J-S85005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

GREGORY S. BURKE

                         Appellant                   No. 500 EDA 2016


                Appeal from the PCRA Order January 14, 2016
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0325182-1986


BEFORE: PANELLA, J., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                       FILED DECEMBER 27, 2016

      Appellant, Gregory S. Burke, appeals, pro se, from the order

dismissing his fifth petition pursuant to the Post Conviction Relief Act

(“PCRA”) as untimely. We conclude that the PCRA court did not abuse its

discretion in concluding that Burke had failed to establish an exception to the

PCRA’s timeliness requirements. We therefore affirm.

      We have previously set forth the factual and procedural history

pertinent to Burke’s convictions.

      On August 13, 1980, at approximately 7:00 p.m., a gunpoint
      robbery occurred at a grocery store located in Philadelphia. The
      owner of the store was shot and killed. The homicide went
      unsolved until late October of 1985, when the police were
      informed that Appellant, along with Donald and Stanley Watson,
      were the perpetrators in the incident.

      On January 20, 1986, Appellant, during questioning, confessed
      to the crimes. At trial he entered a negotiated guilty plea. The
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     terms of the plea were that Appellant would give truthful
     testimony in the prosecution against the third conspirator
     Stanley Watson; the degree of murder would be graded second
     degree; the court would impose the mandatory term of life
     imprisonment for murder; and, the Commonwealth would
     recommend concurrent terms for the remaining charges. By this
     agreement, Appellant avoided conviction for murder of the first
     degree thereby escaping a possible death sentence and
     consecutive terms on the related offenses. After a complete
     colloquy, the court accepted the plea.

     On February 17, 1987, before imposition of sentence, Appellant
     filed a petition to withdraw his plea alleging that it was
     involuntary because he suffered mental problems resulting from
     a head injury. The court denied the petition and imposed the
     agreed upon sentence of life imprisonment for murder of the
     second degree, concurrent terms of ten to twenty years for
     robbery, and two and one-half to five years for possessing an
     instrument of crime. Appellant then appealed to this Court in
     1987, but subsequently withdrew that appeal. In July of 1989,
     [A]ppellant filed a first pro se petition for relief under the Post
     Conviction Relief Act. Thereafter, a nunc pro tunc appeal was
     granted.

     Upon appeal to this Court, we affirmed Appellant’s judgment of
     sentence for second-degree murder and vacated Appellant’s
     sentence for robbery after determining that the robbery
     conviction merged with Appellant’s second-degree murder
     conviction for sentencing purposes. We also remanded the
     matter for resentencing on Appellant’s criminal conspiracy
     conviction, noting that a suspended sentence was not sanctioned
     under the sentencing scheme. [On January 11, 1994, the trial
     court sentenced Appellant to a concurrent term of five to ten
     years of imprisonment on the charge of criminal conspiracy.]
     Appellant filed a petition for allowance of appeal to our Supreme
     Court. On August 3, 1993, the Pennsylvania Supreme Court
     denied the petition.

     Appellant filed a second PCRA petition in May 1997. The PCRA
     court dismissed the second petition as untimely in October 1997.
     Appellant did not file an appeal from that dismissal.

     Appellant filed a third PCRA petition on March 27, 2007, which
     was dismissed on April 17, 2009. Appellant filed an appeal to this

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      Court on May 4, 2009. We affirmed the order dismissing the
      petition on March 10, 2010, holding that we lacked jurisdiction
      because the third PCRA petition was untimely and Appellant
      failed to plead and prove that a statutory exception applied.

      [Appellant filed his fourth petition] on May 10, 2010. Appellant
      also filed a petition for writ of habeas corpus on July 13, 2010,
      the allegations of which the PCRA court … treated as part of the
      PCRA petition. Upon the PCRA court’s December 20, 2010
      issuance of its intent to dismiss the petition, Appellant filed an
      objection on December 28, 2010, a motion for an evidentiary
      hearing on March 22, 2011, and an amended PCRA petition on
      August 22, 2012. The PCRA court dismissed the PCRA petition on
      June 4, 2013.

Commonwealth v. Burke, 1979 EDA 2013, 1-4 (Pa. Super. 2014)

(unpublished memorandum) (citations and brackets omitted).

      This Court affirmed the dismissal of Burke’s fourth PCRA petition. See

id., at 1. The Supreme Court of Pennsylvania denied review on April 7,

2015. On October 30, 2015, Burke filed a petition for writ of habeas corpus

in the Civil Division of the Court of Common Pleas of Philadelphia County.

The matter was subsequently transferred to the criminal division, and Burke

filed another petition for writ of habeas corpus on December 4, 2015.

      The PCRA court treated Burke’s petitions as a single PCRA petition,

and, on December 21, 2015, issued notice of its intent to dismiss the

petition as untimely. On January 14, 2016, the PCRA court dismissed the

petition, and this timely appeal followed.




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       On appeal, Burke raises eight issues, but only two that even arguably

impact the PCRA court’s conclusion that the petition was untimely. 1 The

timeliness     of    a     post-conviction          petition    is   jurisdictional.   See

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

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 proves an exception to the time for

filing the petition. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A PCRA petition

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

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

651-652 (citing 42 Pa.C.S.A. § 9545(b)(2)).

       Burke’s judgment of sentence became final on November 1, 1993,

when the ninety-day time period for filing an appeal to Supreme Court of the

United States expired. See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13.

Therefore, Burke’s petition is patently untimely, and the PCRA court did not

have jurisdiction to entertain his petition unless he could establish the

applicability of an exception.

       Both    arguments      put   forth      by    Burke     regarding   the   timeliness

requirement assert a single piece of newly discovered evidence. Specifically,

Burke contends that a Commonwealth witness committed perjury at trial
____________________________________________


1
 Notably, Burke does not argue that the PCRA court erred in addressing his
petitions under the PCRA. See Appellant’s Brief, at 4.



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based upon an assertion that unspecified records indicate that the witness

was incarcerated at the time that he testified that he heard Burke’s

confession outside of prison. However, Burke raised these allegations in his

fourth PCRA petition, which was filed on May 10, 2010. See Burke, at 11-

13. Thus, he cannot establish that October 30, 2015, the date he filed the

instant petition, was within 60 days of the date that he learned of this

evidence. As a result, he cannot establish the applicability of the after-

discovered evidence timeliness exception. See Hernandez, 79 A.3d at 651-

52. Furthermore, this matter has been previously litigated. See Pa.C.S.A. §

9544(a)(3).

      We cannot conclude that the PCRA court erred or abused its discretion

in dismissing the petition as untimely. We therefore affirm the order.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/27/2016




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