J-S01002-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JUSTIN ANTHONY GLOVER, JR.                 :
                                               :
                       Appellant               :   No. 1161 MDA 2018

               Appeal from the PCRA Order Entered June 25, 2018
                In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0005101-2006


BEFORE:      PANELLA, P.J., MURRAY, J., and PELLEGRINI, J.

MEMORANDUM BY PANELLA, P.J.:                           FILED AUGUST 09, 2019

        Justin Anthony Glover, Jr. appeals, pro se, from the order dismissing his

second petition pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

        A jury convicted Glover of first-degree murder, conspiracy to commit

murder and abuse of corpse1 in connection with the death of Wesley Person.

The trial court imposed a mandatory sentence of life imprisonment without

parole.2 Glover appealed. This Court affirmed, see Commonwealth v.

Glover, 1033 MDA 2009 (Pa Super., filed Mar. 3, 2010) (unpublished

____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. § 2502, § 903, and § 5510, respectively.

2 Additionally, the trial court imposed a 10 to 20 year term of imprisonment
for Glover’s conspiracy conviction and a 1 to 2 year term of imprisonment for
his abuse of corpse conviction.
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memorandum), and our Supreme Court denied allocatur on August 30, 2010.

Glover did not file a direct appeal with the United States Supreme Court.

      On March 25, 2011, Glover filed his first petition pursuant to the PCRA,

alleging several claims of ineffective assistance of trial counsel. Notably,

Glover asserted trial counsel’s ineffectiveness for failing to call character

witnesses. The PCRA court denied Glover’s petition. A panel of this Court

affirmed. See Commonwealth v. Glover, 285 MDA 2013 (Pa. Super., filed

Mar. 3. 2014) (unpublished memorandum). Glover did not file a petition for

allocatur with the Pennsylvania Supreme Court.

      Glover filed the instant petition on March 15, 2018, alleging he was

entitled to a new trial because his co-defendant, Lawrence Murrell, received a

new trial following federal habeas corpus review. Specifically, Glover claimed

Murrell received relief due to his claim that trial counsel was ineffective for

failing to call character witnesses. Because he raised the identical claim in a

previous PCRA petition, Glover asserts that the grant of relief to Murrell while

denying Glover relief for the same issue would constitute a deprivation of due

process and equal protection of the law.

      Noting Glover’s petition was facially untimely and that his claim did not

meet a timeliness exception, the PCRA court issued a Pa.R.Crim.P 907 notice

of its intent to dismiss the petition. Despite Glover’s response, the court

ultimately dismissed his petition as untimely on June 22, 2018. This timely

appeal follows.




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      Prior to reaching the merits of Glover’s claims, we must first consider

the timeliness of his PCRA petition. See Commonwealth v. Miller, 102 A.3d

988, 992 (Pa. Super. 2014).

      A PCRA petition, including a second or subsequent one, must be
      filed within one year of the date the petitioner’s judgment of
      sentence becomes final, unless he pleads and proves one of the
      three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
      judgment becomes final at the conclusion of direct review by this
      Court or the United States Supreme Court, or at the expiration of
      the time for seeking such review. 42 Pa.C.S.[A.] § 9545(b)(3).
      The PCRA’s timeliness requirements are jurisdictional; therefore,
      a court may not address the merits of the issues raised if the
      petition was not timely filed. The timeliness requirements apply to
      all PCRA petitions, regardless of the nature of the individual claims
      raised therein. The PCRA squarely places upon the petitioner the
      burden of proving an untimely petition fits within one of the three
      exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (some internal

citations and footnote omitted).

      Glover’s judgment of sentence became final on November 1, 2010, when

the time to file a petition for writ of certiorari with the United States Supreme

Court expired. See 42 Pa.C.S.A. § 9545(b)(3) (“[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 time for seeking the review”); see also U.S. Sup. Ct.

