J-S31010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 TYRONE MARTIN                           :
                                         :
                   Appellant             :   No. 2092 EDA 2017

                  Appeal from the PCRA Order May 30, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-1100501-2001


BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY SHOGAN, J.:                         FILED AUGUST 09, 2018

      Appellant, Tyrone Martin, appeals pro se from the denial of his sixth

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. We affirm.

      A prior panel of our Court set forth the factual background of this case

as follows:

             On December 3, 2003, Appellant was convicted of first-
      degree murder, robbery, possession of an instrument of crime,
      and carrying an unlicensed firearm. The offenses were premised
      upon the following evidence. On June 27, 2000, Appellant
      arranged to meet Glenn Moses in order to purchase a large
      quantity of cocaine. Mr. Moses was met by his friend, Lonnie
      Jernigan, at the pre-designated location for the drug transaction,
      which was 23rd and Ellsworth Streets, Philadelphia. Mr. Jernigan
      testified that he observed the following. Mr. Moses arrived at the
      scene with a red book bag and deposited it in the open driver’s
      side window of an Acura Legend. Appellant exited the car and
      shot Mr. Moses. Mr. Jernigan did not report the incident to police
      until April, 2001, when he was arrested for an unrelated crime.
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             On January 28, 2004, Appellant was sentenced to life
      imprisonment plus twelve and one-half to twenty-five years. On
      April 19, 2005, we affirmed the judgment of sentence …, and our
      Supreme Court denied review on November 10, 2005.
      Commonwealth v. Martin, 876 A.2d 466 (Pa.Super. 2005),
      appeal denied, 887 A.2d 1240 (Pa. 2005).

Commonwealth v. Martin, 107 A.3d 223, 1805 EDA 2013 (Pa. Super. filed

September 10, 2014) (unpublished memorandum at 1-2).

      Appellant filed a timely first PCRA petition on October 20, 2006, and

counsel was appointed.    The PCRA court dismissed Appellant’s petition on

March 17, 2008. Appellant did not file an appeal.

      Appellant then filed four more PCRA petitions. Appellant’s second PCRA

petition was denied on April 15, 2009, and Appellant did not pursue an appeal.

The PCRA court denied Appellant’s third PCRA petition on August 17, 2010,

and Appellant did not appeal. Appellant’s fourth PCRA petition was denied on

May 17, 2011, and the PCRA court’s order was affirmed on appeal.

Commonwealth v. Martin, 53 A.3d 935, 1371 EDA 2011 (Pa. Super. 2012

filed June 12, 2012) (unpublished memorandum).        The PCRA court denied

Appellant’s fifth PCRA petition on May 21, 2013, and this Court affirmed the

denial of PCRA relief. Commonwealth v. Martin, 107 A.3d 223, 1805 EDA

2013 (Pa. Super. filed September 10, 2014) (unpublished memorandum).

      On January 25, 2017, Appellant, pro se, filed his sixth PCRA petition,

which is the petition underlying the instant appeal. On February 13, 2017,

Appellant supplemented his PCRA petition with a “Post-Conviction DNA Testing

Motion.”   The PCRA court informed Appellant of its intent to dismiss the

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petition without a hearing pursuant to Pa.R.Crim.P. 907 on April 26, 2017, and

on May 2, 2017, Appellant filed a pro se response alleging “newly discovered

evidence.” The PCRA court denied Appellant’s petition on May 30, 2017, and

this appeal followed. Both Appellant and the PCRA court have complied with

Pa.R.A.P. 1925.

      In Appellant’s pro se appeal, he purports to raise four issues. Appellant

argues: 1) he obtained a Glock Model 26 Reference Guide (“the Glock Guide”)

which he claims is newly discovered evidence; 2) trial counsel was ineffective

for failing to “address gun issues at trial;” 3) he was at his mother’s birthday

at the time of the crime; and 4) DNA evidence can prove his innocence.

Appellant’s Brief at 1-2.

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”   Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc)).    This Court is limited to determining whether the evidence of

record supports the conclusions of the PCRA court and whether the ruling is

free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.

2016).   The PCRA court’s findings will not be disturbed unless there is no

support for them in the certified record. Commonwealth v. Lippert, 85 A.3d

1095, 1100 (Pa. Super. 2014).




