J-S16013-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JORGE MARTINEZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1579 EDA 2022

Appeal from the PCRA Order Entered May 5, 2022

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

No(s): CP-51-CR-0006386-2009

BEFORE: DUBOW, J., MURRAY, J., and McCAFFERY, J.

MEMORANDUM BY DUBOW, J.: FILED MAY 23, 2023

Appellant, Jorge Martinez, appeals pro se from the May 5, 2022 Order 

dismissing as untimely his fifth petition filed pursuant to the Post Conviction 

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. After careful review, we affirm.

The facts and procedural history pertinent to this appeal, as gleaned 

from the voluminous record and the PCRA court’s September 13, 2022 

opinion, are as follows. The Commonwealth charged Appellant with firstdegree murder and possession of an instrument of crime in connection with 

the March 2, 2008 shooting of Nicholas Cruz in North Philadelphia. 

Prior to trial, Appellant’s counsel indicated that Appellant wished to 

present at trial the testimony of Liz Conception, a witness to Mr. Cruz’s 

murder, to establish that she initially told police that the shooter was thin.

1

 

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1 Appellant was not thin.
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However, Ms. Conception had moved to Texas and was, therefore, unavailable 

to testify. The Commonwealth sought to preclude introduction of Ms. 

Conception’s statement as hearsay, but also argued that if the court admitted 

the statement, the Commonwealth should admit two subsequent oral hearsay 

statements made by Ms. Conception to Philadelphia Police Officers Raphael 

Cordero and William Hunter. In one statement, Ms. Conception identified 

Appellant as the shooter but indicated that she was “afraid to say it on paper.”2 

In the other statement made to, and memorialized in writing by, Detective 

Dennis Dusak, Ms. Conception denied that she had ever identified Appellant 

as the shooter to Officer Cordero. After the parties were unable to agree on 

a stipulation as to the three statements, the trial court concluded that Ms. 

Conception’s statements constituted inadmissible hearsay.

At trial, Appellant testified that, on the morning of Mr. Cruz’s murder, 

he woke up at the home of his then-girlfriend and took a taxi to North 

Philadelphia to pick up heroin from a supplier. He stated that after he got the 

heroin, he was walking in the area of the murder when he heard a gunshot, 

turned a corner, and saw Mr. Cruz’s body lying on the ground. He testified

that he quickly ran into the multi-room home that he shared with, among 

other people, his associate, Jonathan Rivera. He stated he went into Mr. 

Rivera’s room and told him to meet him at McDonalds. Appellant further 

stated that he later decided against meeting Mr. Rivera. During his trial 

____________________________________________

2 PCRA Ct. Op., 9/13/22, at 6. 
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testimony, Appellant repeatedly used singular, and not plural, pronouns to 

describe his actions, indicating that Appellant was alone after leaving his 

girlfriend’s house that morning.

The Commonwealth presented the testimony of various witnesses, 

including Mr. Rivera, who testified, inter alia, that when Appellant came to his 

room on the morning of the shooting, Appellant told him that they had to leave 

because he had just shot someone outside. Glorimar Marquez also testified 

that she first saw Appellant and his co-defendant, Edilberto Labrada, arguing 

with Mr. Cruz that morning and then she saw Appellant shoot Mr. Cruz. 

Another eyewitness, Maria Gonzalez,3testified that she heard Appellant tell 

Mr. Rivera that he had shot Mr. Cruz, that she had seen Appellant with a gun 

which she knew Appellant kept in a book bag in the front room of the house 

where they all lived, and that, after the shooting, the book bag was gone.

On February 25, 2010, a jury convicted Appellant of the charged crimes. 

That same day, the trial court sentenced Appellant to life imprisonment 

without the possibility of parole. This Court affirmed Appellant’s judgment of 

sentence and, on June 26, 2012, the Pennsylvania Supreme Court denied 

Appellant’s petition for allowance of appeal. See Commonwealth v. 

Martinez, 43 A.3d 529 (Pa. Super. 2012), appeal denied, 47 A.3d 846 (Pa. 

2012). Appellant did not seek further review of his judgment of sentence.

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3 Ms. Gonzalez also lived in the multi-room home shared by Appellant and Mr. 

Rivera.
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Appellant filed PCRA petitions in 2012, 2016, 2018 and 2019, none of 

which garnered him relief. In his 2019 petition, Appellant averred, inter alia, 

that: (1) he had recently discovered that Police Officer Raphael Cordero, one 

of the officers who investigated Mr. Cruz’s murder, had been accused of 

misconduct; and (2) the trial court erred in excluding Ms. Conception’s 

statement claiming that the shooter was thin (unlike Appellant) after the 

Commonwealth had successfully argued that she had later recanted that 

particular identification statement. On June 19, 2019, the PCRA court 

dismissed this petition as untimely. 

