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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ALONZO GARWOOD                             :
                                               :
                       Appellant               :   No. 977 EDA 2019

              Appeal from the PCRA Order Entered March 14, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0608053-1979


BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.:                             FILED JULY 01, 2020

        Alonzo Garwood appeals pro se from the denial of his fourth petition for

relief under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. He claims that the PCRA court erred when it dismissed his petition as

untimely. However, Garwood filed his petition more than one year after his

judgment of sentence became final and he has not pleaded and proven any of

the three exceptions to the PCRA time-bar. Accordingly, we affirm.

        In 1980, a jury convicted Garwood of three counts of second-degree

murder1 and other related offenses, arising from his gang related firebombing

of an occupied house in Philadelphia. The trial court sentenced Garwood to

three terms of life imprisonment. This Court affirmed Garwood’s judgment of


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1   18 Pa.C.S.A. § 2502(b).
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sentence on January 14, 1987, and our Supreme Court denied Garwood’s

petition for allowance of appeal on September 15, 1987. Garwood’s first,

counseled, petition for collateral relief2 was denied in 1989, after which this

Court affirmed the denial and our Supreme Court denied the petition for

allowance of appeal. This Court affirmed the dismissal of Garwood’s second

and third petitions in 2008 and 2017 respectively.

       Garwood filed the instant petition, his fourth, on February 5, 2018.3 The

PCRA court issued notice of its intent to dismiss his petition pursuant to Rule

of Criminal Procedure 907(1), and dismissed the petition as untimely on March

14, 2019. This timely appeal followed.

       Garwood asserts four issues on appeal. The first and fourth relate to the

Court of Common Pleas’ conclusion that the subject PCRA petition was

untimely; the remaining issues go to the merits of the petition. We address

only the first and fourth issues because we agree with the lower court that

Garwood’s petition was untimely. See Commonwealth v. Miller, 102 A.3d

988, 992 (Pa.Super. 2014).

       Crucial to the determination of any PCRA appeal is the timeliness
       of the underlying petition. Thus, we must first determine whether
       the instant PCRA petition was timely filed. The timeliness
       requirement for PCRA petitions is mandatory and jurisdictional in
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2Garwood’s first petition for relief was filed pursuant to the Post Conviction
Hearing Act (“PCHA”).

3 We conclude that the PCRA court properly treated Garwood’s “Petition for
Writ Habeas Corpus/PCRA/Rule 5505” as a subsequent PCRA petition. See 42
Pa.C.S.A. § 9542 (PCRA encompasses all other remedies including habeas
corpus).

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       nature, and the court may not ignore it in order to reach the merits
       of the petition. The question of whether a petition is timely raises
       a question of law. Where the petitioner raises questions of law,
       our standard of review is de novo and our scope of review plenary.

       A PCRA petition is timely if it is “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, 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.A. § 9545(b)(3). . . .

Commonwealth v. Brown, 141 A.3d 491, 499 (Pa.Super. 2016) (case

citations and some quotation marks omitted).

       Garwood’s judgment of sentence became final on November 15, 1987,

60 days4 after our Supreme Court denied allowance of appeal and Garwood

did not petition the United States Supreme Court for a writ of certiorari. See

42 Pa.C.S.A. § 9545(b)(3) (judgment of sentence becomes final “at the

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

review”). The instant petition, filed over 30 years later, is patently untimely.

Therefore the PCRA court lacked jurisdiction to review Garwood’s petition

unless he successfully pleaded and proved one of the statutory exceptions to

the PCRA’s time-bar.

       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


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4When Garwood’s judgment of sentence was entered, in 1987, an appellant
had 60 days within which to file a petition for certiorari in the United States
Supreme Court. See Former U.S. Supreme Court Rule 20.1.

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      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 PCRA petitioner must plead any claimed exception to the time-bar in

the petition, and may not raise an exception for the first time on appeal. See

Commonwealth v. Burton, 936 A.2d 521, 525 (Pa.Super. 2007). “[Our

Supreme] Court has repeatedly stated it is the appellant’s burden to allege

and prove that one of the timeliness exceptions applies.” Commonwealth v.

Hawkins, 953 A.2d 1248, 1253 (Pa. 2008) (citation omitted). Further,

      [A]lthough this Court is willing to construe liberally materials filed
      by a pro se litigant, pro se status generally confers no special
      benefit upon an appellant. Accordingly, a pro se litigant must
      comply with the procedural rules set forth in the Pennsylvania
      Rules of the Court. This Court may quash or dismiss an appeal if
      an appellant fails to conform with the requirements set forth in
      the Pennsylvania Rules of Appellate Procedure.

Commonwealth v. Lyons, 833 A.2d 245, 251–52 (Pa.Super. 2003)

(citations omitted).

      Even liberally construed, Garwood has failed to plead and prove that his

claims constitute a valid exception to the PCRA time-bar. In his petition,

Garwood does not assert any new information that would establish

applicability of any of the exceptions to the PCRA time-bar. Rather, he re-


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argues Brady5 claims that he had previously raised in earlier petitions, and

baldly asserts that he acted with due diligence at the time of raising those

claims. See Petition, 2/05/18, at 11-13; see also Commonwealth v.

Garwood, No. 2752 EDA 2016, at *4, 7-8 (Pa.Super. filed Apr. 19, 2017)

(unpublished memorandum). He further maintains that as an incarcerated

person, his means to investigate matters related to his claims are very limited.

See Garwood Br. at 5, 7-8.

        In order to obtain relief under the PCRA, a petitioner must prove that

the allegation of error has not been previously litigated. See 42 Pa.C.S.A. §

9543(a)(3) (requiring petitioners to prove that allegations of error have not

been previously litigated or waived, in order to be eligible for relief under

PCRA).

        Here, because Garwood previously litigated his Brady claim in his third

PCRA, he is unable to prove that the allegation of error underlying his claim

to a governmental interference exception has not been previously litigated. To

the extent he claims the new-facts exception, because he previously raised

his Brady claim in 2010, the “facts” giving rise to the claim are not “new.”

Therefore, we agree with the determination of the PCRA court that Garwood’s

petition was not timely filed, and he failed to plead and prove any of the time-

bar exceptions. Accordingly, we affirm the order denying relief.

        Order affirmed.

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5   Brady v. Maryland, 373 U.S. 83 (1963).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/1/20




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