J-S39041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TYRONE SLOWE                               :
                                               :
                       Appellant               :   No. 3 EDA 2019

              Appeal from the Order Entered November 30, 2018
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0002955-2008


BEFORE:      GANTMAN, P.J.E., STABILE, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                         FILED AUGUST 19, 2019

        Appellant Tyrone Slowe appeals from the order of the Court of Common

Pleas of Delaware County denying his pro se petition pursuant to the Post

Conviction Relief Act (PCRA),1 his petition for post-conviction DNA testing, and

his petition for discovery materials. We affirm.

        Appellant was charged in connection with the April 16, 2008 murders of

Tyrone Nelson and Jimmy Strong in Upper Darby.            On February 18, 2009,

Appellant entered a nolo contendere plea to two counts of third-degree murder

and one count of persons not to possess a firearm. Thereafter, Appellant was

sentenced to an aggregate term of seventeen to thirty-four years’

incarceration. Appellant filed a post-sentence motion to withdraw his plea,

which the lower court denied.          On March 3, 2010, this Court affirmed the

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1   42 Pa.C.S.A. §§ 9541-9546.
____________________________________
* Former Justice specially assigned to the Superior Court.
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judgment of sentence and on September 16, 2010, our Supreme Court denied

Appellant’s petition for allowance of appeal.

      On December 22, 2010, Appellant filed his first PCRA petition. The PCRA

court subsequently appointed counsel, who filed a petition to withdraw along

with a no-merit letter. The PCRA court issued notice of its intent to dismiss

the petition without a hearing pursuant to Pa.R.Crim.P. 907.    On May 18,

2011, the PCRA court dismissed the petition.

      On June 24, 2014, this Court affirmed the PCRA court’s order dismissing

Appellant’s petition. The panel noted that Appellant wished to raise certain

claims of ineffectiveness of counsel for the first time on appeal in a

supplemental brief; however, this Court determined that Appellant could only

raise the ineffectiveness claims in a new PCRA petition that met the PCRA

timeliness requirements.    On July 16, 2014, Appellant filed a petition for

allowance of appeal in the Supreme Court at 506 MAL 2014.

      Just two days later, while Appellant’s appeal related to his first PCRA

petition was pending in the Supreme Court, Appellant filed the instant PCRA

petition on July 18, 2014, which the PCRA court held in abeyance during the

pendency of Appellant’s appeal of his first petition. On November 18, 2014,

our Supreme Court denied Appellant’s petition for allowance of appeal.

      On May 26, 2015, Appellant filed a pro se motion for DNA testing. On

December 27, 2016, Appellant attempted to file an amended PCRA petition.

On May 3, 2017, Appellant filed a “Motion for Updated Discovery Materials.”




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      On September 14, 2018, the PCRA court issued Rule 907 notice of its

intent to dismiss the petition.     On November 30, 2018, the PCRA court

dismissed Appellant’s second PCRA petition (filed on July 18, 2014), his

amended PCRA petition (filed on December 27, 2016), his motion for DNA

testing, and his motion for request updated discovery materials. Appellant

filed this appeal and complied with the PCRA court’s direction to file a concise

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

      Appellant raises the following issues for our review:

      I.     Whether PCRA Court erred by ruling Appellant’s second
             PCRA Petition was untimely based upon the date the
             evidence was discovered?

      II.    Whether Lower Court erred or abused its discretion by not
             being in compliance with Reeves v. Fayette, 897 F.3d 154
             (3rd Cir. 2018), when Appellant asserted ineffective
             assistance claims based on Trial and PCRA Counsel’s failure
             to present or discover evidence that was exculpatory in
             nature, to overcome time bar pursuant to Schlup v. Delo,
             513 U.S. 298 (1995)?

      III.   Whether PCRA Court erred as a matter of law pursuant to
             Rule 907 Notice to Dismiss, by failing to give notice
             pertaining to second PCRA Petition as untimely filed,
             violated Due Process?

      IV.    Whether PCRA Court committed legal error by failing to
             issue Notice of Intent to Dismiss second PCRA Petition and
             Motion for Updated Discovery Materials, therefore denying
             Appellant procedural due process by not affording him a
             right to file written objections to dismissal?

