Com. v. McGurl, H., Jr. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HAROLD JOHN MCGURL, JR. :
:
Appellant : No. 149 MDA 2023
Appeal from the Orders Entered December 19, 2022 and January 5,
2023
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0002107-2016
BEFORE: BOWES, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: FILED JULY 27, 2023
Harold John McGurl, Jr. appeals pro se following the PCRA court’s denial
of his motion for deoxyribonucleic acid (“DNA”) testing pursuant to 42 Pa.C.S.
§ 9543.1 of the Post Conviction Relief Act (“PCRA”), and dismissal of his PCRA
petition. We affirm.
This Court previously summarized the facts underlying this case as
follows:
Appellant attacked the victim, Jordan Adams (the “Victim”), in the
early morning hours of October 8, 2016. The Victim is the brother
of Shawn Parker[.] Shawn Parker and Brittany Fenstermacher,
Appellant’s ex-girlfriend, were dating at the time of the incident.
On the day of the attack, Appellant met Fenstermacher in a public
park where they shared a six-pack of beer. They then went to a
bar called the Drunken Monkey. While at the bar, Parker called
and texted Fenstermacher numerous times. As the evening
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* Retired Senior Judge assigned to the Superior Court.
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progressed, Appellant became more and more belligerent and
obnoxious and announced that he planned to get into a fight with
Parker. Before leaving the Drunken Monkey, Krystal Semerod, a
bar patron, gave Appellant, at Appellant’s request, a knife.
After Appellant and Fenstermacher left the Drunken Monkey to
walk home, Appellant saw the Victim driving the car that Appellant
had observed Parker and Fenstermacher driving in earlier that
day. The Victim parked and exited the car not far from where
Appellant and Fenstermacher were standing. When the Victim
turned around, he saw Appellant holding a knife above his head.
Appellant asked the Victim if he was Parker’s brother; the Victim
answered in the affirmative; and Appellant informed the Victim
that Appellant was going to “end” the Victim.
Appellant proceeded to attack the Victim with the knife, slashing
at his head, neck, and face. The Victim fought back and Appellant
then stabbed him in multiple parts of his body, including his tricep,
bicep, and shoulder.
When the Victim arrived at the emergency room, he was in
hemorrhagic shock due to blood loss. The Victim received
intravenous therapy and blood transfusions and doctors
performed emergency surgery on him. The Victim survived, but
continue[d] to have limited mobility in his arm.
Commonwealth v. McGurl, 217 A.3d 418 (Pa.Super. 2019) (non-
precedential decision at 1-3).
Based upon the foregoing, the Commonwealth charged Appellant with
one count each of attempted murder and recklessly endangering another
person, and two counts each of aggravated and simple assault. Appellant
proceeded to a jury trial, where he testified that he had been acting in self-
defense. The Commonwealth’s evidence included, inter alia, a hat and a knife.
The Victim identified the hat as the one he was wearing during the attack.
See N.T. Jury Trial, 4/2-3/18, at 72-73. It had sustained damage to the bill,
which the Commonwealth argued was consistent with being sliced by a knife.
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See id. at 136, 138, 167 (describing damage through bill of the hat); id. at
310 (Commonwealth arguing that the hat was damaged by Appellant stabbing
at the Victim’s head). As for the knife, police had recovered it from a storm
drain at Appellant’s direction following the altercation. Id. at 176, 195-96.
At trial, Appellant identified it as the knife given to him by Ms. Semerod and
claimed that he accidentally dropped it down the storm drain. Id. at 214,
230.
At the conclusion of the trial, the jury found Appellant guilty of all
charges. The trial court sentenced him to an aggregate term of ten to twenty
years of incarceration and ordered him to pay restitution. Appellant did not
file post-sentence motions but did appeal to this Court, challenging the
sufficiency of the evidence to sustain his conviction for attempted murder. We
affirmed the judgment of sentence and our Supreme Court denied his petition
for allowance of appeal. See McGurl, supra, appeal denied, 218 A.3d 382(Pa. 2019).
