J-S75021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MARK LAWRENCE

                            Appellant                 No. 325 EDA 2016


                   Appeal from the PCRA Order January 15, 2016
               In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-1100511-1997


BEFORE: BOWES, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                      FILED NOVEMBER 23, 2016

       Mark Lawrence appeals from the January 15, 2016 order of the Court

of Common Pleas of Philadelphia County denying his petition for relief filed

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.

We affirm.

       On August 16, 2002, a jury convicted Lawrence of possession of a

controlled substance with intent to deliver (“PWID”)1 and carrying a firearm

without a license.2 On October 1, 2002, the trial court sentenced Lawrence

to a term of three to six years’ imprisonment on the PWID conviction and

one to two years’ imprisonment followed by three years’ probation on the

____________________________________________


       1
           35 Pa.C.S. § 780-113(a)(30).
       2
           18 Pa.C.S. § 6106.
J-S75021-16



conviction    for   carrying    a   firearm    without   a   license,   to   be   served

consecutively.3     On November 4, 2002, Lawrence filed a notice of appeal

with the Superior Court, which was dismissed for failure to file a brief. On

February 12, 2004, Lawrence filed a pro se PCRA petition seeking

reinstatement of his appellate rights nunc pro tunc. This Court reinstated his

appellate rights on August 18, 2004. On July 28, 2005, this Court affirmed

Lawrence’s judgment of sentence.               Lawrence timely appealed to the

Supreme Court of Pennsylvania, which denied his petition for allowance of

appeal on December 28, 2005.

       On February 7, 2006, Lawrence filed a PCRA petition and voluntarily

waived his right to counsel. The trial court granted him leave to file a pro se

amended petition, which he filed on April 10, 2007. The trial court dismissed

Lawrence’s petition and, on October 28, 2008, this Court affirmed.

Lawrence did not seek review in the Supreme Court of Pennsylvania.


____________________________________________


       3
         Lawrence has pled and proved that he is “currently serving a
sentence of imprisonment, probation or parole for the crime.” 42 Pa.C.S. §
9543(a)(1)(i).     In his amended PCRA petition, filed March 22, 2015,
Lawrence alleged that he was then “currently serving his aggregate sentence
of 4 to 8 years of incarceration followed by 3 years of probation at SCI –
Waymart.” Amended Pet. ¶ 9. Further, in his brief, filed June 3, 2016,
Lawrence states that he is currently serving that same sentence. Lawrence’s
Br. at 6. That Lawrence is currently serving a 4-to-8-year sentence followed
by 3 years of probation, though it was imposed in 2002, may be explained
by his service of a federal sentence in the interim. See Lawrence PCRA Pet.,
12/20/2013, at 1 (stating that “Petitioner [was then] currently incarcerated
at FCI Otisville federal prison.”).



                                           -2-
J-S75021-16



       On December 20, 2013, Lawrence filed his second pro se PCRA

petition, asserting that the trial court imposed an illegal sentence under

Alleyne v. United States, 133 S.Ct. 2151 (2013).            The PCRA court

appointed counsel, who filed an amended PCRA petition on March 22, 2015.

In the amended PCRA petition, Lawrence added another claim based upon

newly discovered facts – a July 29, 2014 federal indictment of one of the

officers involved in his arrest.4

       On January 15, 2016, the PCRA court dismissed the petition as

untimely.    On January 20, 2016, Lawrence filed a timely notice of appeal.

The PCRA court did not order Lawrence to file a Pennsylvania Rule of

Appellate Procedure 1925(b) statement. Lawrence raises the following issue

on appeal:

           Did the PCRA [c]ourt err when it dismissed [Lawrence]’s
           petition (and amended petition) for relief under the PCRA
           as untimely?

Lawrence’s Br. at 4.

       It is well settled that “the timeliness of a PCRA petition is a

jurisdictional requisite.”     Commonwealth v. Brown, 111 A.3d 171, 175

(Pa.Super. 2015).        A PCRA petition “including a second or subsequent

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

____________________________________________


       4
        The docket shows that counsel filed a supplement to the amended
PCRA petition on April 3, 2015, but it is not included in the original record.
Lawrence filed a pro se amended petition on August 3, 2015 supplementing
his Alleyne claim.



                                           -3-
J-S75021-16



final.” 42 Pa.C.S. § 9545(b)(1). A judgment is 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 [] review.” 42 Pa.C.S. § 9545(b)(3).

      Courts may consider a PCRA petition filed more than one year after a

judgment of sentence became final only if the petitioner alleges and proves

one of the following three statutory exceptions:

         (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)-(iii); see Brown, 111 A.3d at 175. In addition,

when invoking an exception to the PCRA time-bar, the petition must “be filed

within 60 days of the date the claim could have been presented.” 42 Pa.C.S.

§ 9545(b)(2).

      Lawrence’s judgment of sentence became final on March 28, 2006,

when the time to seek review in the Supreme Court of the United States




                                     -4-
J-S75021-16



expired.5 He had one year from that date, that is, until March 28, 2007, to

file a timely PCRA petition.            His current petition, therefore, filed on

December 30, 2013, and amended on March 22, 2015, is facially untimely.

       Lawrence’s petition remains untimely unless it alleges and proves a

PCRA time-bar exception. In an effort to meet that requirement, Lawrence

raises a claim pursuant to Alleyne and a claim of newly discovered facts,

i.e., the indictment of an officer involved in his arrest.

       As to Alleyne, although Lawrence raised this claim in his PCRA

petition, he waived it by not including it in the “Argument” section of his

brief. See Commonwealth v. LaCava, 666 A.2d 221, 228 n.9 (Pa. 1995).