On March 4, 2021, Appellant filed the instant pro se petition, his fifth. 

Appellant acknowledged that his petition was untimely but invoked the 

governmental interference and newly discovered facts exceptions to the 

PCRA’s jurisdictional time-bar. See 42 Pa.C.S. § 9545(b)(1)(i), (ii).

In the petition, Appellant asserted that he is entitled to a new trial based 

on an affidavit he received on February 4, 2021, from Brian O’Leary, an 

investigator for the Federal Community Defender Office, who had interviewed 

eyewitness Liz Conception. According to Appellant, Mr. O’Leary’s affidavit

reported that he had spoken with Ms. Conception who told him that she had 

never identified Appellant as the shooter. PCRA Petition, 3/4/21, at 4. 

Appellant attached a copy of Mr. O’Leary’s affidavit to his petition as an 

exhibit. Mr. O’Leary’s affidavit refers to an “attached, unsigned, one page 

affidavit” containing Ms. Conception’s statement to Mr. O’Leary, but Appellant 
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did not submit to the PCRA court an affidavit from Ms. Conception. See 

O’Leary Affidavit, 1/26/21, at 1. 

Appellant subsequently supplemented his PCRA petition three times. 

His first supplement, filed on August 3, 2021, contained an affidavit from his 

former girlfriend dated June 1, 2021, in which she asserts that she was with 

Appellant at the time of the shooting, that he was unarmed, and that he did 

not murder Mr. Cruz. In the affidavit, his former girlfriend explains that she

refused to make herself available to testify at Appellant’s trial because she 

was involved with DHS, focused on efforts to reunify with her children, and 

feared retaliation from the authorities if she testified at Appellant’s trial. 

Appellant claimed that he had become aware of his former girlfriend’s alibi 

statement in February 2021, through Mr. O’Leary’s investigation.

In his second supplement, filed on August 16, 2021, Appellant submitted

a second affidavit from Mr. O’Leary explaining that Mr. O’Leary had discovered 

that Ms. Conception had returned to Philadelphia, noting that “Liz Conception” 

is an alias, and reporting that Ms. Conception refused to give him her real 

name. Appellant also included an unsigned, undated, handwritten, barely 

legible photocopy of a document that he asserted was “prepared in the 

presence of Ms. Conception[.]” Second Supplemental PCRA Petition, 8/16/21, 

at 2. Appellant claimed that this document, which he characterized as an 

“affidavit,” memorialized Ms. Conception’s “assertions during an interview 

conducted by [Attorney Claudia Flores of the Federal Community Defender 

Office and Mr. O’Leary]” that (1) Ms. Conception had spoken with police 
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officers twice about Mr. Cruz’s murder; (2) she did not identify the shooter on 

either occasion; and (3) she did not see the shooter’s face. Id. at 2, 4. 

Notably, Ms. Conception’s name does not appear anywhere on the unsigned, 

undated document and the document does not identify who drafted it.4 Id.

at 4.

In his third supplement, filed on October 8, 2021, Appellant asserted 

that the Commonwealth engaged in misconduct at trial by presenting 

information that was tainted by the misconduct of former Police Officer 

Cordero. He also asserted that Police Officer George Fetters’s failure to 

interview Liz Conception during his investigation constituted governmental 

interference. He explained that had Officer Fetters interviewed Ms. 

Conception, the Commonwealth would not have opposed Appellant’s request 

to admit Ms. Conception’s exculpatory statement describing the shooter as 

thin. Appellant also claimed that Officers Fetters, Hunter, and Cordero 

engaged in misconduct by fabricating a violation of a protection from abuse 

order as a pretext for arresting Appellant. 

On October 14, 2021, the Commonwealth filed a brief in opposition to 

Appellant’s PCRA petition, to which Appellant filed a response on October 25, 

2021.

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4 The handwritten document contains two blank spaces near the top which

appear to be where an affiant’s name would appear. It also contains what 

appears to be a signature line at the bottom left of the document, which is 

also blank.
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On February 1, 2022, the PCRA court filed a notice of intent to dismiss

Appellant’s petition as untimely pursuant to Pa.R.Crim.P. 907. Appellant did 

not file a response to the court’s Rule 907 notice.

On March 4, 2022, the PCRA court dismissed Appellant’s petition as 

untimely. On March 11, 2022, Appellant filed a response to the court’s Rule 

907 notice and a motion for reconsideration of the order dismissing his 

petition. On March 21, 2022, the PCRA court granted Appellant’s motion for 

reconsideration and indicated that it would consider Appellant’s response to 

its Rule 907 notice.

On May 5, 2022, after considering Appellant’s response to the court’s 

Rule 907 notice and finding that he “merely reargue[d] the same issues,”5the 

PCRA court again dismissed Appellant’s petition as untimely.