R. 13 (providing appellants ninety days in which to seek review with the United

State Supreme Court).     His petition, filed more than seven years later, is

facially untimely. Thus, the PCRA court lacked jurisdiction to review Glover’s

petition unless he was able to successfully plead and prove one of the

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statutory    exceptions     to   the   PCRA’s    time-bar.   See   42   Pa.C.S.A.   §

9545(b)(1)(i)-(iii).

       The PCRA provides three exceptions to its time bar:

       (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.A. § 9545(b)(1)(i)-(iii). A petitioner asserting one of these

exceptions must file a petition within one year of the date the claim could have

first been presented. See 42 Pa.C.S.A. § 9545(b)(2).3

       Glover argues that he meets the “newly discovered fact” exception to

the PCRA’s time-bar. See PCRA petition, 3/15/18, at 4; Appellant’s Brief, at

x. Glover claims he learned in February 2018 that his co-defendant, Lawrence

Murrell, received a new trial following a grant of federal habeas corpus relief

based upon an issue previously deemed meritless in Glover’s case. See id. As


____________________________________________


3 On October 24, 2018, the General Assembly amended section 9545(b)(2) in
order to extend the time for filing a petition from 60 days to one year from
the date the claim could have been presented. See 2018 Pa.Legis.Serv.Act
2018-146 (S.B. 915), effective December 24, 2018.



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Glover filed his petition within 60 days4 of learning of Murrell’s new trial, he

contends his petition is timely pursuant to 42 Pa.C.S.A. § 9545(b)(2).

       Pursuant to Commonwealth v. Cruz, 851 A.2d 870 (Pa. 2004), it is

possible that Glover has satisfied the previously unknown fact exception to

the time-bar. However, we need not reach that issue, as we agree with the

Commonwealth that even if Glover qualified for the newly discovered fact

exception to the PCRA’s time-bar, he would not be entitled to relief.

       In order to be eligible for PCRA relief, a petitioner must plead and prove

that “the allegation of error has not been previously litigated or waived.” See

42 Pa.C.S.A. § 9544(a)(3). An issue had been previously litigated for PCRA

purposes if “the highest appellate court in which the petitioner could have had

review as a matter of right has ruled on the merits of the issue.” Id., at

9544(a)(2); Commonwealth v. Beasley, 678 A.2d 773, 778 (Pa. 1996).

“[T]he fact that a petitioner presents a new argument or advances a new

theory in support of a previously litigated issue will not circumvent the

previous litigation bar.” Commonwealth v. Roane, 142 A.3d 79, 94 (Pa.

Super. 2016) (citations omitted).


____________________________________________


4At the time Glover’s petition was filed, petitioners were still required to file
a petition within 60 days of the date the claim could have been presented.
However, the amendment to section 9545(b)(2) applies to claims arising one
year before the effective date of the section, i.e., December 24, 2017. See
2018 Pa.Legis.Serv.Act 2018-146(S.B. 915), effective December 24, 2018.
Therefore, because Glover’s claim did not arise until February of 2018, he had
until February of 2019 to file the instant petition.


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      Here, Glover challenges trial counsel’s failure to present character

witnesses in light of the United States District Court’s decision to grant Murrell

a new trial partially on that basis; however, Glover previously presented this

challenge in his first PCRA petition, and this Court found no merit to those

assertions. See Commonwealth v. Glover, 285 MDA 2013 at 7 (Pa. Super.

filed Mar. 3. 2014) (unpublished memorandum). One of the reasons for that

decision was that Glover failed to identify any potential character witness in

his PCRA petition. See Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa.

2009) (requiring a PCRA petitioner asserting ineffective assistance of counsel

for failure to call a witness to, inter alia, identify the witness).

      Here, Glover has once again failed to identify any potential witness that

counsel should have called at trial. The fact that Murrell had witnesses ready

and able to testify to his good character does not establish that Glover had

witnesses ready and able to testify to Glover’s good character. Under these

circumstances, we agree with the Commonwealth that Glover has failed to

plead sufficient facts to entitle him to relief under the PCRA.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/2019

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