Thereafter, Appellant pro se filed his first PCRA petition, alleging that
trial counsel was ineffective due to a conflict of interest. The PCRA court
appointed counsel, who filed a no-merit letter and petition to withdraw. The
court denied counsel’s petition and held an evidentiary hearing on Appellant’s
claim. After the hearing, counsel again filed a no-merit letter and request to
withdraw. Appellant, meanwhile, pro se sought the appointment of new
counsel. The PCRA court granted counsel’s motion to withdraw and denied
both Appellant’s petition and his request for new counsel. On appeal to this
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Court, we affirmed the PCRA court’s order. See Commonwealth v. McGurl,
277 A.3d 1168 (Pa.Super. 2022) (non-precedential decision).
On June 21, 2022, Appellant pro se filed a second PCRA petition,
requesting that all evidence be submitted for DNA testing. Specifically,
Appellant sought to have the hat tested because he alleged for the first time
that it actually belonged to him, and further sought to have the knife tested
for fingerprints and DNA.1 After issuing Pa.R.Crim.P. 907 notice, the PCRA
court dismissed Appellant’s petition. Appellant did not appeal to this Court.
Instead, on October 24, 2022, Appellant pro se submitted another filing
(“October Motion”), styled as a post-sentence motion for a new trial based
upon after-discovered evidence. This filing renewed Appellant’s request for
DNA testing of all evidence. Construing the October Motion as a PCRA request
for DNA testing pursuant to § 9543.1, the PCRA court provided the
Commonwealth the opportunity to respond and directed that the evidence be
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1 Throughout the subsequent PCRA pleadings, Appellant has averred that a
second knife was recovered by Trooper Christopher Michael Rooney and that
Appellant did not know about the second knife until Trooper Rooney testified
at trial. See, e.g., Appellant’s brief at unnumbered 2. As such, Appellant’s
request for DNA testing encompasses both knives. However, Appellant’s bald
averment of the existence of a second knife is belied by the record. Trooper
Rooney’s testimony detailed his involvement in Appellant’s apprehension and
recovery of the knife from the storm drain. See N.T. Jury Trial, 4/2-3/18, at
174-181. At no point did he mention a second knife and, while it is not our
burden to scour every corner of the record to support Appellant’s
unsubstantiated claim on his behalf, our thorough review of the certified
record has revealed no indication of a second knife. Accordingly, our review
concerns only the knife that Appellant acknowledged possessing during the
fight and thereafter discarding in a storm drain.
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preserved. See Order, 10/31/22. The Commonwealth did not file a response.
Ultimately, the PCRA court denied the motion because the request was not
timely made and because it found there was “no reasonable possibility that
testing would produce exculpatory evidence that would establish [Appellant’s]
actual innocence[.]” Order (October Motion), 12/19/22.
In the meantime, Appellant pro se filed a document styled as a motion
for extraordinary relief (“November Petition”). See Rule 704(a) Motion for
Extraordinary Relief, 11/14/22, at unnumbered 1. The relief sought was
unclear, but Appellant once again argued that the hat and knife should have
been subjected to DNA testing and that such testing would prove his
innocence. Without explicitly challenging the effective assistance of any of his
attorneys, Appellant claimed that his pre-trial and post-trial requests for the
items to be tested had been ignored. See id. (stating that he “request[ed]
before trial [and] after trial various times that DNA testing needed to be done”
and “Attorney Stine [told] defendant that no fingerprints or blood were ever
found on the knife”).
The PCRA court construed the November Petition as an untimely PCRA
petition filed more than one year after Appellant’s judgment of sentence
became final and, accordingly, issued notice of its intent to dismiss on that
basis. See Order (November Petition), 12/19/22. Appellant filed a response
assailing the lack of DNA testing, for the first time explicitly claiming that trial
counsel was ineffective for failing to request DNA testing, and seeking an
extension of time to amend his request because his mail delivery had been
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delayed due to his inmate housing status. On January 5, 2023, the PCRA
court dismissed the November Petition as an untimely PCRA petition.
This appeal followed. In his notice of appeal, Appellant referenced “an
appeal for extraordinary relief for post-trial DNA testing[.]” Notice of Appeal,
1/27/23 (cleaned up). He then attached the orders pertaining to both the
October Motion and the November Petition. The PCRA court ordered Appellant
to file a Rule 1925(b) statement. After Appellant failed to timely file a concise
statement, the PCRA court entered an order in lieu of opinion, directing us to
its December 19, 2022 order disposing of the October Motion. Thereafter,
Appellant’s concise statement was docketed.2
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2 Appellant’s concise statement was due on or before February 24, 2023. As
the statement was docketed on March 31, 2023, it was patently untimely.