Even if he had not waived his Alleyne claim, it fails. See Commonwealth

v. Washington, 142 A.3d 810, 820 (Pa. 2016) (holding that Alleyne does

not apply retroactively to collateral attacks on mandatory minimum

sentences).

       As to his claim that he discovered new facts – the 2014 indictment –

more than one year after his judgment of sentence became final, Lawrence

must show that: (1) “the facts upon which the claim was predicated were

unknown” and (2) the facts “could not have been ascertained by the


____________________________________________


       5
         Lawrence had 90 days from the date the Supreme Court of
Pennsylvania denied his petition for allowance of appeal to file a petition for
a writ of certiorari with the Supreme Court of the United States. See U.S. S.
Ct. R. 13.




                                           -5-
J-S75021-16



exercise of due diligence.” 42 Pa.C.S. § 9545(b)(1)(ii); Commonwealth v.

Bennet, 930 A.2d 1264, 1272 (Pa. 2007). This “new-facts” exception does

not require us to analyze the merits of the case or the underlying “after-

discovered evidence claim.”      Brown, 111 A.3d at 177.   “Once jurisdiction

has been established, a PCRA petitioner can present a substantive after-

discovered-evidence claim.” Id. at 176.

      Lawrence alleges that he first learned of the indictment through news

articles published while he was incarcerated in a federal correctional

institution outside Pennsylvania.     Amended PCRA Pet. ¶ 69.       Lawrence

further alleges that he could not have discovered these facts by the exercise

of due diligence.   Id. ¶ 70.      In his appellate brief, he notes that the

information   contained in the      indictment, as well as   the   underlying

investigation, was kept confidential until July 29, 2014, the date the

indictment was filed.   Lawrence’s Br. at 16.    Notably, neither Lawrence’s

petition nor his brief provides the date on which he discovered the news

articles about the indictment.

      Lawrence contends that he meets the 60-day requirement based on

the filing of his December 20, 2013 petition, which he subsequently

amended on March 22, 2015. Relying on Commonwealth v. Tedford, 781

A.2d 1167 (Pa. 2001), he argues as follows:         The counseled amended

petition, which added the “new facts” claim, should be treated as an

extension of the December 20, 2013 pro se petition, Lawrence’s Br. at 23-

24; and because “the pro se petition was filed less than 60 days after the

                                      -6-
J-S75021-16



public disclosure of new evidence contained in the indictment – in fact the

pro se petition was filed before the indictment was filed – it is timely,” id. at

24 (emphasis added). We disagree.

      Lawrence’s reliance on Tedford is misplaced.        There the petitioner,

unlike Lawrence, had timely filed his original pro se petition and our

Supreme Court held that the amended counseled petition, filed later, was

therefore timely as well.     Tedford, 781 A.2d at 1170-71.          Lawrence’s

December 20, 2013 pro se petition, in contrast, was untimely because it was

filed more than seven years after his judgment became final, and so cannot

be used to save a later untimely amended petition.

      Moreover, Lawrence’s pro se petition cannot serve to meet the “new

facts” exception to the one-year time bar, since it neither invoked that

exception nor alleged any new facts, and plainly did not (and could not)

reference the 2014 indictment.      The first time Lawrence raised the “new

facts” was in his March 22, 2015 amended petition, which was filed more

than seven months after the indictment had been made public.

      To fit within the “new facts” exception to the PCRA time bar, Lawrence

needed to file a petition (whether amended or otherwise) identifying those

new facts “within 60 days of the date the claim could have been

presented.” 42 Pa.C.S § 9545(b)(2) (emphasis added). Because Lawrence

has not alleged the date on which he learned of the indictment, it is difficult

to identify with precision the date from which the 60 days should run.

Nonetheless, because Lawrence concedes that the indictment was publicly

                                      -7-
J-S75021-16



announced in July 2014, and because he does not claim that the March 22,

2015 amended petition was filed within 60 days of his discovery of the

indictment, the amended petition is plainly untimely.6 As a result, we lack

jurisdiction to reach the merits of this claim.

        Even if we had jurisdiction to reach the merits, Lawrence’s claim fails.

Assuming the indictment constitutes a “new fact” under the PCRA time-bar

exception, his substantive after-discovered evidence claim lacks merit.      To

obtain relief a petitioner must establish that: “(1) the evidence has been

discovered after trial and it could not have been obtained at or prior to trial

through reasonable diligence; (2) the evidence is not cumulative; (3) it is

not being used solely to impeach credibility; and (4) it would likely compel a

different verdict.” Commonwealth v. Washington, 927 A.2d 586, 595-96

(Pa. 2007).

        Lawrence’s claim fails both because the indictment is not evidence and

because the allegations contained in the indictment are not relevant to his

case.       This Court recently rejected a similar claim in Commonwealth v.

Griffin, 137 A.3d 605 (Pa.Super. 2016). As this Court explained in Griffin,

the allegations contained in an indictment are mere accusations by a grand


____________________________________________


        6
        Using the date of the indictment as the start of the 60-day period,
Lawrence had until Monday, September 29, 2014 to file a timely PCRA
petition alleging the “new facts” exception. 1 Pa.C.S. § 1908 (when last day
of time period “fall[s] on Saturday or Sunday, . . . such day shall be omitted
from the computation”).



                                           -8-
J-S75021-16



jury, not evidence of guilt.   Id. at 609.   Further, the allegations in the

indictment relied on by Lawrence have no connection to the charges on

which he was convicted.        Lawrence’s case was not identified in the

indictment, and the acts alleged in the indictment did not occur until 2006,

nine years after Lawrence’s arrest.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/23/2016




                                      -9-
