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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
GREGORY BURKE :
:
Appellant : No. 1806 EDA 2020
Appeal from the PCRA Order Entered August 31, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0325182-1986
BEFORE: LAZARUS, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: MAY 7, 2021
Gregory Burke (“Burke”) appeals, pro se, from the Order dismissing his
seventh Petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On August 13, 1980, Burke and two accomplices shot and killed the
owner of a grocery store located in Philadelphia, Pennsylvania. The homicide
remained unsolved until October 1985, when the police were informed that
Burke and his accomplices were the perpetrators of the incident. Burke
subsequently entered into a negotiated guilty plea to second-degree murder,
conspiracy, robbery, and possessing an instrument of crime.1 In 1987, the
trial court sentenced him to life in prison. Burke filed a pro se PCRA Petition,
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1 See 18 Pa.C.S.A. §§ 2502(b), 903, 3701, 907.
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after which his direct appeal rights were reinstated nunc pro tunc. Burke
subsequently appealed, nunc pro tunc, and on September 3, 1992, this Court
affirmed Burke’s judgment of sentence, but remanded to the trial court for
resentencing. See Commonwealth v. Burke, 619 A.2d 786 (Pa. Super.
1992) (unpublished memorandum). On August 3, 1993, the Pennsylvania
Supreme Court denied Burke’s Petition for allowance of appeal. See
Commonwealth v. Burke, 631 A.2d 1003 (Pa. 1993). Thereafter, the trial
court re-sentenced Burke to life in prison, and a concurrent term of five to ten
years in prison for his conviction of conspiracy.
Burke filed several unsuccessful PCRA Petitions over the next several
decades. On May 1, 2019, Burke filed the instant, pro se, PCRA Petition, his
seventh. Burke subsequently filed four Supplemental PCRA Petitions. On July
2, 2020, the PCRA court issued Notice of its intent to dismiss Burke’s seventh
Petition, pursuant to Pa.R.Crim.P. 907, as untimely filed. On July 14, 2020,
Burke filed a Response, and on August 31, 2020, the PCRA court dismissed
Burke’s Petition. Burke filed a timely Notice of Appeal, and on the same day,
the PCRA court issued its Opinion.2
We review an order dismissing a petition under the PCRA in
the light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
evidence of the record. We will not disturb a PCRA court’s ruling
if it is supported by evidence of record and is free of legal error.
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2 The PCRA court did not order a 1925(b) concise statement of errors
complained of on appeal, and Burke did not file one.
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Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
Under the PCRA, any PCRA petition “shall be filed within one year of the
date the judgment 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
review.” Id. § 9545(b)(3). The PCRA’s timeliness requirements are
jurisdictional in nature, and a court may not address the merits of the issues
raised if the PCRA petition was not timely filed. Commonwealth v. Albrecht,
994 A.2d 1091, 1093 (Pa. 2010).
Instantly, Burke’s judgment of sentence became final on November 1,
1993, when the time to file a petition for writ of certiorari with the United
States Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); SUP. CT. R.
13. Thus, Burke’s Petition is facially untimely.
However, Pennsylvania courts may consider an untimely petition if the
petitioner can explicitly plead and prove one of the three exceptions set forth
at 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any petition invoking one of these
exceptions “shall be filed within one year of the date the claim could have
been presented.” Id. § 9545(b)(2). “The PCRA petitioner bears the burden
of proving the applicability of one of the exceptions.” Commonwealth v.
Spotz, 171 A.3d 675, 678 (Pa. 2017).
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At the beginning of his appellate brief, Burke raises several claims
together, and purports to invoke the newly-discovered facts exception under
42 Pa.C.S.A. § 9545(b)(1)(ii). Brief for Appellant at 2 (unnumbered).
However, despite invoking the newly-discovered fact exception, Burke
provides no argument or analysis as to how that exception applies, or how he
established that exception before the PCRA court. See Spotz, supra.
Because Burke failed to plead and prove any of the exceptions to the PCRA
time bar, we lack jurisdiction to address the merits of these claims. See
Albrecht, supra.
Based upon the foregoing, the PCRA court did not err in dismissing
Burke’s serial Petition as untimely filed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/7/21
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