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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :       IN THE SUPERIOR COURT OF
                                       :             PENNSYLVANIA
                  v.                   :
                                       :
BYRON LAWRENCE,                        :           No. 740 EDA 2017
                                       :
                       Appellant       :


             Appeal from the PCRA Order, February 10, 2017,
               in the Court of Common Pleas of Philadelphia
         Criminal County Division at No. CP-51-CR-1100011-1991


BEFORE: STABILE, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED APRIL 27, 2018

     Byron Lawrence appeals pro se from the February 10, 2017 order

entered in the Court of Common Pleas of Philadelphia County that dismissed,

without a hearing, his third petition filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

     The PCRA court set forth the following:

           On April 29, 1993, [appellant] was tried and
           convicted, by a jury, of three counts each of
           aggravated assault and criminal conspiracy, two
           counts each of murder in the first degree, possessing
           an instrument of crime, corrupt organizations and
           possession of a controlled substance with the intent
           to distribute, before the Honorable Juanita K. Stout.
           On February 2, 1995, following the denial of
           post-verdict motions, [appellant] was sentenced to
           life imprisonment.     [Appellant] filed a notice of
           appeal, and on September 10, 1996, the
           Pennsylvania Superior Court affirmed the trial court’s
           judgment of sentence followed by the Pennsylvania
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          Supreme Court denying allocatur on February 24,
          1997.[Footnote 2]

                [Footnote    2]   Commonwealth      v.
                Lawrence, 686 A.2d 1365 (Pa.Super.
                1996) (table), appeal denied, 690 A.2d
                1162 (Pa. 1997).

          [Appellant] filed his first PCRA, pro se, on May 6,
          1998. Michael G. Paul, Esquire, was appointed and
          subsequently filed an amended petition, which was
          dismissed on April 26, 2000. A subsequent appeal
          was affirmed by the Pennsylvania Superior Court on
          March 7, 2001 and allocatur was denied on
          August 29, 2001.[Footnote 3] On May 15, 2001,
          [appellant] filed a second pro se PCRA petition, and
          amended PCRA on September 13, 2005, with the
          assistance of court appointed counsel, Jeremy C.
          Gelb, Esquire. The petition was subsequently
          dismissed as untimely without exception on
          March 23, 2006. Following an appeal by [appellant],
          the Superior Court affirmed on March 12, 2007, with
          the    Supreme     Court    denying   allocatur   on
          September 19, 2007.[Footnote 4]

                [Footnote    3]   Commonwealth      v.
                Lawrence, 777 A.2d 505 (Pa.Super.
                2001) (table), appeal denied, 784 A.2d
                115 (Pa. 2001) (table).

                [Footnote    4]   Commonwealth      v.
                Lawrence, 927 A.2d 653 (Pa.Super.
                2007) (table), appeal denied, 932 A.2d
                75 (Pa. 2007) (table).

          The instant petition was filed on July 15, 2010,
          followed by several amended petitions dated
          December 20, 2010, July 25, 2012, December 20,
          2013, and August 19, 2014.               Pursuant to
          Pa.R.Crim.P. 907, this court sent a notice of intent to
          dismiss the petition as untimely without exception on
          November 17, 2016. In response to this court’s 907
          notice, [appellant] filed another petition on



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            December 7, 2016.[1] This court formally dismissed
            the petition on February 10, 2017.[Footnote 5]
            [Appellant] timely filed a notice of appeal to the
            Pennsylvania Superior Court on February 23, 2017.

                 [Footnote 5] The order was issued more
                 than twenty days after [appellant] was
                 served with notice of the forthcoming
                 dismissal  of   his  [PCRA]    petition.
                 Pa.R.Crim.P. 907.

PCRA court opinion, 4/19/17 at 1-2.

     The record reflects that the PCRA court did not order appellant to file a

concise   statement   of   errors   complained   of   on   appeal   pursuant   to

Pa.R.A.P. 1925(b). The PCRA court did, however, file an opinion.