This pro se appeal followed. Both Appellant and the PCRA court 

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

Appellant raises the following six issues for our review:

[1.] Did the court abuse its discretion when finding Appellant’s 

newly discovered facts untimely although the source(s) were 

either “beyond Pennsylvania’s subpoena powers,” and/or 

uncooperative previously, however, becoming available no earlier 

than February 4, 2021?

[2] Did the lower court abuse its discretion when denying 

Appellant’s PCRA petition without a hearing from the sources of 

the presented affidavit(s), and defense counsel, to explain the 

reason(s) Appellant w[as] advised to refrain from mentioning his 

alibi witness at the time of his testimony?

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5 Order, 5/5/22.
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[3.] Did the PCRA court err[] in finding Appellant’s recent 

discoveries untimely, and/or without merit where the 

evidence/information undoubtedly established governmental 

interference in many ways/forms to deprive one of his 

guarantee[d] constitutional rights?

[4.] Did the court below err[] when deeming the 

Commonwealth[’s] failure to disclose material facts harmless 

simply because “the officer was not a testifying witness” in 

Appellant[’s] case/trial?

[5.] Did the PCRA court abuse its discretion when disregarding the 

admissibility of perjured testimony by the acting prosecutor, 

A.D.A. John Doyle[,] during Appellant’s trial?

[6.] Does Appellant possess a guarantee[d] right to present 

exculpatory evidence that could exonerate Appellant?

Appellant’s Brief at 4.

A.

When reviewing the propriety of an order denying PCRA relief, we 

consider the record “in the light most favorable to the prevailing party at the 

PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super. 

2015) (citation omitted). We must determine whether the evidence of record 

supports the conclusions of the PCRA court and whether the ruling is free of

legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). 

With regard to the PCRA court’s legal conclusions, however, our standard of 

review is de novo. Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011). 

For a court to have jurisdiction in any PCRA proceeding, the appellant 

must have either (1) filed the petition within one year of the judgment of 

sentence becoming final, or (2) pleaded and proved a timeliness exception. 

42 Pa.C.S. § 9545(b)(1). There is no dispute that Appellant’s fifth PCRA 
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Petition, filed more than seven years after his judgment of sentence became 

final on September 24, 2012, is patently untimely.6 Thus, we consider

whether Appellant pleaded and proved a timeliness exception in his petition. 

B.

Appellant argues that his petition falls under the newly-discovered fact 

and government interference exceptions to the PCRA’s time-bar. We will 

address each seriatim. 

Newly-Discovered Fact Exception

The newly-discovered fact exception requires proof that (1) “the facts 

upon which the claim is predicated were unknown to the petitioner[,]” and (2) 

the facts “could not have been ascertained by the exercise of due diligence[.]” 

42 Pa.C.S. § 9545(b)(1)(ii).7 To satisfy the due diligence element of the 

exception, the petitioner must show that he made reasonable efforts “based 

on the particular circumstances, to uncover facts that may support a claim for 

collateral relief.” Commonwealth v. Burton, 121 A.3d 1063, 1071 (Pa. 

Super. 2015) (en banc), aff’d 158 A.3d 618 (Pa. 2017).

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6 Appellant had until September 24, 2013, one year from the expiration of the 

period to request review by the U.S. Supreme Court, to timely file his petition. 

U.S. Sup. Ct. R. 13(a); 42 Pa.C.S. § 9454(b)(3) (explaining that a judgment 

becomes final one year after the conclusion of direct review). Appellant’s 

petition, filed on March 4, 2021, is patently untimely.

7 We conduct our review mindful that “the ‘new facts’ exception . . . does not 

require any merits analysis[.]” Commonwealth v. Brown, 111 A.3d 171, 

177 (Pa. Super. 2015).
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Notably, a petitioner does not satisfy the Section 9545(b)(1)(ii) timebar exception where he merely alleges a newly discovered or newly willing 

source for previously known facts. Commonwealth v. Marshall, 947 A.2d 

714, 721 (Pa. 2008).

In support of his claim that the newly-discovered facts exception to the 

PCRA’s time-bar applies, Appellant relies on the unsigned document he has 

characterized as an “affidavit,” purportedly prepared “in the presence of” Liz 

Conception and the affidavit of his former girlfriend. With respect to the 

unsigned “affidavit,” Appellant claims that “the court below places an 

unreasonable burden on Appellant to produce this Material Witness, who the 

court below recognizes, lives beyond our subpoena powers.” Appellant’s Brief 

at 14. 