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       Initially, we must determine whether the PCRA court had jurisdiction to

review the merits of Appellant’s issue based on the timing of Appellant’s

petition. The timeliness of a PCRA petition is a jurisdictional threshold that

may not be disregarded in order to reach the merits of the claims raised in a

PCRA petition that is untimely. Commonwealth v. Lawson, 90 A.3d 1, 4

(Pa. Super. 2014) (citing Commonwealth v. Murray, 562 Pa. 1, 753 A.2d

201, 203 (Pa. 2000)).      Appellant’s judgment of sentence became final on

Wednesday, February 8, 2006, when the time expired for Appellant to file a

petition for a writ of certiorari in the United States Supreme Court. See 42

Pa.C.S. § 9545(b)(3) (for purposes of calculating the timeliness of a petition,

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”); U.S.Sup.Ct.R. 13 (petition for a writ of certiorari seeking review of

a judgment of a lower state court that is subject to discretionary review by

the state court of last resort is timely when it is filed with the Clerk within

ninety days after entry of the order denying discretionary review). Therefore,

Appellant had until February 8, 2007, to file a timely PCRA petition. See 42

Pa.C.S. § 9545(b)(1) (A PCRA petition, “including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes

final....”).   Appellant filed the instant PCRA petition on January 25, 2017,




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nearly ten years after his judgment of sentence became final. Hence, the

petition is facially untimely.

       The jurisdictional time bar can be overcome only by satisfying one of

the three statutory exceptions codified at 42 Pa.C.S. § 9545(b)(1)(i)–(iii).1

Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017). Further, “[a]ny

petition invoking an exception ... shall be filed within 60 days of the date the

claim could have been presented.”              42 Pa.C.S. § 9545(b)(2).      The PCRA

petitioner bears the burden of proving the applicability of one of the

exceptions. Commonwealth v. Edmiston, 65 A.3d 339, 346 (Pa. 2013).

       While Appellant’s pro se brief is not artfully drafted, it appears that

Appellant    is   attempting      to   assert    the   applicability   of   42   Pa.C.S.

§ 9545(b)(1)(ii). Appellant avers that the Glock Guide is a newly discovered



____________________________________________


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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fact and an exception to the PCRA time bar. Appellant’s Brief at 1. Appellant

fails, however, to establish why he could not obtain the Glock Guide earlier,

except to state that the prison did not have the book in its library. Id. The

Glock Guide is an owner’s manual, and it was available at the time of

Appellant’s 2003 trial. Appellant does not explain why, through the exercise

of reasonable diligence, he was unable to acquire a copy of the Glock Guide

for thirteen years. After review, we conclude that Appellant did not exercise

due diligence, and he has failed to satisfy any exception to the PCRA time bar.

       Assuming for the sake of argument that the Glock Guide was an after-

discovered fact and satisfied an exception to the PCRA’s timing requirements,

the Glock Guide would not have changed the result of Appellant’s trial. First,

we point out that Appellant did not provide a copy of the Glock Guide to this

Court; thus, we are unable to determine what information it contains that

could be relevant to Appellant’s case. Second, even if we were to assume that

Appellant’s argument, wherein he claims that the Glock Guide states that a

Glock 26 has a barrel length of three inches is accurate,2 it in no way helps

his defense.

       Appellant argues that at trial a witness testified that the gun used in the

murder had a barrel length of between seven to nine inches, but the Glock

Guide states that a Glock 26 has a barrel length of only three inches. Id.



____________________________________________


2   Appellant’s Brief at 1.

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However, the record reveals that the eyewitness testified that the murder

weapon had a total length of seven to nine inches, but the barrel length of

the gun was three inches. N.T., 11/25/03, at 206-207. Thus, if Appellant

correctly represents the specifications in the Glock Guide, then the Glock

Guide actually corroborates the eyewitness’s testimony.3

       Nevertheless, we conclude that Appellant’s PCRA petition was untimely

and no exceptions apply; therefore, the PCRA court lacked jurisdiction to

address the claims presented and grant relief. Commonwealth v. Fairiror,

809 A.2d 396, 398 (Pa. Super. 2002) (PCRA court lacks jurisdiction to hear

untimely petition). Likewise, we lack the authority to address the merits of

any substantive claims raised in the PCRA petition. See Commonwealth v.

Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (“[J]urisdictional time limits go to

a court’s right or competency to adjudicate a controversy.”). Accordingly, we

conclude that no relief is due.

       For the reasons set forth above, Appellant is entitled to no relief.

Accordingly, we affirm the order denying Appellant’s PCRA petition.


____________________________________________


3   We briefly note Appellant’s serial request for DNA testing, and we agree
with the PCRA court’s conclusion that this issue was raised in prior PCRA
petitions and denied. PCRA Court Opinion, 10/27/17, at 3. A review of the
certified record reveals that Appellant concedes that he raised this claim in his
first and second PCRA petitions. Motion for DNA Testing, 2/13/17. However,
as we noted above, Appellant did not appeal the denials of either of those
PCRA petitions, and therefore, any challenge relative to DNA testing was
waived.



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       Order affirmed.4

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/18




____________________________________________


4  Appellant’s May 7, 2018 application for relief, wherein he requests a new
trial and/or reinstatement of “all appeal rights,” is hereby DENIED.

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