (citing 42 Pa.C.S. §§ 9543(a)(3) and

9544(b),     Commonwealth v. Robinson, 82 A.3d 998, 1005 (Pa. Super.

2013)).

       Without addressing the IAC component of Appellant’s fourth issue, the

PCRA court agreed with the Commonwealth’s position on Rodney Everett:

             [Appellant], has he had done previously, again attempted
       to attack the statements made by Rodney Everett. Pursuant to
       section 9543 of the PCRA, a petitioner is eligible for relief only if
       “the allegation of error has not been previously litigated or
       waived.” 42 Pa.C.S.A. § 9543(a)(3). Pursuant to section 9544
       of the PCRA, “an issue has been previously litigated if . . . it has
       been raised and decided in a proceeding collaterally attacking
       the conviction or sentence.” 42 Pa.C.S.A. § 9544(a)(3). Here,
       arguments over the credibility of Mr. Everett, as well as
       arguments related to how Mr. Everett’s statements were
       presented, have been the subject of two direct appeals and prior

____________________________________________


7
   In Bazemore, the Pennsylvania Supreme Court held that the transcript of
prior testimony by an unavailable Commonwealth witness was not
admissible at trial because the Commonwealth had failed to disclose to the
defense vital impeachment evidence regarding that witness prior to the
preliminary hearing. Bazemore, 614 A.2d at 688.



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       PCRA petitions.    As such, this court has no jurisdiction to
       entertain [Appellant’s] claims.

PCRA Opinion, 2/1/16, at unnumbered 5.

       Upon review of the certified record, we discern no abuse of the PCRA

court’s discretion or error of law in its legal conclusions.         Appellant's

ineffectiveness claims are not cognizable as an exception to the PCRA’s time

bar. Commonwealth v. Albrecht, 994 A.2d 1091, 1095 n.5 (Pa. 2010).

Moreover, a panel of this Court ruled in 2005 that Appellant’s Bazemore

claim “could have been raised as early as 1992.”            Commownealth v.

Crosland, 2634 EDA 2004, 883 A.2d 686 (Pa. Super. filed June 22, 2005)

(unpublished memorandum at 6–7). Thus, Appellant’s fourth issue does not

warrant relief.

       In his fifth issue, Appellant invokes the third time-bar exception by

joining an IAC claim with the United States Supreme Court’s decision

Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309 (2012), to create a new

constitutional right.8      42 Pa.C.S. § 9541(b)(1)(iii).    Initially, Appellant

____________________________________________


8
   Martinez involved a federal habeas petition alleging ineffective assistance
of PCRA counsel. The United States Supreme Court acknowledged that,
under the doctrine of “procedural default,” a federal habeas court will not
review the merits of claims, including constitutional claims, that a state court
declined to hear because the prisoner failed to abide by a state procedural
rule. Martinez, 132 S.Ct. at 1316. However, faced with an IAC claim, the
Martinez Court created a narrow exception: “Where, under state law,
claims of ineffective assistance of trial counsel must be raised in an initial-
review collateral proceeding, a procedural default will not bar a federal
habeas court from hearing a substantial claim of ineffective assistance at
(Footnote Continued Next Page)


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J-S89013-16


concedes that this claim was previously litigated, but then he alleges that no

court actually reviewed the claim due to a judicial breakdown.      Id. at 38,

41.9    Furthermore, Appellant argues that his IAC claim has merit and,

therefore, is entitled to review. Id. at 42–44 (citing Bazemore).

       The Commonwealth counters as follows:        “This Court has held that

‘while Martinez represents a significant development in federal habeas

corpus law, it is of no moment with respect to the way Pennsylvania courts

apply the plain language of the time bar set forth in section 9541(b)(1) of

the PCRA.’”     Commonwealth’s Brief at 20 (quoting Commonwealth v.