This Court has considered untimely concise statements when the trial court
nonetheless addressed the issues because the untimely filing of a concise
statement constitutes per se ineffective assistance of counsel. See
Commonwealth v. Boniella, 158 A.3d 162, 164 (Pa.Super. 2017) (noting
that “where the trial court addresses the issues raised in an untimely Rule
1925(b) statement, we need not remand but may address the issues on their
merits” (cleaned up)). However, this Court’s rationale for doing so
“disappears where it is filed by a pro se litigant” because “a pro se litigant
cannot be ineffective on his or her own behalf.” Id. (cleaned up).
This would normally result in waiver of all of Appellant’s claims. See id.However, Appellant’s concise statement was self-dated February 8, 2023.
Moreover, Appellant appended a note after the affidavit and proof of service
page, which was self-dated March 25, 2023, indicating that Appellant had
delivered his concise statement to prison authorities on February 9, 2023, and
only learned of its non-delivery upon his release from the restrictive housing
unit on March 25, 2023, and thereafter mailed it again. See Concise
Statement, 3/31/23, at unnumbered 4.
(Footnote Continued Next Page)
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This Court issued a rule to show cause order as to why the appeal, which
did not contain the date of the order appealed from, should not be quashed
as having been taken from an order not entered on the docket, in violation of
Pa.R.A.P. 301(a)(1). Appellant responded, indicating that he lacked the date
of the order due to his housing status. This Court discharged the rule and
referred the issue to this panel. Meanwhile, Appellant filed his brief in this
Court.
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“[T]he prisoner mailbox rule provides that a pro se prisoner’s document is
deemed filed on the date he delivers it to prison authorities for mailing.”
Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa.Super. 2011) (citation
omitted). See also Pa.R.A.P. 121(f) (“A pro se filing submitted by a person
incarcerated in a correctional facility is deemed filed as of the date of the
prison postmark or the date the filing was delivered to the prison authorities
for purposes of mailing as documented by a properly executed prisoner cash
slip or other reasonably verifiable evidence.”).
Our Supreme Court has provided a non-exhaustive list of the
types of evidence a pro se prisoner may present to prove that he
mailed a notice of appeal within the deadline. Our Supreme Court
has also clearly stated that we are inclined to accept any
reasonably verifiable evidence of the date that the prisoner
deposits the appeal with the prison authorities. In this vein, we
may regard a self-dated notice of appeal as plausible evidence of
mailing . . ., particularly where the opposing party does not
contest such a date.
Commonwealth v. Powell, 290 A.3d 751, 756 n.9 (Pa.Super. 2023)
(cleaned up).
Here, Appellant self-dated the concise statement February 8, 2023, and the
Commonwealth has offered no objection to this averment. See
Commonwealth’s brief at 6 (stating, incorrectly, that the PCRA court did not
order Appellant to file a Rule 1925(b) statement and that none was filed).
Accordingly, we regard the hand-written date and appended note as plausible
evidence of mailing and will consider the concise statement timely under the
prisoner mailbox rule.
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Preliminarily, this Court is unable to ascertain from which order
Appellant is actually appealing. Not one of Appellant’s appellate filings
provides illumination on this query. His brief is handwritten and unnumbered,
contains various exhibits throughout, and is not separated into different
sections. From what we can glean from his brief, Appellant is seeking to
challenge the PCRA court’s denial of his request for DNA testing, as well as
trial counsel’s effectiveness in failing to pursue DNA testing before or after
trial.3 Based upon the first argument, the Commonwealth and PCRA court
deduced that Appellant purported to appeal solely from the December 19,
2022 order denying his October Motion. See Commonwealth’s brief at 5 n.6;
Order in Lieu of Opinion, 3/21/23, at unnumbered 1 n.1.
We agree that the lion’s share of Appellant’s arguments on appeal
concern the PCRA court’s decision to deny his request for DNA testing, thereby
implicating the court’s denial of his October Motion. However, Appellant also
asserts that counsel was ineffective for failing to request DNA testing, which
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3 Appellant also argues that the Commonwealth failed to adduce sufficient
evidence of Appellant’s specific intent to kill to sustain his attempted murder
conviction. See Appellant’s brief at unnumbered 8-10. As acknowledged by
Appellant’s citation to his brief on direct appeal, this Court already heard and
rejected that precise argument. Commonwealth v. McGurl, 217 A.3d 418(Pa.Super. 2019) (non-precedential decision at 4-6) (“As demonstrated by his
actions, which occurred after he announced that he intended ‘to end’ the
Victim, Appellant took substantial steps toward the commission of [first-
degree murder], which resulted in the Victim’s near-fatal blood loss and
permanent injury.”). Thus, it cannot served as a basis for PCRA relief. See
42 Pa.C.S. § 9543(a)(3) (providing that, to be eligible for relief, a PCRA
petitioner must establish that the claim was not previously litigated or
waived).
