J-S04002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
MARLON HURDLE                            :
                                         :
                   Appellant             :   No. 1130 MDA 2017

                 Appeal from the PCRA Order June 30, 2017
   In the Court of Common Pleas of Lancaster County Criminal Division at
                     No(s): CP-36-CR-0003270-1994


BEFORE: SHOGAN, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                           FILED MARCH 23, 2018

      Appellant, Marlon Hurdle, appeals pro se from the June 30, 2017 order

that denied his third petition filed pursuant to the Post Conviction Relief Act

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

      The PCRA court set forth the relevant facts and procedural history of

this matter as follows:

            On May 19, 1995, [Appellant] was tried by a jury,
      convicted of two counts of first degree murder, and subsequently
      sentenced to two life terms. Commonwealth v. Hurdle, 21 MDA
      2012, 2013 WL 11282815 (Pa. Super. 2013). According to
      testimony at trial, [Appellant] was a drug dealer. (N.T. Jury Trial
      Volume VI at 1300:11-24, 1304:4-5; N.T. Jury Trial Volume VII
      at 1471:2-15). On the day of the murders, after running out of
      drugs to sell, [Appellant] attempted to rob two would-be
      customers at gunpoint. (N.T. Jury Trial Volume VI at 1306:3-
      1311:6). When the two victims, who were seated in a van, would
      not give [Appellant] any money, [Appellant] fired a warning shot
      into the air. Id. When the victims still refused, [Appellant] fired
      eight shots at the victims in the van, killing the passenger with a
      shot to the head from mere “inches or a foot” away. [Appellant]
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     also shot and killed the driver with multiple shots to the head
     from a distance of about four feet. Id.; (N.T. Jury Trial Volume
     IX at 1845:13-16, 1684:18-1692:14).

             [Appellant] directly appealed the conviction, which was
     subsequently affirmed by the Superior Court. Commonwealth v.
     Hurdle, 685 A.2d 209 (Pa. Super. 1996). Appeal to the
     Pennsylvania      Supreme     Court   was   denied    in   1997.
     Commonwealth v. Hurdle, 694 A.2d 620 (Pa. 1997). On August
     19, 2011, [Appellant] filed his first, pro se, PCRA Petition.
     Amongst [Appellant’s] claims was an allegation of government
     interference because this Court denied him free access to trial
     transcripts. 21 MDA 2012. In response, I appointed counsel,
     Christopher P. Lyden, Esq., who subsequently filed a
     [Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
     Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
     banc)] no-merit letter. Agreeing that [Appellant’s] claims were
     meritless, I granted counsel’s Motion, and dismissed
     [Appellant’s] Petition, from which Order he appealed.
     Commonwealth v. Hurdle, [68 A.3d 355,] 21 MDA 2012, 2013
     WL 11282815 (Pa. Super. 2013) (summarizing the procedural
     history [and finding no government interference concerning the
     trial transcripts because Appellant had no pending PCRA petition
     when he requested the transcripts)]. The Superior Court
     affirmed my decision, and petition for allowance of appeal was
     denied by the Pennsylvania Supreme Court on July 16, 2013.
     [Commonwealth v. Hurdle,] 69 A.3d 601 [(Pa. 2013).]

           [Appellant’s] second PCRA petition was filed with this Court
     on March 23, 2016, arguing he was entitled to relief under
     Montgomery v. Louisiana, 136 S. Ct. 718 (2016) and Miller v.
     Alabama, 132 S. Ct. 2455 (2012), which I denied as meritless
     since he was twenty years old when he committed the murders.
     The Superior Court issued an Opinion affirming my decision on
     April 10, 2017. [Commonwealth v. Hurdle, 169 A.3d 1150,] 959
     MDA 2016 [(Pa. Super. 2017)].

            In the instant Petition, [Appellant] bases his request for
     relief, again, on the allegation that he was improperly denied
     access to trial transcripts for his August 19, 2011 PCRA petition.
     In support of this claim, [Appellant] pleads the PCRA’s “newly
     discovered facts” exception, 42 Pa.C.S.A. § 9545(b)(1)(ii), citing
     Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017) as a newly
     discovered fact. [Appellant] argues that a “Burton hearing”

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      should be held to “assess [Appellant’s] ability to access the
      public record.” (Statement).

PCRA Court Opinion, 9/11/17, at 1-3.

      The PCRA court denied Appellant’s PCRA petition on June 30, 2017.

This timely appeal followed.      Both Appellant and the PCRA court have

complied with Pa.R.A.P. 1925.

