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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TYRONE MARTIN,
Appellant No. 1805 EDA 2013
Appeal from the PCRA Order May 21, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1100501-2001
BEFORE: BOWES, SHOGAN, and OTT, JJ.
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 10, 2014
Tyrone Martin appeals from the May 21, 2013 order denying his fifth
PCRA petition. The petition was untimely, and we affirm.
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 op
Acura Legend. Appellant exited the car and shot Mr. Moses. Mr. Jernigan
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did not report the incident to police until April, 2001, when he was arrested
for an unrelated crime.
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 rejecting nine issues, 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).
Appellant filed a timely PCRA petition on October 20, 2006, and averred that
trial counsel was ineffective for failing to present an alibi defense. Counsel
was appointed, but filed a no-merit letter and motion to withdraw. Counsel
counsel indicated that Appellant was unable to provide any means by which
counsel could contact the witness and that counsel had unsuccessfully
endeavored to find both the former girlfriend and other alibi witnesses for
Appellant. Counsel was permitted to withdraw, and, after sending notice of
its intent to dismiss the petition without a hearing, the PCRA court dismissed
was filed from the denial.
Thereafter, Appellant filed three other PCRA petitions. In none of
them did he either seek reinstatement of his appellate rights from the denial
of his first PCRA petition, or suggest that he was unaware that the petition
had been denied. A PCRA petition filed on October 20, 2008 was dismissed
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on April 15, 2009. In that petition, Appellant charged PCRA counsel with
abandonment and improperly presenting a no-merit letter. A January 7,
2010, PCRA petition was denied on August 17, 2010. Appellant then sought
a new trial based upon after-discovered evidence on November 8, 2010, and
that petition was dismissed on May 17, 2010. Appellant filed an appeal from
that dismissal. We concluded therein that the November 8, 2010 PCRA
by February 8, 2007. Commonwealth v. Martin, 53 A.3d 935 (Pa.Super.
2012) (unpublished memorandum at 2).
The present appeal is from the dismissal of a PCRA petition filed on
entitled to relief pursuant to 42 Pa.C.S. §9545(b)(1)(i), where governmental
brief at ii. Our Supreme Court has observed that limited appellate review
applies in the PCRA context. Commonwealth v. Spotz, 84 A.3d 294 (Pa.
2014). As delineated in Commonwealth v. Feliciano, 69 A.3d 1270,
1274-75 (Pa.Super. 2013) (citation omitted),
Our standard of review of the denial of a PCRA petition is
limited to examining whether the court's rulings are supported
by the evidence of record and free of legal error. This Court
treats the findings of the PCRA court with deference if the record
supports those findings. It is an appellant's burden to persuade
this Court that the PCRA court erred and that relief is due.
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judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). In this case,
became final on February 8, 2006, after he failed to seek review in the
of appeal. 42 Pa.C.S. § 9545(b)(3) (judgment of sentence becomes final at
the conclusion of direct review or the expiration of the time for seeking the
review). He had until February 8, 2007, to file a timely PCRA petition, and
his present petition was filed outside of that time frame.
There are three exceptions to the one-year time bar: when the
when the defendant has recently discovered the facts upon which his PCRA
claim is predicated, or when either our Supreme Court or the United States
Supreme Court has recognized a new constitutional right and made that
right retroactive. 42 Pa.C.S. § 9545(b)(1)(i-iii). Commonwealth v.
Brandon, 51 A.3d 231, 233-
exceptions to this [one-year] time requirement: (1) interference by
government officials in the presentation of the claim; (2) newly discovered
facts; and (3) an after-
the burden of pleading and proving the applicability of any exception.
Feliciano, supra; 42 Pa.C.S. § 9545(b)(1).
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exception . . . shall be filed within 60 days of the date the claim could have
Appellant herein invokes the governmental interference exception,
maintains that he never received a copy of the order denying him relief
during his first PCRA proceeding and that there was a breakdown in the
operation of the court. However, he is essentially asserting that this default
prevented him from presenting meritorious issues. The only harm flowing to
Appellant from this purported lack of notice was that he could not appeal
from the denial of his first petition.
Appellant cannot invoke the governmental interference exception
because he did not present this claim within sixty days of when he first
learned of his alleged lack of proper notice. When Appellant filed his second
petition, he was aware that he had been denied relief in his first PCRA
proceeding and should have raised the claim at that time. Indeed, Appellant
has been fully aware of the outcome of the first post-conviction proceeding
for years. Appellant has not timely invoked the governmental interference
exception since he did not file a petition seeking reinstatement of his
appellate rights with respect to his first PCRA petition within sixty days of
when he actually learned of its denial. Commonwealth v. Cintora, 69
A.3d 759 (Pa.Super. 2013).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/10/2014
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Com. v. Martin, T.
Combined Opinion