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he raised in the November Petition proceedings. In this way, his brief also
implicates the PCRA court’s denial of the November Petition. Stated plainly,
due to Appellant’s reiterative post-conviction filings, vague notice of appeal,
and confusing brief, we simply cannot determine with any certainty which
order Appellant is appealing. What we can determine, however, is that
regardless from which order Appellant purported to appeal, he is not entitled
to relief.4
As with any denial of PCRA relief, “our standard of review calls for us to
determine whether the ruling of the PCRA court is supported by the record
and free of legal error.” Commonwealth v. Gacobano, 65 A.3d 416, 419
(Pa.Super. 2013) (cleaned up). “When reviewing an order denying a motion
for post-conviction DNA testing, this Court determines whether the movant
satisfied the statutory requirements listed in [§] 9543.1. We can affirm the
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4 With respect to the timeliness of Appellant’s appeal, his notice was clearly
filed within thirty days of the order denying his November Petition and was
therefore timely. However, the notice was filed more than thirty days after
the order denying his October Motion. Even applying Appellant’s self-date
pursuant to the prisoner mailbox rule, the notice of appeal would still be
deemed late as it was dated thirty-one days after the filing of the order
denying the October Motion. Nonetheless, because the PCRA court’s failure
to advise Appellant of his appellate rights constituted a breakdown in the court
system, we decline to quash. See, e.g. Commonwealth v. Stansbury, 219
A.3d 157, 160 (Pa.Super. 2019) (collecting cases); see also Pa.R.Crim.P.
900(A) (“The rules in Chapter 9 apply to . . . cases under the Post Conviction
Relief Act, 42 Pa.C.S. §§ 9541-9546[.]”); Pa.R.Crim.P. 907(4) (“When the
petition is dismissed without a hearing, the judge promptly shall issue an order
to that effect and shall advise the defendant by certified mail, return receipt
requested, of the right to appeal from the final order disposing of the petition
and of the time limits within which the appeal must be filed. The order shall
be filed and served as provided in Rule 114.”).
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court’s decision if there is any basis to support it, even if we rely on different
grounds to affirm.” Commonwealth v. Walsh, 125 A.3d 1248, 1253
(Pa.Super. 2015) (cleaned up).
Beginning with the PCRA court’s denial of the October Motion, we further
set forth the following legal principles. Post-conviction requests for DNA
testing are governed by § 9543.1, which provides in pertinent part as follows:
(a) Motion.--
(1) An individual convicted of a criminal offense in a court
of this Commonwealth may apply by making a written
motion to the sentencing court at any time for the
performance of forensic DNA testing on specific evidence
that is related to the investigation or prosecution that
resulted in the judgment of conviction.
(2) The evidence may have been discovered either prior to
or after the applicant’s conviction. The evidence shall be
available for testing as of the date of the motion. If the
evidence was discovered prior to the applicant’s conviction,
the evidence shall not have been subject to the DNA testing
requested because the technology for testing was not in
existence at the time of the trial or the applicant’s counsel
did not seek testing at the time of the trial in a case where
a verdict was rendered on or before January 1, 1995, or the
evidence was subject to the testing, but newer technology
could provide substantially more accurate and substantially
probative results, or the applicant’s counsel sought funds
from the court to pay for the testing because his client was
indigent and the court refused the request despite the
client’s indigency.
(3) A request for DNA testing under this section shall be by
written petition and shall be filed with the clerk of courts of
the judicial district where the sentence is imposed.
(4) DNA testing may be sought at any time if the motion is
made in a timely manner and for the purpose of
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demonstrating the applicant’s actual innocence and not to
delay the execution of sentence or administration of justice.
(5) Notwithstanding any other provision of law, a plea of
guilty to a crime of violence, as defined in section 9714(g)
(relating to sentences for second and subsequent offenses),
or a confession given by an applicant concerning the offense
for which the applicant was convicted, shall not prohibit the
applicant from asserting actual innocence under subsection
(c)(2) or the court from making a determination and
ordering DNA testing under subsection (d)(2).
(6) The motion shall explain how, after review of the record
of the applicant’s trial, there is a reasonable possibility if the
applicant is under State supervision, or there is a reasonable
probability if the applicant is not under State supervision, or
after review of the record of the applicant’s guilty plea there
is a reasonable probability, that the testing would produce
exculpatory evidence that would establish:
(i) the applicant’s actual innocence of the offense for
which the applicant was convicted;
....