      V.     Whether Trial Court erred when holding Trial and PCRA
             Counsels were not ineffective for failing to investigate eight
             (8) eyewitnesses, was irrelevant to prove Appellant’s
             innocence?


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      VI.    Whether Counsel’s failure to seek suppression of unduly
             suggestive photo identification was irrelevant?

      VII.   Whether PCRA    Court   erred    when    it   concluded
             Commonwealth Brady violation claims were irrelevant?

      VIII. Whether PCRA Court erred as a matter of law or its
            conclusion was contrary to 42 Pa.C.S. § 9543.1 as amended,
            when denying Post Conviction DNA testing?

Appellant’s Brief, at 5 (renumbered for ease of review).

      Our standard of review is as follows:

      When reviewing the denial of a PCRA petition, we must determine
      whether the PCRA court's order is supported by the record and
      free of legal error. Generally, we are bound by a PCRA court's
      credibility determinations. However, with regard to a court's legal
      conclusions, we apply a de novo standard.

Commonwealth v. Johnson, 635 Pa. 665, 139 A.3d 1257, 1272 (2016)

(quotation marks and quotations omitted).

      As an initial matter, we note that Appellant filed his second PCRA petition

on July 18, 2018, while his appeal of this Court’s dismissal of his first PCRA

petition was still pending in our Supreme Court. These circumstances have

been addressed before by our prior precedent:

      Preliminarily, Pennsylvania law makes clear the trial court has no
      jurisdiction to consider a subsequent PCRA petition while an
      appeal from the denial of the petitioner's prior PCRA petition in
      the same case is still pending on appeal. Commonwealth v.
      Lark, 560 Pa. 487, 493, 746 A.2d 585, 588 (2000). See also
      Commonwealth v. Montgomery, 181 A.3d 359, 364 (Pa.Super.
      2018) (en banc ), appeal denied, ––– Pa. ––––, 190 A.3d 1134
      (2018) (reaffirming that Lark precludes consideration of
      subsequent PCRA petition while appeal of prior PCRA petition is
      still pending). A petitioner must choose either to appeal from the
      order denying his prior PCRA petition or to file a new PCRA
      petition; the petitioner cannot do both, i.e., file an appeal and also
      file a PCRA petition, because “prevailing law requires that the

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      subsequent petition must give way to a pending appeal from the
      order denying a prior petition.” Commonwealth v. Zeigler, 148
      A.3d 849, 852 (Pa.Super. 2016). In other words, a petitioner who
      files an appeal from an order denying his prior PCRA petition must
      withdraw the appeal before he can pursue a subsequent PCRA
      petition. Id. If the petitioner pursues the pending appeal, then the
      PCRA court is required under Lark to dismiss any subsequent
      PCRA petitions filed while that appeal is pending. Lark, supra.

      Pennsylvania law also states unequivocally that no court has
      jurisdiction to place serial petitions in repose pending the outcome
      of an appeal in the same case. Id. See also Commonwealth v.
      Porter, 613 Pa. 510, 523, 35 A.3d 4, 12 (2012) (stating that
      holding serial petitions in abeyance pending appeal in same case
      perverts PCRA timeliness requirements and invites unwarranted
      delay in resolving cases, as well as strategic litigation abuses).

Commonwealth v. Beatty, 207 A.3d 957, 961 (Pa.Super. 2019).

      As noted above, Appellant timely filed his first PCRA petition on

December 22, 2010. Thereafter, the PCRA court granted appointed counsel’s

petition to withdraw and issued notice of its intent to dismiss the petition. On

May 18, 2011, the PCRA court dismissed the petition, and on June 24, 2014,

this Court affirmed the PCRA court’s order dismissing Appellant’s petition. On

July 16, 2014, Appellant chose to file a petition for allowance of appeal in the

Supreme Court.

      Thereafter, Appellant also filed a second PCRA petition on July 18, 2014,

while his appeal related to his first PCRA petition was pending in the Supreme

Court.   Pursuant to Lark, Appellant was not permitted to pursue both an

appeal of the denial of his first PCRA petition and the filing of a new PCRA

petition in the lower court. As such, the PCRA court should have dismissed

the July 18, 2014 petition that was filed during the pendency of his appeal to



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the Supreme Court; the lower court had no jurisdiction to hold this petition in

abeyance pending the outcome of the appeal. See Lark, supra.