     Appellant raises the following issues for our review:

            1)   Did the the [sic] PCRA Court error [sic] in not
                 granting [appellant] a hearing to determine
                 ‘similarly like circumstances’ between the
                 United States Supreme Court view of a juvenile
                 and the State of Pennsylvania’s description of a
                 minor in 1 Pa.C.S.[A.] § 1991 (Where a minor
                 is described as a person under the age of 21),
                 as it relates to the United States Supreme
                 Courts [sic] imposition of the illegality of a
                 mandatory life sentence without the possibility
                 of parole for a homicide offense committed
                 while a juvenile, violates the 8th Amendment
                 prohibition on cruel and unusual punishment?

            2)   Did the PCRA Court error [sic] in disregarding
                 [appellant’s] due diligence in proving his
                 “Actual Innocence” since the replies to his fliers
                 posted arrived years after [appellant’s]
                 conviction, Although [sic] these fliers for the

1 We note that the record reveals that on December 6, 2016, in response to
the PCRA court’s Rule 907 notice, appellant filed “[appellant’s] pro se
objections to the court’s 907 notice” (full capitalization omitted).


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                    truth of the matter produced two (2) new
                    eye-witnesses and one (1) recantation of a
                    Commonwealth witness who (according to his
                    affidavit) personally knew the assailant,
                    without a hearing to determine the extent of
                    these witnesses [sic] recollection and what
                    they actually witnessed?

              3)    Did the PCRA Court error [sic] in not granting
                    [appellant] a hearing for his claim of “Actual
                    Innocence” in violating the Pennsylvania
                    Corrupt Organizations Act, and in doing so
                    denied [appellant’s] Constitutional right to
                    equal protection, U.S.Const.amend.XIV § 1,
                    when the indictment surrounding the violation
                    of PCOA was infact [sic] the lenchpen [sic] to
                    convict [appellant] of two (2) homicides in a
                    consolidated trial?

Appellant’s brief at 4.

         All PCRA petitions, including second and subsequent petitions, must be

filed within one year of when a defendant’s judgment of sentence 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 the time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).

The Pennsylvania Supreme Court has held that the PCRA’s time restriction is

constitutionally sound. Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa.

2004). In addition, our supreme court has instructed that the timeliness of

a PCRA petition is jurisdictional. If a PCRA petition is untimely, a court lacks

jurisdiction over the petition. Commonwealth v. Callahan, 101 A.3d 118,




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120-121 (Pa.Super. 2014) (courts do not have jurisdiction over an untimely

PCRA); see also Commonwealth v. Wharton, 886 A.2d 1120 (Pa. 2005).

       Here, appellant’s judgment of sentence became final on May 27, 1997,

which was 90 days after our supreme court denied discretionary review on

February 24, 1997.2          See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903;

Commonwealth         v.    Cintora,      69   A.3d    759,   763       (Pa.Super.   2013);

U.S. Sup.Ct.R. 13.      Therefore, appellant’s petition, filed on July 15, 2010,

which was more than 13 years after his judgment of sentence became final,

is facially untimely. As a result, the PCRA court lacked jurisdiction to review

appellant’s petition, unless appellant alleged and proved one of the statutory

exceptions to the time-bar, as set forth in 42 Pa.C.S.A. § 9545(b)(1).

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

the government has interfered with the petitioner’s ability to present the

claim, when the petitioner has newly-discovered facts upon which his PCRA

claim is predicated, or when either the Pennsylvania Supreme Court or the

United States Supreme Court has recognized a new constitutional right and

made     that   right     retroactive.        42     Pa.C.S.A.     §     9545(b)(1)(i-iii);




2 We note that the 90th day after our supreme court denied discretionary
review was May 25, 1997, which was a Sunday, and that Monday, May 26,
1997 was Memorial Day. Accordingly, appellant’s judgment of sentence
became final on May 27, 1997. See Pa.R.Civ.P. 106(b) (“[w]henever the
last day of [any period of time referred to in any rule] shall fall on Saturday
or Sunday, or on any day made a legal holiday by the laws of this
Commonwealth or of the United States, such day shall be omitted from the
computation [of time].”).


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Commonwealth v. Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012).

Any petition invoking an exception to the time-bar must be filed within

60 days of the date that the claim could have been presented. 42 Pa.C.S.A.