                       _______________________
(Footnote Continued)

trial if, in the initial-review collateral proceeding, there was no counsel or
counsel in that proceeding was ineffective.” Id. at 1320.
9
    The PCRA court addressed this allegation as follows:

       [Appellant] previously filed a PCRA [petition] on May 16, 2012,
       which he supplemented on August 7, 2012, and August 21,
       2012, wherein he [raised] claims under Miller v. Alabama, 132
       S.Ct. 2455 (2012), and Martinez v. Ryan, 132 S.Ct. 1309
       (2012). That petition was dismissed on June 19, 2013, and
       [Appellant] did not appeal.      [Appellant] filed another PCRA
       petition on July 25, 2013, which he entitled, “Amended PCRA not
       Second.”

PCRA Court Opinion, 2/1/16, at unnumbered 5 (footnote omitted). Our
review of the record reveals that Appellant sought reinstatement of his
appeal rights in a filing dated January 23, 2014, claiming that he did not
have notice of the June 19, 2013 dismissal until he received the PCRA Unit
Docket Sheet on December 17, 2013. Letter Motion, 1/23/14. The PCRA
court concluded, “Had [Appellant] exercised due diligence he could have
discovered that his prior petition had been dismissed.” PCRA Opinion,
2/1/16, at unnumbered 5. We agree, thus finding no error.



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Saunders, 60 A.3d 162, 165 (Pa. Super. 2013)). The PCRA court agreed,

and so do we. As the PCRA court opined:

      [Appellant] alleged that in Martinez, the United States Supreme
      Court recognized a new constitutional right and, in accordance
      with this new constitutional right, he was now entitled to raise
      claims that his trial counsel and direct appellate counsel were
      ineffective.    [Appellant] was mistaken.       In Martinez, the
      Supreme Court held that where counsel is ineffective in a prior,
      initial state collateral review proceeding, and where the
      ineffectiveness caused the petitioner to procedurally default on a
      substantive claim, counsel’s ineffectiveness “may provide cause
      [to excuse a] procedural default in a federal habeas proceeding.”
      [Martinez, 132 S.Ct.] at 1315. Yes, as the Martinez Court
      explicitly declared, it was not handing down a “constitutional
      ruling” and it was not recognizing a new constitutional right. Id.
      at 1319-1320. Rather, the Martinez Court based its holding
      upon an “equitable” exception to a court-created doctrine that is
      applicable only in the federal courts.            Id.; see also
      Commonwealth v. Saunders, 60 A.3d 162, 165 (Pa. Super. Ct.
      2013) (holding that “while Martinez represents a significant
      development in federal habeas corpus law, it is of no moment
      with respect to the way Pennsylvania courts apply the plain
      language of the time bar set forth in section 9545(b)(1) of the
      PCRA.”). As such, this claim was meritless.

PCRA Court Opinion, 2/1/16, at unnumbered 6–7.          We adopt the PCRA

court’s sound reasoning as our own and conclude that Appellant’s fifth issue

does not warrant relief.

      Also under the guise of the third enumerated exception, Appellant

claims that he is actually innocent and, therefore, entitled to an evidentiary

hearing on the merits.      Appellant’s Brief at 12 (citing McQuiggin v.

Perkins, ___ U.S. ___, 133 S.Ct. 1924 (2013)).           The Commonwealth

responds that “an assertion of innocence does not confer jurisdiction on an

otherwise untimely filed PCRA petition.” Commonwealth’s Brief at 18 (citing

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42 Pa.C.S. § 9545(b)(1), and Commonwealth v. Fahy, 737 A.2d 214, 223

(Pa. 2014) (assertions of actual innocence do not excuse the time-bar)). We

agree. In doing so, we adopt as our own the reasoning of the PCRA court:

              [Appellant] further raised a claim under the United States
       Supreme Court’s decision in McQuiggin v. Perkins, 133 S.Ct.
       1924 (2013). This case held that a showing of actual innocence
       was sufficient to circumvent the statute of limitations for filing a
       federal habeas corpus petition under the Anti-Terrorism and
       Effective Death Penalty Act (AEDPA).        However, it did not
       address state collateral review proceedings or substantive
       constitutional issues.      As such, contrary to [Appellant’s]
       argument, McQuiggin did not announce a new relevant rule of
       constitutional law that has been made retroactive by either our
       Supreme Court or the Supreme Court of the United States.
       Therefore, [Appellant’s] claim was meritless.