      To the extent that Appellant suggests this Court should review the denial

of his “amended” PCRA petition filed on December 27, 2016, we agree with

the PCRA court’s finding that this petition was untimely filed. It is well-

established that “the PCRA's timeliness requirements are jurisdictional in

nature and must be strictly construed; courts may not address the merits of

the issues raised in a petition if it is not timely filed.” Commonwealth v.

Leggett,   16   A.3d   1144,   1145 (Pa.Super.    2011)    (citations   omitted).

Generally, a PCRA petition “including a second or subsequent petition, shall

be filed within one year of the date the judgment of sentence becomes final.”

42 Pa.C.S.A. § 9545(b)(1).     A judgment of sentence becomes final at the

conclusion of direct review or the expiration of the time for seeking the review.

42 Pa.C.S.A. § 9545(b)(3).

      However, Pennsylvania courts may consider an untimely petition if the

appellant can explicitly plead and prove one of the three exceptions

enumerated in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii), which include: (1) the

petitioner’s inability to raise a claim as a result of governmental interference;

(2) the discovery of previously unknown facts or evidence that would have

supported a claim; or (3) a newly-recognized constitutional right that has been

held to apply retroactively by the Supreme Court of the United States or the

Supreme Court of Pennsylvania. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).




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      As noted above, Appellant entered a nolo contendere plea on February

18, 2009, this Court affirmed the judgment of sentence on March 3, 2010,

and the Supreme Court denied Appellant’s petition for allowance of appeal on

September 16, 2010. Appellant did not seek further review in the Supreme

Court of the United States.   As a result, Appellant’s judgment of sentence

became final on December 15, 2010, after the expiration of the ninety-day

period in which he was allowed to seek review in the U.S. Supreme Court.

See U.S. Sup.Ct. R. 13. As such, Appellant needed to file his PCRA petition

by December 15, 2011. Thus, Appellant’s petition filed on December 27, 2016

is facially untimely.

      Moreover, Appellant failed to plead and prove that any of the exceptions

set forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) applies in this case.    While

Appellant formulates multiple arguments to suggest that he is entitled to a

remand based on “exculpatory” evidence, his assertions are completely

undeveloped as he does not identify this alleged evidence, provide any detail

as to when such evidence was discovered, or explain why such information

could not have been obtained earlier. As such, Appellant has not shown that

he is entitled relief from the PCRA timeliness requirements.

      We note that Appellant also claims the PCRA court did not give proper

notice of its intent to dismiss his petition without a hearing pursuant to Rule

907. While Appellant acknowledges that the PCRA court did file notice of its

intent to dismiss his petition and outlined the procedure for Appellant to




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respond to the notice, Appellant claims he was denied due process as the

notice did not state Appellant’s petition was being dismissed as untimely filed.

      Regardless of the merits of Appellant’s challenge to the adequacy of the

PCRA court’s notice pursuant to Rule 907, we need not review this claim

further as Appellant has failed to plead and prove the applicability of one of

the timeliness exceptions as forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super. 2013) (quoting

Commonwealth v. Pursell, 561 Pa. 214, 749 A.2d 911, 917 n. 7 (2000)

(finding that the absence of Rule 907 notice does not automatically warrant

reversal, when the PCRA petition is facially untimely and one of the timeliness

exceptions does not apply)). Accordingly, we conclude that the PCRA court

did not err in dismissing Appellant’s petition.

      Appellant also claims that the PCRA court erred in denying his motion

pursuant to Section 9543.1 of the PCRA statute, which allows petitioners to

seek forensic DNA testing.     We may proceed to review this claim as “the

PCRA's one-year time bar does not apply to motions for the performance of

forensic DNA testing under Section 9543.1.” Commonwealth v. Walsh, 125

A.3d 1248, 1252 (Pa.Super. 2015) (quoting Commonwealth v. Brooks, 875

A.2d 1141, 1146 (Pa.Super. 2005) (emphasis in original)).