(b) Notice to the Commonwealth.--
(1) Upon receipt of a motion under subsection (a), the court
shall notify the Commonwealth and shall afford the
Commonwealth an opportunity to respond to the motion.
(2) Upon receipt of a motion under subsection (a) or notice
of the motion, as applicable, the Commonwealth and the
court shall take the steps reasonably necessary to ensure
that any remaining biological material in the possession of
the Commonwealth or the court is preserved pending the
completion of the proceedings under this section.
(c) Requirements.--In any motion under subsection (a), under
penalty of perjury, the applicant shall:
(1)(i) specify the evidence to be tested;
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(ii) state that the applicant consents to provide
samples of bodily fluid for use in the DNA testing; and
(iii) acknowledge that the applicant understands that,
if the motion is granted, any data obtained from any
DNA samples or test results may be entered into law
enforcement databases, may be used in the
investigation of other crimes and may be used as
evidence against the applicant in other cases.
(2)(i) in a sworn statement subject to the penalties under
18 Pa.C.S. §§ 4902 (relating to perjury) and 4903 (relating
to false swearing), assert the applicant’s actual innocence
of the offense for which the applicant was convicted and that
the applicant seeks DNA testing for the purpose of
demonstrating the applicant’s actual innocence; . . . .
(3) present a prima facie case demonstrating that the:
(i) identity of or the participation in the crime by the
perpetrator was at issue in the proceedings that
resulted in the applicant’s conviction and sentencing;
and
(ii) DNA testing of the specific evidence, assuming
exculpatory results, would establish:
(A) the applicant’s actual innocence of the
offense for which the applicant was convicted;
....
(d) Order.--
(1) Except as provided in paragraph (2), the court shall
order the testing requested in a motion under subsection (a)
under reasonable conditions designed to preserve the
integrity of the evidence and the testing process upon a
determination, after review of the record of the applicant’s
trial, that the:
(i) requirements of subsection (c) have been met;
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(ii) evidence to be tested has been subject to a chain
of custody sufficient to establish that it has not been
altered in any material respect; and
(iii) motion is made in a timely manner and for the
purpose of demonstrating the applicant’s actual
innocence and not to delay the execution of sentence
or administration of justice.
(2) The court shall not order the testing requested in a
motion under subsection (a) if, after review of the record of
the applicant’s trial, the court determines that there is no
reasonable possibility for an applicant under State
supervision, or there is no reasonable probability for an
applicant not under State supervision, or after review of the
record of the applicant’s guilty plea, the court determines
that there is no reasonable probability, that the testing
would produce exculpatory evidence that:
(i) would establish the applicant’s actual innocence of
the offense for which the applicant was convicted;
....
(3) Any DNA testing order under this section shall constitute
a final order. An applicant or the Commonwealth may
appeal a decision denying or granting a DNA testing order
in accordance with the Pennsylvania Rules of Appellate
Procedure.
(4) Any decision granting or denying a DNA testing order
shall include an explanation by the court of how the testing
requested in a motion under subsection (a) has met or fails
to have met the requirements under paragraphs (1), (2) and
(3).
....
42 Pa.C.S. § 9543.1.
The PCRA court explained its reasons for denying the October Motion as
follows:
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The hat and knife were not subject to DNA testing.
[Appellant’s] counsel did not seek testing prior to or at the time
of trial and never sought funds from the [c]ourt to pay for testing.
The current request for DNA testing is not timely, and the motion
does not explain how, after review of the record of the trial, there
is a reasonable possibility that testing would produce exculpatory
evidence that would establish [Appellant’s] actual innocence.
Notably, contrary to his current allegations, [Appellant]
acknowledged at trial that he had possessed the knife. [Appellant]
claimed that he had used it against the Victim while acting in self-
defense. Similarly, at trial the Victim identified that hat as having
been worn by him. The issues at trial did not involve questions
about who possessed the hat and knife, or the identity of the
assailant; rather, they were whether the [Appellant] attacked the
Victim and had acted without justification in doing so.
Additionally, [Appellant] has not stated in his motion that
he consents to provide samples of bodily fluids for use in DNA
testing, acknowledges that he understands that any data obtained
from the DNA samples or test results may be entered into law
enforcement databases, may be used in the investigation of other
crimes, and may be used as evidence against him in other cases.