§ 9545(b)(2). The petitioner bears the burden of pleading and proving the

applicability of any exception.    42 Pa.C.S.A. § 9545(b)(1).    If a petitioner

fails to invoke a valid exception to the PCRA time-bar, this court may not

review the petition.    See 42 Pa.C.S.A. § 9545(b)(1)(i-iii).      Additionally,

challenges   to   the   legality   of    the   sentence   are   never   waived.

Commonwealth v. Berry, 877 A.2d 479, 482 (Pa.Super. 2005) (en banc),

appeal denied, 917 A.2d 844 (Pa. 2007). This means that a court may

entertain a challenge to the legality of the sentence, so long as the court has

jurisdiction to hear the claim. In the PCRA context, jurisdiction is tied to the

filing of a timely PCRA petition. Id.

      In his PCRA petition and three amendments thereto, appellant

attempted to assert an exception to the jurisdictional time-bar under

Section 9545(b)(1)(iii), which permits a petitioner to seek relief when there

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.”   Id.   In his July 15, 2010 PCRA petition, despite being

convicted of committing two murders at the age of 19, appellant relied on

the United States Supreme Court’s decision in Graham v. Florida, 560 U.S.



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48 (2010), wherein the High Court held that it is unconstitutional to

sentence a juvenile to life in prison without the possibility of parole for

non-homicide crimes.      Thereafter, in his July 25, 2012 amended PCRA

petition, as well as the amendments that followed, appellant relied on the

United States Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460

(2012), which held that a sentence of life imprisonment without the

possibility of parole is unconstitutionally cruel and unusual punishment when

imposed upon defendants convicted of murder who were under the age of 18

at the time of their crimes. The United States Supreme Court’s decision in

Montgomery v. Louisiana,            U.S.     , 136 S.Ct. 718 (2016), held that

its decision in Miller applies retroactively to cases on state collateral review.

      The record reflects that in the memorandum of law that appellant

attached to his July 10, 2010 PCRA petition, appellant admits that he was

19 years old at the time of his crimes, but claims that he “was well under

the age of 25 in terms of his maturity.” (Appellant’s “memorandum of law in

support of amended [PCRA petition],” at 3.)          In his brief to this court,

appellant seemingly abandons his new constitutional right claim under Miller

and   Montgomery      and   appears    to   argue   that   his   life   sentence   is

constitutionally infirm because various inapplicable Pennsylvania statutes

define a “minor” as “a person under 21” and because appellant had an

undeveloped brain at the time that he committed his crimes. (Appellant’s

brief at 13-19.)



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         Regardless of the avenue that appellant pursues in his effort to obtain

relief on this claim, appellant arrives at a dead end simply because this court

has repeatedly rejected the same argument. See, Cintora, 69 A.3d at 764

(holding that petitioners who were 18 and older at the time they committed

murder are not within the ambit of Miller); see also Commonwealth v.

Furgess, 149 A.3d 90, 92-93 (Pa.Super. 2016) (holding that a petitioner’s

assertion of the time-bar exception set forth in Section 9545(b)(1)(iii) must

be rejected because the constitutional rule rendering mandatory sentences

of   life        imprisonment      without    possibility     of     parole   on        juveniles

unconstitutional applied only to those defendants who were under 18 when

the offenses were committed).

         Appellant     next      attempts    to   invoke     the     newly-discovered-facts

exception to the jurisdictional time-bar set forth in Section 9545(b)(1)(ii).

To qualify under this exception, “a petitioner need only establish that the

facts upon which the claim is based were unknown to him and could not

have been ascertained by the exercise of due diligence.” Commonwealth

v. Burton, 158 A.3d 618, 629 (Pa. 2017).                           Our supreme court has

articulated that due diligence “does not require perfect vigilance and

punctilious care, but merely a showing the party has put forth reasonable

effort      to    obtain   the    information     upon      which    a   claim     is    based.”

Commonwealth v. Cox, 146 A.3d 221, 230 (Pa. 2016) (citation and

quotation marks omitted).