      On appeal, Appellant raises the following issues:

      1. Did the PCRA Court err in holding, without an[] evidentiary
         hearing, that [Appellant’s] petition was untimely where
         [Appellant] is a pro se prisoner petitioner with no access to
         the public record and our Supreme Court has held that it is a
         missapplication of 42 PA. C.S.A. sec. 9545(b)(1)(ii) to hold
         such petitioners to a due diligence requirement to access the
         public record?

      2. Did the PCRA Court misapply 42 PA. C.S.A. 9545(b)(1)(ii) by
         dismissing [Appellant’s] petition without holding a hearing to
         a[ss]ess [Appellant’s] ability to access the public record?

Appellant’s Brief at 5.

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether that court’s

determination is free of legal error. Commonwealth v. Phillips, 31 A.3d

317, 319 (Pa. Super. 2011). The PCRA court’s findings will not be disturbed

unless there is no support for the findings in the certified record. Id.

      A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final.      42 Pa.C.S. § 9545(b)(1). This time

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition.    Commonwealth v.

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Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). A judgment of sentence

“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.”          42

Pa.C.S. § 9545(b)(3).

       However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),

and (iii), is met.1 A petition invoking one of these exceptions must be filed

within sixty days of the date the claim first could have been presented. 42

Pa.C.S. § 9545(b)(2).         In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove
____________________________________________


1   The 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)(i), (ii), and (iii).




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specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Hernandez, 79 A.3d at 652.

        This Court affirmed Appellant’s judgment of sentence on July 10,

1996, and on June 11, 1997, our Supreme Court denied Appellant’s petition

for allowance of appeal.        Commonwealth v. Hurdle, 695 A.2d 209 (Pa.

Super. 1996) (unpublished memorandum), appeal denied, 694 A.2d 620

(Pa. 1997). Appellant’s judgment of sentence became final ninety days later

on September 9, 1997, when the time for filing a petition for a writ of

certiorari expired. U.S. Sup. Ct. 13; 42 Pa.C.S. § 9545(b)(3). Therefore, in

order to be timely, Appellant’s PCRA petition had to be filed by September 9,

1998. Appellant’s instant petition, filed on May 30, 2017, is thus, patently

untimely.

        Appellant    asserts     that     our    Supreme   Court’s   decision    in

Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017), satisfies the after-

discovered-facts exception2 to the PCRA’s timing requirements and affords

him relief. Appellant’s Brief at 10. Specifically, Appellant avers as follows:

        Had Commonwealth v. Burton been decided at the time
        [Appellant’s] [f]irst PCRA was pending the Post-Conviction Court
        would have been required to hold a hearing to determine
        [Appellant’s] ability to exercise due diligence to protect his own
        interest as a pro se prisoner petitioner.

Id. at 11. Appellant’s argument is misplaced.

____________________________________________


2   42 Pa.C.S. § 9545(b)(1)(ii).



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      In Burton, our Supreme Court held “the presumption that information

which is of public record cannot be deemed ‘unknown’ for purposes of

subsection 9545(b)(1)(ii) does not apply to pro se prisoner petitioners.”

Burton, 158 A.3d at 638.         However, Burton did not eliminate the

requirement that an incarcerated pro se petitioner must exercise due

diligence.   Therefore, in order for Burton to apply, the petitioner must

identify what new facts were discovered and plead and prove that those

facts were unknown and could not have been discovered sooner with the

exercise of due diligence. Commonwealth v. Shiloh, 170 A.3d 553, 559

(Pa. Super. 2017).

      Appellant baldly asserts that “he needed the transcript” to perfect his

PCRA petition.   Appellant’s Brief at 15.   However, the only “new fact” he

raises is the decision in Burton.      It is well settled that “subsequent

decisional law does not amount to a new ‘fact’ under section 9545(b)(1)(ii)

of the PCRA.”    Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011).

Other than citing Burton, Appellant fails to establish what “fact” he

discovered. The PCRA court recognized this failing, and it denied Appellant’s

third PCRA petition as untimely.   See PCRA Court Opinion, 9/11/17, at 5

(“[T]he only ‘new fact’ [Appellant] claims to have discovered is our Supreme

Court’s Burton decision.”).

      After review, we conclude that the PCRA court properly dismissed

Appellant’s patently untimely third PCRA petition because no exception to


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the time-for-filing requirements of the PCRA was satisfied. Accordingly, we

affirm the PCRA court’s order.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/23/2018




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