J-S04002-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MARLON HURDLE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1130 MDA 2017

Appeal from the PCRA Order June 30, 2017

In the Court of Common Pleas of Lancaster County Criminal Division at 

No(s): CP-36-CR-0003270-1994

BEFORE: SHOGAN, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.: FILED MARCH 23, 2018

Appellant, Marlon Hurdle, appeals pro se from the June 30, 2017 order 

that denied his third petition filed pursuant to the Post Conviction Relief Act 

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

The PCRA court set forth the relevant facts and procedural history of 

this matter as follows:

On May 19, 1995, [Appellant] was tried by a jury, 

convicted of two counts of first degree murder, and subsequently 

sentenced to two life terms. Commonwealth v. Hurdle, 21 MDA 

2012, 2013 WL 11282815 (Pa. Super. 2013). According to 

testimony at trial, [Appellant] was a drug dealer. (N.T. Jury Trial 

Volume VI at 1300:11-24, 1304:4-5; N.T. Jury Trial Volume VII 

at 1471:2-15). On the day of the murders, after running out of 

drugs to sell, [Appellant] attempted to rob two would-be 

customers at gunpoint. (N.T. Jury Trial Volume VI at 1306:3-

1311:6). When the two victims, who were seated in a van, would 

not give [Appellant] any money, [Appellant] fired a warning shot 

into the air. Id. When the victims still refused, [Appellant] fired 

eight shots at the victims in the van, killing the passenger with a 

shot to the head from mere “inches or a foot” away. [Appellant] 
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also shot and killed the driver with multiple shots to the head 

from a distance of about four feet. Id.; (N.T. Jury Trial Volume 

IX at 1845:13-16, 1684:18-1692:14). 

[Appellant] directly appealed the conviction, which was 

subsequently affirmed by the Superior Court. Commonwealth v. 

Hurdle, 685 A.2d 209 (Pa. Super. 1996). Appeal to the 

Pennsylvania Supreme Court was denied in 1997. 

Commonwealth v. Hurdle, 694 A.2d 620 (Pa. 1997). On August 

19, 2011, [Appellant] filed his first, pro se, PCRA Petition. 

Amongst [Appellant’s] claims was an allegation of government 

interference because this Court denied him free access to trial 

transcripts. 21 MDA 2012. In response, I appointed counsel, 

Christopher P. Lyden, Esq., who subsequently filed a 

[Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en 

banc)] no-merit letter. Agreeing that [Appellant’s] claims were 

meritless, I granted counsel’s Motion, and dismissed 

[Appellant’s] Petition, from which Order he appealed. 

Commonwealth v. Hurdle, [68 A.3d 355,] 21 MDA 2012, 2013 

WL 11282815 (Pa. Super. 2013) (summarizing the procedural 

history [and finding no government interference concerning the 

trial transcripts because Appellant had no pending PCRA petition 

when he requested the transcripts)]. The Superior Court 

affirmed my decision, and petition for allowance of appeal was 

denied by the Pennsylvania Supreme Court on July 16, 2013. 

[Commonwealth v. Hurdle,] 69 A.3d 601 [(Pa. 2013).] 

[Appellant’s] second PCRA petition was filed with this Court 

on March 23, 2016, arguing he was entitled to relief under 

Montgomery v. Louisiana, 136 S. Ct. 718 (2016) and Miller v. 

Alabama, 132 S. Ct. 2455 (2012), which I denied as meritless 

since he was twenty years old when he committed the murders. 

The Superior Court issued an Opinion affirming my decision on 

April 10, 2017. [Commonwealth v. Hurdle, 169 A.3d 1150,] 959 

MDA 2016 [(Pa. Super. 2017)].

In the instant Petition, [Appellant] bases his request for 

relief, again, on the allegation that he was improperly denied 

access to trial transcripts for his August 19, 2011 PCRA petition. 

In support of this claim, [Appellant] pleads the PCRA’s “newly

discovered facts” exception, 42 Pa.C.S.A. § 9545(b)(1)(ii), citing 

Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017) as a newly 

discovered fact. [Appellant] argues that a “Burton hearing”
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should be held to “assess [Appellant’s] ability to access the

public record.” (Statement). 

PCRA Court Opinion, 9/11/17, at 1-3.

The PCRA court denied Appellant’s PCRA petition on June 30, 2017. 

This timely appeal followed. Both Appellant and the PCRA court have 

complied with Pa.R.A.P. 1925.

