J-A10045-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 JORGE MARTINEZ                            :
                                           :
                    Appellant              :    No. 2861 EDA 2017

                  Appeal from the PCRA Order July 25, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0006386-2009


BEFORE:    GANTMAN, P.J., McLAUGHLIN, J., and RANSOM*, J.

MEMORANDUM BY RANSOM, J.:                                FILED MAY 23, 2018

      Appellant, Jorge Martinez, appeals pro se from the order entered

July 25, 2017, denying as untimely his second petition for collateral relief filed

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We

affirm.

      In its opinion, the PCRA court fully and correctly set forth the relevant

facts and procedural history of this case. See PCRA Court Opinion (PCO),

11/6/17, at 1-2, 4-5. For the convenience of the reader, we briefly note that,

in 2008, Appellant shot and killed Nicholas Cruz. During Appellant’s trial, the

Commonwealth presented the testimony of an eyewitness to the murder, a

witness who saw Appellant fleeing the scene, a ballistics expert, and the

medical examiner. A jury found Appellant guilty of murder of the first degree




____________________________________
* Retired Senior Judge assigned to the Superior Court.
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and possession of instrument of crime,1 and Appellant was sentenced to life

imprisonment.2       After the trial court denied his post-sentence motions,

Appellant appealed to this Court, which affirmed the judgment of sentence.

Appellant then petitioned for allowance of appeal to the Supreme Court of

Pennsylvania, which denied his petition on June 26, 2012. Commonwealth

v. Martinez, 43 A.3d 529 (Pa. Super. 2012) (unpublished memorandum),

appeal denied, 47 A.3d 846 (Pa. 2012).

        Appellant filed his first PCRA petition in July 2012 and amended it in May

2014. The PCRA court dismissed the first PCRA petition in May 2015, and

Appellant appealed to this Court, which affirmed in March 2016. Appellant

petitioned for allowance of appeal to the Supreme Court of Pennsylvania,

which denied his petition in August 2016. Commonwealth v. Martinez, 144

A.3d 189 (Pa. Super. 2016) (unpublished memorandum), appeal denied, 145

A.3d 724 (Pa. 2016).

        Appellant filed the instant PCRA petition on September 15, 2016. This

PCRA petition alleged ineffective assistance of counsel, prosecutorial

misconduct, a “miscarriage of justice,” and “manifest constitutional errors,”

all of which “undermined the truth determining process to such a degree that

they require reversal.” PCRA Pet., 9/15/16, at 1. However, the PCRA petition


____________________________________________


1   18 Pa.C.S. § 2502(a) and § 907(a), respectively.
2   The Commonwealth never sought the death penalty for Appellant.


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made no claim of governmental interference or other improper obstruction by

government officials and made no challenge to the jury or sentencing

procedures.    In November 2016, without seeking the PCRA court’s leave,

Appellant filed an amended petition, alleging that, due to his conviction for

murder of the first degree, his sentence should have been determined by the

jury and not the judge. Am. PCRA Pet., 11/30/16, at 26, 31.       Appellant’s

PCRA petition was dismissed as untimely by the PCRA court in July 2017. This

appeal followed. The PCRA court ordered Appellant to file a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and

Appellant complied. The PCRA court issued a responsive opinion.

      Appellant now raises the following issues for our review:

      [1.] Is Your Appellant Entitled To Post-Conviction Relief In The
      Form Of Remand For An Evident[ia]ry Hearing Since The Court(s)
      Below Rendered Constructional Error(s) During Your Appellant’s
      Trial And Sentencing Hearing?

      [2.] Does [sic] Your Appellant’s Claims Raised Within The
      Pertinent PCRA PETITION: Lack Of Statutory Authorization; Lack
      Of Subject Matter Jurisdiction; And Constructional Error, Have
      Been Recognized By Our Courts As Unwaiverable Claims, Which
      Can Be Challenged (Reviewable Sua Sponte) At Any Time During
      Petitioner’s Incarceration?

Appellant’s Brief at 7 (PCRA court’s answers omitted) (capitalization and

underlining in original).

      In reviewing an appeal from the denial of PCRA relief, “this Court is

limited to ascertaining whether the evidence supports the determination of

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

v. Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017) (citation omitted).

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        The   timeliness     of   a   post-conviction   petition   is   jurisdictional.

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

of sentence is final, unless the petition alleges and the petitioner proves one

of the three exceptions to the time limitations for filing the petition set forth

in Section 9545(b) of the statute. See 42 Pa.C.S. § 9545(b).3 Here, the PCRA

court concluded that it lacked jurisdiction over Appellant’s second petition,

because the petition was untimely and because Appellant failed to satisfy an

exception to the PCRA’s time bar.

        Appellant’s sentence became final on September 24, 2012, ninety days

after the Supreme Court of Pennsylvania denied Appellant’s petition for



____________________________________________


3   The three 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).

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allowance of appeal on June 26, 2012. U.S.Sup.Ct.R. 13. Appellant thus had

one year thereafter to file a PCRA petition – i.e., until September 24, 2013.

42   Pa.C.S.   §   9545(b)(1).     Appellant    filed   the   current   petition   on

September 15, 2016, almost three years late. Hence, Appellant’s petition was

patently untimely.

      Appellant attempts to circumvent the time-bar by asserting that he is

entitled to one of the exceptions to the time-bar – specifically, the

“governmental      interference”   exception,    42     Pa.C.S.   §   9545(b)(1)(i).

Appellant’s Brief at 13.    Appellant argues that the fact that the trial court

dismissed the jury immediately after the recording of its verdict constitutes

governmental interference. Appellant maintains that, since he was convicted

of murder of the first degree, the jury and not the judge should have

determined his sentence. Id. at 14 (citing 42 Pa.C.S. § 9711(a)(1)).

      However, Appellant did not raise this exception in his PCRA petition.

“Issues not raised in the lower court are waived and cannot be raised for the

first time on appeal.”     Pa.R.A.P. 302(a).    Appellant has therefore failed to

preserve this argument by not including it in his PCRA petition.

      Although Appellant filed an amended PCRA petition, we cannot consider

any arguments raised therein, because Appellant did not receive – nor even

seek -- the PCRA court’s permission to file an amended petition.            A PCRA

petitioner may not raise new claims by merely supplementing a pending PCRA

without court authorization; failure to obtain leave of the PCRA court waives


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such claims. Commonwealth v. Mason, 130 A.3d 601 (Pa. 2015). Thus,

Appellant’s amended PCRA petition failed to preserve his argument as to why

his petition allegedly qualifies for an exception to the PCRA’s jurisdictional

timeliness requirements.

      Accordingly, as Appellant’s second PCRA petition was untimely, this

Court lacks jurisdiction and cannot consider any of his remaining challenges

on appeal.    Hernandez, 79 A.3d at 651.       Having discerned no abuse of

discretion or error of law, we affirm the order below.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/18




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