      Motions for post-conviction DNA tests, while considered post-conviction

petitions under the PCRA, are “clearly separate and distinct from claims

pursuant to other sections of the PCRA.” Commonwealth v. Perry, 959 A.2d

932, 938 (Pa.Super. 2008) (quoting Commonwealth v. Williams, 909 A.2d

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383, 384 n. 1 (Pa.Super. 2006)). A successful request for post-conviction

DNA testing pursuant to Section 9543.1 “allows … a convicted individual to

first obtain DNA testing which could then be used within a PCRA petition to

establish new facts in order to satisfy the requirements of an exception under

42 Pa.C.S.A. § 9545(b)(2).” Commonwealth v. Gacobano, 65 A.3d 416,

419 (Pa.Super. 2013).

       To obtain post-conviction DNA testing under Section 9543.1, an

individual must present a prima facie case demonstrating that the:

       (i) identity of or the participation in the crime by the perpetrator
       was at issue in the proceedings that resulted in applicant's
       conviction and sentencing; and

       (ii) DNA testing of the specific evidence, assuming exculpatory
       results, would establish:

              (A) the applicant's actual innocence of the offense for which
              the applicant was convicted[.]

42 Pa.C.S.A. § 9543.1(c)(3)(i)-(ii)(A).2

       Moreover,

       If the evidence was discovered prior to the applicant's conviction,
       the evidence shall not have been subject to the DNA testing
       requested because the technology for testing was not in existence
       at the time of the trial or the applicant's counsel did not seek
       testing at the time of the trial in a case where a verdict was
       rendered on or before January 1, 1995, or the applicant's counsel
       sought funds from the court to pay for the testing because his

____________________________________________


2 We note that our Legislature amended Section 9543.1 on October 24, 2018.
As the amended language did not become effective until December 23, 2018,
we will review Appellant’s challenge to the PCRA court’s November 30, 2018
ruling pursuant to the prior version of the statute.

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      client was indigent and the court refused the request despite the
      client's indigency.

42 Pa.C.S. § 9543.1(a)(2). In other words, a petitioner “does not meet the

requirements of § 9543.1(a)(2) [if] the technology existed at the time of his

trial, the verdict was rendered after January 1, 1995, and the court never

refused funds for the testing.” Commonwealth v. Williams, 587 Pa. 304,

310, 899 A.2d 1060, 1063 (2006).

      In his motion, Appellant asked for DNA testing to be performed on pieces

of evidence recovered by police during their initial investigation of the crime

scene where two men were murdered on April 16, 2008. The DNA testing that

Appellant requests in the instant motion was available to Appellant when he

entered his plea agreement on February 18, 2009 and the court did not refuse

funds for testing. See 42 Pa.C.S.A. § 9543.1(a)(2); Commonwealth v. B.

Williams, 35 A.3d 44, 51 (Pa.Super. 2011) (upholding the denial of the

request for DNA testing as DNA testing was available at the time of the

appellant’s trial, he was convicted after January 1, 1995, and the trial court

did not refuse funds for testing); Commonwealth v. Perry, 959 A.2d 932,

938 (Pa.Super. 2008) (same). As such, the PCRA court properly concluded

that Appellant had not met the threshold requirements for DNA testing under

Section 9543.1(a)(2). See Order, 11/30/18, at 13.

      Moreover, Appellant does not provide argument or analysis to challenge

the PCRA court’s finding that he failed to plead a prima facie case that

exculpatory evidence would establish his actual innocence as required by

Section 9543.1(c)(3). Even if we assume that Appellant’s DNA was absent

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from pieces of evidence obtained from the crime scene, Appellant has made

no attempt to show how DNA testing would establish his actual innocence. In

addition to the fact that a witness came forward to testify that Appellant

admitted to the murders, Appellant confessed to his investigator in a recorded

phone call from prison that he was present at the scene of the murders;

Appellant was repeatedly cautioned that this conversation was being recorded.

As a result, we conclude that the PCRA court did not err in denying Appellant’s

request for post-conviction DNA testing under Section 9543.1.

      For the foregoing reasons, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/19




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