PCRA Court Opinion, 2/1/16, at unnumbered 7. Appellant is not entitled to

relief under the third time-bar exception.

       In his final issue, Appellant challenges the legality of his mandatory life

sentence without parole on two fronts: Miller v. Alabama, ___ U.S. ___,

132 S.Ct. 2455 (2012), and Alleyne v. United States, ___ U.S. ___, 133

S.Ct. 211 (2015). Appellant’s Brief at 45–50.10 The Miller Court held that

“mandatory life without parole for those under the age of 18 at the time of

their crimes violated the Eighth Amendment’s prohibition on cruel and

unusual punishment.” Miller, 132 S.Ct. at 2460.

       Invoking Miller, Appellant acknowledges that he was twenty-two

years old at the time of his crimes. Appellant’s Brief at 46. However, he
____________________________________________


10
     The PCRA court did not address Appellant’s sentencing issues.



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relies on science to declare himself a juvenile and, therefore, ineligible for a

mandatory life-without-parole sentence:

      [Appellant’s] sentence is a disproportionate punishment as a
      mandatory life-without parole for a youth homicide offender,
      violat[es] the Eight Amendment’s (U.S.C.A.) prohibition on “cruel
      and unusual punishment” for the undisputed reasoning of a
      youth offender between the ages of 18 to 25 suffering from the
      same similar irresponsible characteristic and immature traits as
      those describe[d] in association with juvenile offenders.
      Drawing the line at 18 years places [Appellant] into the same
      categorical rule the United States Supreme Court reject[s] today
      as unconstitutional. . . . The qualities that distinguish juveniles
      from adults do not disappear when an individual turns 18.
      Expert testimony was given by Doctor Steinberg, lead scientist
      the age 18-to-25, are still susceptible to immaturities that will, in
      a foreseeable time, prove to be an unfortunate yet familiar
      transient phase. This is especially [true] when considering that
      biological immaturity is being used as a conduit for exposure to
      negative influence and, in many cases, has been in such manner
      since one’s juvenile upbringing.        A relevant yet neglected
      viewpoint when observing certain lifestyle behavior within
      impoverish[ed] and crime-producing neighborhoods within
      prevalent societies across the nation.

             Therefore, the same argument that is being declared under
      Miller . . . can rightfully as well as “scientifically” be argued here.
      The Court in Miller validated the brain does not mature until mid-
      20’s     (i.e.   25).       According     to    the    scientific brain
      studies . . . [t]here can be no bright line draw[n] at age 17.
      Science and social science expert testimony offered at the United
      States Supreme Court states the mind does not fully develop
      until mid-20’s (i.e. to 25).

            To that end, its [sic] the lower court opined opinion that
      [Appellant] herein was age 22 at the time of the alleged offense
      and he therefore does not fall within the range. . . . The lower
      court states the Court in Miller limited itself to age 17.
      [Appellant] contends the lower Court err[ed]. The United States
      Supreme Court validated the science studies and new brain
      imagining research study that brain wiring continues to develop
      until mid-20’s (i.e. 25). To that end, age became an element in
      sentence scheme. . . . And that as a sentencing factor it violated

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J-S89013-16


       the Eight[h] Amendment.            [Appellant] fits into that class of
       juveniles.

Appellant’s Brief at 45–46 (some internal citations omitted).11

       While we appreciate Appellant’s creative reasoning, Miller itself

precludes us from granting him relief. As the PCRA court opined:

             The Miller holding specifically limited itself to juveniles
       under eighteen years of age who were sentenced to life without
       parole for committing the crime of murder. Although [Appellant]
       was sentenced to life without parole and convicted of second
       degree murder, he was over eighteen years old at the time of
       the crime; he was twenty-to years old at the time of the crime.
       The circumstances of this case exceed the parameters of the
       Supreme Court’s Miller decision. Therefore, [Appellant’s] Miller
       claim was denied.