On appeal, Appellant raises the following issues:

1. Did the PCRA Court err in holding, without an[] evidentiary 

hearing, that [Appellant’s] petition was untimely where 

[Appellant] is a pro se prisoner petitioner with no access to 

the public record and our Supreme Court has held that it is a 

missapplication of 42 PA. C.S.A. sec. 9545(b)(1)(ii) to hold 

such petitioners to a due diligence requirement to access the 

public record?

2. Did the PCRA Court misapply 42 PA. C.S.A. 9545(b)(1)(ii) by 

dismissing [Appellant’s] petition without holding a hearing to 

a[ss]ess [Appellant’s] ability to access the public record?

Appellant’s Brief at 5.

Our standard of review of an order denying PCRA relief is whether the 

record supports the PCRA court’s determination and whether that court’s 

determination is free of legal error. Commonwealth v. Phillips, 31 A.3d 

317, 319 (Pa. Super. 2011). The PCRA court’s findings will not be disturbed 

unless there is no support for the findings in the certified record. Id. 

A PCRA petition must be filed within one year of the date that the 

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time 

requirement is mandatory and jurisdictional in nature, and the court may not 

ignore it in order to reach the merits of the petition. Commonwealth v. 
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Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). 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. § 9545(b)(3). 

However, an untimely petition may be received when the petition 

alleges, and the petitioner proves, that any of the three limited exceptions to 

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), 

and (iii), is met.1 A petition invoking one of these exceptions must be filed 

within sixty days of the date the claim first could have been presented. 42 

Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions to the 

PCRA’s one-year filing deadline, “the petitioner must plead and prove 

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1

 The exceptions to the timeliness requirement are:

(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), (ii), and (iii).
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specific facts that demonstrate his claim was raised within the sixty-day time 

frame” under section 9545(b)(2). Hernandez, 79 A.3d at 652.

This Court affirmed Appellant’s judgment of sentence on July 10, 

1996, and on June 11, 1997, our Supreme Court denied Appellant’s petition 

for allowance of appeal. Commonwealth v. Hurdle, 695 A.2d 209 (Pa. 

Super. 1996) (unpublished memorandum), appeal denied, 694 A.2d 620 

(Pa. 1997). Appellant’s judgment of sentence became final ninety days later 

on September 9, 1997, when the time for filing a petition for a writ of 

certiorari expired. U.S. Sup. Ct. 13; 42 Pa.C.S. § 9545(b)(3). Therefore, in 

order to be timely, Appellant’s PCRA petition had to be filed by September 9, 

1998. Appellant’s instant petition, filed on May 30, 2017, is thus, patently 

untimely.

Appellant asserts that our Supreme Court’s decision in

Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017), satisfies the afterdiscovered-facts exception2

to the PCRA’s timing requirements and affords 

him relief. Appellant’s Brief at 10. Specifically, Appellant avers as follows: 

Had Commonwealth v. Burton been decided at the time 

[Appellant’s] [f]irst PCRA was pending the Post-Conviction Court 

would have been required to hold a hearing to determine 

[Appellant’s] ability to exercise due diligence to protect his own 

interest as a pro se prisoner petitioner.

Id. at 11. Appellant’s argument is misplaced.

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2 42 Pa.C.S. § 9545(b)(1)(ii).
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In Burton, our Supreme Court held “the presumption that information 

which is of public record cannot be deemed ‘unknown’ for purposes of 

subsection 9545(b)(1)(ii) does not apply to pro se prisoner petitioners.” 

Burton, 158 A.3d at 638. However, Burton did not eliminate the 

requirement that an incarcerated pro se petitioner must exercise due 

diligence. Therefore, in order for Burton to apply, the petitioner must 

identify what new facts were discovered and plead and prove that those 

facts were unknown and could not have been discovered sooner with the 

exercise of due diligence. Commonwealth v. Shiloh, 170 A.3d 553, 559 

(Pa. Super. 2017). 

Appellant baldly asserts that “he needed the transcript” to perfect his 

PCRA petition. Appellant’s Brief at 15. However, the only “new fact” he 

raises is the decision in Burton. It is well settled that “subsequent 

decisional law does not amount to a new ‘fact’ under section 9545(b)(1)(ii) 

of the PCRA.” Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011). 

Other than citing Burton, Appellant fails to establish what “fact” he 

discovered. The PCRA court recognized this failing, and it denied Appellant’s 

third PCRA petition as untimely. See PCRA Court Opinion, 9/11/17, at 5

(“[T]he only ‘new fact’ [Appellant] claims to have discovered is our Supreme 

Court’s Burton decision.”). 

After review, we conclude that the PCRA court properly dismissed 

Appellant’s patently untimely third PCRA petition because no exception to 
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the time-for-filing requirements of the PCRA was satisfied. Accordingly, we 

affirm the PCRA court’s order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 03/23/2018