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     As noted, appellant filed his PCRA petition on July 15, 2010. Appellant

attached to that petition the “sworn affidavit” of Darrien Gresham.

(Appellant’s PCRA petition, 7/15/10, at Exhibit A.)       We note that this

document bears a notarial seal stamp of James O. Lindberg and is seemingly

signed by James O. Lindberg and dated by Mr. Lindberg, “6/30/10.” (Id.)

We further note that no other dates appear on the document. Nevertheless,

in the petition, appellant fails to satisfy the due diligence aspect of the

newly-discovered-facts exception because he entirely fails to address why he

was unable to obtain Darrien Grisham’s “sworn affidavit” and present it at an

earlier date with the exercise of due diligence.   In fact, appellant merely

attaches the document to his PCRA petition without an explanation as to how

it was even obtained.

     Likewise, in appellant’s December 20, 2010 “amendment to existing

[PCRA petition],” appellant attached an undated “affidavit” of Alexandra

Crump.   We note that this “affidavit” bears a notarial seal stamp and is

seemingly signed by notary public Tracey M. Anderson, but it is not dated.

Nevertheless, in his amendment to existing PCRA petition, appellant, once

again, fails to satisfy the due diligence aspect of the newly-discovered-facts

exception because he entirely fails to address why he was unable to obtain

Ms. Crump’s undated “affidavit” and present it at an earlier date with the

exercise of due diligence. In fact, once again, appellant merely attaches the

undated “affidavit” with no explanation as to how it was even obtained.



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Therefore, appellant failed to satisfy the due diligence aspect of the

newly-discovered-facts exception.3




3 We note that in his brief to this court, and in a seeming attempt to
demonstrate that he exercised due diligence, appellant claims that he “sent
50 and eventually 100 flyers to family and friends every summer since his
conviction became final in 1995, to be posted in the area where the incident
took place[; c]entrally the park, neighborhood stores, bars and especially
the internet ‘facebook[.’”] (Appellant’s brief at 21.) Appellant’s attempt to
convince this court of his due diligence, however, does not rectify his failure
to satisfy the due diligence aspect of the newly-discovered-facts exception
within his petition.

      Additionally, in his objection to Rule 907 notice, appellant attached
copies of grand jury testimony from proceedings that took place on
November 10, 1989; a statement of Charles Mobley that was notarized on
March 25, 1992; and a statement of Amber Brown that was notarized on
January 6, 1993.      Notwithstanding the fact that the statements were
addressed to appellant’s trial counsel and all of the attachments to the
Rule 907 notice predated appellant’s convictions, appellant never filed an
amended PCRA petition attaching these documents and establishing that he
was unable to obtain them and present them at an earlier date with the
exercise of due diligence.

       Also in his objection to Rule 907 notice, appellant attached an undated
“affidavit” of Charles Johnson that bears a notarial stamp and is signed and
dated January 11, 2012, by notary public of Theresa M. Castro; an “affidavit
of Terik Morris” that is dated September 12, 2013; and an “affidavit” of
Erik Rogers that is notarized by Suzanne L. Domatakes and dated April 6,
1999.     Once again, appellant never filed an amended PCRA petition
attaching these documents and pleading and proving that he exercised due
diligence to obtain them.

      We further note that even assuming arguendo that appellant’s
objection to Rule 907 notice could be considered an amended PCRA petition,
appellant’s mere attachment of these documents, without any explanation as
to why he was unable to obtain them at an earlier date with the exercise of
due diligence, would not satisfy the due diligence aspect of the
newly-discovered-facts exception.


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      Appellant   finally   claims   that   he   was   wrongly    convicted   under

Pennsylvania’s Corrupt Organizations Act, 18 Pa.C.S.A. § 911.             Because

appellant fails to invoke a valid exception to the PCRA time-bar with respect

to this claim, the claim may not be reviewed.                    See 42 Pa.C.S.A.

§ 9545(b)(1)(i-iii) (setting forth the three narrow exceptions to the one-year

jurisdictional time-bar).

      Therefore, the PCRA court lacked jurisdiction to review appellant’s

petition, and we may not review the petition on appeal.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 4/27/18




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