PCRA Opinion, 2/1/16, at unnumbered 8. See also Cintora, 69 A.2d at 764

(holding petitioner’s argument that Miller should be extended to included

offenders who were older than seventeen did not render PCRA petition

timely).

       Lastly, invoking Alleyne, Appellant argues that a jury should have

decided if his age was a mitigating factor, thereby precluding imposition of a

mandatory life-without-parole sentence.            Appellant’s Brief at 46–50.   The

Alleyne Court held, “Any fact that, by law, increases the penalty for a crime
____________________________________________


11
     We reject the Commonwealth’s argument that Appellant waived this
claim. The PCRA court did not strike Appellant’s supplemental filing, and it
addressed Appellant’s Miller-based argument in its Pa.R.A.P. 1925(a)
opinion. See Brown, 141 A.3d at 504–505 (“[W]hen a petitioner files
supplemental materials to a PCRA petition, and the PCRA court considers
such materials, an attempt by the Commonwealth to preclude consideration
of such materials fails.”).



                                          - 20 -
J-S89013-16


is an ‘element’ that must be submitted to the jury and found beyond a

reasonable doubt.” Alleyne, 133 S.Ct. at 2155. According to Appellant:

      Science and social science, Psychology and brain imaging studies
      demonstrate difference between adolescent and adult minds.
      Brain develop maturity is not [like] a machine[;] it does not
      have a switch to turn off at age 18. . . . The lower Court [erred
      t]o hold that the United States Supreme Court limited the
      scope . . . when the Court validated the science and social
      science and heard testimony by the Experts.           The Court
      accept[ed] those facts as true. Mid 20’s (i.e. 25).

            Wherefore, this Court should send this claim to the lower
      court and allow a jury to decide his juvenile [sic] mitigating
      factors. . . .

Id. at 50.

      In response, the Commonwealth argues waiver and lack of merit:

      [Appellant] never asserted [this Alleyne claim] in any of his
      filings before the PCRA court and thus failed to preserve it for
      this Court’s review. Pa.R.A.P. 302(a).

             In any event, the decision could not have conferred
      jurisdiction on the PCRA court to review [Appellant’s] petition.
      The Pennsylvania Supreme Court recently held that Alleyne does
      not apply retroactively to attacks on mandatory minimum
      sentences advanced on collateral review. See Commonwealth v.
      Washington, ___ A.3d ___, 2016 WL 3909088, *8 (Pa., decided
      July 19, 2016). The Court held that Alleyne sets forth no new
      rule of constitutional law as it “neither alters the range of
      conduct nor the class of persons punished by the law” and “is
      not of a groundbreaking, ‘watershed’ character.” Id. at 7, citing
      Alleyne, 133 S.Ct. at 2155.

Commonwealth’s Brief at 22–23 (some internal citations omitted).

      Upon review, we are constrained to agree with the Commonwealth for

the reasons it advances.     Appellant’s Alleyne challenge is waived and

meritless.   See Commonwealth v. Ligons, 971 A.2d 1125, 1163 (Pa.

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2009) (claims not raised in PCRA petition are waived) (citation omitted);

Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016) (holding

that Alleyne does not apply retroactively to cases pending on collateral

review).

     In conclusion, because Appellant’s PCRA petition was untimely and no

exceptions apply, the PCRA court correctly determined that it lacked

jurisdiction to consider the merits of Appellant’s PCRA petition and properly

dismissed it as untimely filed.   Accordingly, we affirm the PCRA court’s

October 20, 2015 Order.    Commonwealth v. Lawson, 90 A.3d 1, 8 (Pa.

Super. 2014).

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2017




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