Finally, no prima facie case has been alleged that the
identity of or participation in the crime by [Appellant] was at issue
at trial and that DNA testing of the hat and knife, assuming
exculpatory results, would establish [Appellant’s] actual
innocence.
Order (October Motion), 12/19/2022, at 2 (cleaned up).
Upon review of the certified record, we agree with the PCRA court that
Appellant’s October Motion did not satisfy § 9543.1’s requirements. First, the
petition lacked Appellant’s consent to provide samples for testing or an
acknowledgement regarding the use of any results. Second, we discern no
abuse of discretion in the PCRA court’s finding that any exculpatory DNA
evidence pertaining to the hat and knife would not establish Appellant’s actual
innocence because neither possession of those items nor Appellant’s identity
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was in dispute at trial. Finally, Appellant’s request for DNA testing was not
timely where the hat and knife were discovered and available prior to trial,
DNA testing technology existed at the time of Appellant’s trial, the jury
reached its verdict after January 1, 1995, and the trial court did not refuse a
request for funds for DNA testing. See 42 Pa.C.S. § 9543.1(a)(2). Detecting
no error in the PCRA court’s conclusions, we affirm the order denying
Appellant’s October Motion for DNA testing. See Commonwealth v. Walsh,
125 A.3d 1248, 1258 (Pa.Super. 2015) (concluding that defendant “failed to
satisfy the threshold requirements to obtain DNA testing pursuant to
[§] 9543.1(a)(2); he did not present a prima facie case of actual innocence
pursuant to [§] 9543.1(c)(3); and he failed to make his request for DNA
testing in a timely manner pursuant to [§] 9543.1(d)(1)(iii)”).
Next, we address the PCRA court’s dismissal of Appellant’s November
Petition and his claim that trial counsel was ineffective for failing to request
DNA testing. Instead of considering the merits of any arguments raised in the
November Petition or the response to the PCRA court’s notice of intent to
dismiss, the PCRA court dismissed the November Petition as untimely. See
Order, 1/5/23.
It is axiomatic that neither this Court nor the PCRA court has jurisdiction
to consider an untimely PCRA petition. See Commonwealth v. Ballance,
203 A.3d 1027, 1030-31 (Pa.Super. 2019). All PCRA petitions, including
second or subsequent petitions, must be filed within one year of the date that
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the underlying judgment of sentence becomes final. See 42 Pa.C.S.
§ 9545(b)(1). The PCRA statute provides that “a judgment becomes final at
the conclusion of direct review, . . . or at the expiration of time for seeking
the review.” 42 Pa.C.S. § 9545(b)(3).
Instantly, Appellant’s judgment of sentence became final in 2019. The
November Petition, filed in 2022, was patently untimely. Therefore, Appellant
had the burden to plead and prove one of the enumerated exceptions to the
PCRA’s time-bar before the PCRA court could consider the merits of any of his
claims. In this respect, the PCRA statute provides as follows:
Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
(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). A petitioner invoking one of these exceptions must
file a petition “within one year of the date the claim could have been
presented.” 42 Pa.C.S. § 9545(b)(2).
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In the case sub judice, Appellant failed to invoke any of the timeliness
exceptions in his November Petition. Moreover, the PCRA court found as
follows in its notice of intent to dismiss:
[N]o facts are alleged by [Appellant] to support a finding that an
exception may exist to the requirement that a post-conviction
collateral relief motion be filed within one year of the date the
judgment of sentence becomes final.
....
[Appellant] fails to identify any facts upon which his current
claims are predicated which were unknown to him or could not
have been ascertained by the exercise of due diligence within the
requisite period to seek post-conviction collateral relief.
Moreover, the DNA testing and alleged failure to identify the
possessor of the knife and hat have been issues previously raised
and addressed.
Order (November Petition), 12/19/22, at 1-2.
Since Appellant failed to plead and prove an exception to the PCRA’s
time-bar, the PCRA court did not err in dismissing this petition as untimely.
See Walsh, supra at 1252 (declining to review claim that trial counsel was
ineffective for failing to request DNA testing as part of post-conviction motion
for DNA testing and noting that petitioners must raise such claims in a PCRA
petition that is either timely filed or satisfies one of the timeliness exceptions).
In sum, the PCRA court did not err in denying the October Motion or
dismissing the November Petition, and Appellant is not entitled to relief in this
collateral appeal.
Orders affirmed.
Judge Pellegrini joins this Memorandum.
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Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/27/2023
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