J-S55007-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

TYRONE MARTIN,

                        Appellant                 No. 1805 EDA 2013


                 Appeal from the PCRA Order May 21, 2013
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-1100501-2001


BEFORE: BOWES, SHOGAN, and OTT, JJ.

MEMORANDUM BY BOWES, J.:                     FILED SEPTEMBER 10, 2014

     Tyrone Martin appeals from the May 21, 2013 order denying his fifth

PCRA petition. The petition was untimely, and we affirm.

     On December 3, 2003, Appellant was convicted of first-degree murder,

robbery, possession of an instrument of crime, and carrying an unlicensed

firearm.   The offenses were premised upon the following evidence.       On

June 27, 2000, Appellant arranged to meet Glenn Moses in order to

purchase a large quantity of cocaine.   Mr. Moses was met by his friend,

Lonnie Jernigan, at the pre-designated location for the drug transaction,

which was 23rd and Ellsworth Streets, Philadelphia.   Mr. Jernigan testified

that he observed the following. Mr. Moses arrived at the scene with a red

book bag and deposited it in the op

Acura Legend. Appellant exited the car and shot Mr. Moses. Mr. Jernigan
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did not report the incident to police until April, 2001, when he was arrested

for an unrelated crime.

      On January 28, 2004, Appellant was sentenced to life imprisonment

plus twelve and one-half to twenty-five years.       On April 19, 2005, we

affirmed the judgment of sentence rejecting nine issues, and our Supreme

Court denied review on November 10, 2005. Commonwealth v. Martin,

876 A.2d 466 (Pa.Super. 2005), appeal denied, 887 A.2d 1240 (Pa. 2005).

Appellant filed a timely PCRA petition on October 20, 2006, and averred that

trial counsel was ineffective for failing to present an alibi defense. Counsel

was appointed, but filed a no-merit letter and motion to withdraw. Counsel




counsel indicated that Appellant was unable to provide any means by which

counsel could contact the witness and that counsel had unsuccessfully

endeavored to find both the former girlfriend and other alibi witnesses for

Appellant. Counsel was permitted to withdraw, and, after sending notice of

its intent to dismiss the petition without a hearing, the PCRA court dismissed



was filed from the denial.

      Thereafter, Appellant filed three other PCRA petitions.     In none of

them did he either seek reinstatement of his appellate rights from the denial

of his first PCRA petition, or suggest that he was unaware that the petition

had been denied. A PCRA petition filed on October 20, 2008 was dismissed

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on April 15, 2009.     In that petition, Appellant charged PCRA counsel with

abandonment and improperly presenting a no-merit letter.        A January 7,

2010, PCRA petition was denied on August 17, 2010. Appellant then sought

a new trial based upon after-discovered evidence on November 8, 2010, and

that petition was dismissed on May 17, 2010. Appellant filed an appeal from

that dismissal.    We concluded therein that the November 8, 2010 PCRA




by February 8, 2007. Commonwealth v. Martin, 53 A.3d 935 (Pa.Super.

2012) (unpublished memorandum at 2).

      The present appeal is from the dismissal of a PCRA petition filed on



entitled to relief pursuant to 42 Pa.C.S. §9545(b)(1)(i), where governmental



brief at ii.   Our Supreme Court has observed that limited appellate review

applies in the PCRA context. Commonwealth v. Spotz, 84 A.3d 294 (Pa.

2014).    As delineated in Commonwealth v. Feliciano, 69 A.3d 1270,

1274-75 (Pa.Super. 2013) (citation omitted),

            Our standard of review of the denial of a PCRA petition is
      limited to examining whether the court's rulings are supported
      by the evidence of record and free of legal error. This Court
      treats the findings of the PCRA court with deference if the record
      supports those findings. It is an appellant's burden to persuade
      this Court that the PCRA court erred and that relief is due.




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judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). In this case,



became final on February 8, 2006, after he failed to seek review in the



of appeal. 42 Pa.C.S. § 9545(b)(3) (judgment of sentence becomes final at

the conclusion of direct review or the expiration of the time for seeking the

review). He had until February 8, 2007, to file a timely PCRA petition, and

his present petition was filed outside of that time frame.

      There are three exceptions to the one-year time bar: when the



when the defendant has recently discovered the facts upon which his PCRA

claim is predicated, or when either our Supreme Court or the United States

Supreme Court has recognized a new constitutional right and made that

right retroactive.   42 Pa.C.S. § 9545(b)(1)(i-iii).         Commonwealth v.

Brandon, 51 A.3d 231, 233-

exceptions to this [one-year] time requirement: (1) interference by

government officials in the presentation of the claim; (2) newly discovered

facts; and (3) an after-

the burden of pleading and proving the applicability of any exception.

Feliciano, supra; 42 Pa.C.S. § 9545(b)(1).




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exception . . . shall be filed within 60 days of the date the claim could have



      Appellant herein invokes the governmental interference exception,



maintains that he never received a copy of the order denying him relief

during his first PCRA proceeding and that there was a breakdown in the

operation of the court. However, he is essentially asserting that this default

prevented him from presenting meritorious issues. The only harm flowing to

Appellant from this purported lack of notice was that he could not appeal

from the denial of his first petition.

      Appellant cannot invoke the governmental interference exception

because he did not present this claim within sixty days of when he first

learned of his alleged lack of proper notice. When Appellant filed his second

petition, he was aware that he had been denied relief in his first PCRA

proceeding and should have raised the claim at that time. Indeed, Appellant

has been fully aware of the outcome of the first post-conviction proceeding

for years. Appellant has not timely invoked the governmental interference

exception since he did not file a petition seeking reinstatement of his

appellate rights with respect to his first PCRA petition within sixty days of

when he actually learned of its denial.        Commonwealth v. Cintora, 69

A.3d 759 (Pa.Super. 2013).

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/10/2014




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