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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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”)1and 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

- 2 -

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.”). 
J-S75021-16

- 3 -

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.
J-S75021-16

- 4 -

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 
J-S75021-16

- 5 -

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. 
J-S75021-16

- 6 -

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

has been established, a PCRA petitioner can present a substantive afterdiscovered-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 
J-S75021-16

- 7 -

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 
J-S75021-16

- 8 -

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”).
J-S75021-16

- 9 -

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