In considering Appellant’s claim regarding the unsigned “affidavit”

stating that Ms. Conception never told police that Appellant was the shooter, 

the PCRA court found as follows:

This statement is not a new fact, as it is contained in the police 

activity sheets which were in [Appellant’s] possession at the time 

of trial. Ms. Conception could not be located at [the] time of trial 

and her statement was not admitted. If [Appellant] is claiming 

that she is now a new witness since she made herself unavailable 

for years, which prohibited him from presenting her testimony, his 

claim still fails. She is not a witness who was ever ready or willing 

to testify. . . . Even now, she refused to sign the affidavit taken 

by the investigator or to give her real name.

PCRA Ct. Op., 9/13/22, at 5.

We agree. The record reflects that Appellant knew at the time of his 

2008 trial that Ms. Conception was a witness to the shooting and that his trial 
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counsel had attempted to locate her. He was also aware at that time that Ms. 

Conception had made numerous contradictory pre-trial statements to the 

police consistent with those set forth by Mr. O’Leary in his affidavit and in the 

unsigned “affidavit” attributed to Ms. Conception. In addition, the unsigned 

“affidavit” states only that she was unable to identify the shooter—not that 

Appellant was not the shooter. Furthermore, Ms. Conception refused to make 

herself available to testify at trial and, despite Mr. O’Leary’s affidavit stating 

that Ms. Conception is now back in town, she did not make herself available 

to testify at a PCRA hearing. Consequently, Appellant has failed to 

demonstrate that the unsigned “affidavit” satisfies the newly-discovered fact 

exception to the PCRA’s time-bar.

With respect to his former girlfriend’s affidavit, Appellant claims that “he 

was always aware that [she] was by his side” but “the reasons for her 

abandonment” constitute newly-discovered facts. Appellant’s Brief at 14. 

Appellant asserts that “all he knew was that defense counsel [] informed him 

that she had refused to involve herself with Appellant’s legal defense, and 

asked Appellant to leave her out of it! It was then that defense [] counsel 

advised Appellant to refrain himself from mentioning her during his testimony 

at trial.” Id. 

The PCRA court determined that the alibi provided for Appellant by his 

former girlfriend in her affidavit did not constitute a new fact for purposes of 

the PCRA’s time-bar exception because: (1) if it were true that she was with 

Appellant at the time of the shooting, Appellant would have known of that 
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“fact” all along, and (2) the purported new fact contradicted Appellant’s own 

trial testimony that he was alone. PCRA Ct. Op. at 4.

Following our review of the record, including the notes of testimony from 

Appellant’s trial, we agree with the PCRA court’s determination. Notably, as 

set forth above, Appellant concedes in his Brief to this Court, that he was 

“always aware that [his girlfriend] was by his side.” Apellant’s Brief at 14. 

Thus, her affidavit, in essence, establishes a “newly willing source for 

previously known facts,” which does not satisfy the newly discovered fact’s 

exception to the PCRA’s time-bar.8

Government Interference Exception

Appellant has also invoked the governmental interference exception to 

the PCRA’s time-bar. The government interference exception requires proof 

that “the failure to raise the claim previously was the result of interference by 

government officials[.]” 42 Pa.C.S. § 9545(b)(1)(i). See also 

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008). “Any 

petition invoking an exception provided in paragraph (1) shall be filed within 

one year of the date the claim could have been presented.” 42 Pa.C.S. § 

9545(b)(2).

In support of the applicability of this exception, Appellant asserts that 

the trial prosecutor engaged in misconduct by presenting information at trial 

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8 Moreover, to the extent that Appellant asserts that the reason for his former 

girlfriend’s “abandonment” of him constitutes a new fact, he has not explained 

in his Brief how this purported new fact is relevant to his convictions.
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that was tainted by the misconduct of former Police Officer Cordero. 

Appellant’s Brief at 13, 16. In particular, Appellant claims that 

[t]rial-[p]rosecutor, A.D.A. John Doyle, engaged in [p]rosecutorial 

[m]isconduct when assuming the [investigating] officers could 

have been taken at their word when informing him about facts not 

supported by any of the disclosed materials. [] Apparently, 

[f]ormer[ o]fficer Rafael Cordero, along with William Hunter, and 

Detective Dennis Dusak, assured A.D.A. Doyle, their 

(independent) investigation denies the actual offender being 

[t]hin as the sole eye witness to the matter at bar, recanted her 

initial statement to them.

Id. at 13 (underlining omitted).

As noted above, in his fourth PCRA petition filed in 2019, Appellant

raised a claim arising from the revelation that Officer Cordero was among a 

group of officers “accused of having fabricated evidence and or coerced 

witnesses to obtain wrongful convictions.” PCRA Petition, 2/25/19, at ¶ 4

(unnecessary capitalization omitted). In that petition, Appellant also asserted 

that he had discovered “favorable information” consisting of Liz Conception’s 

“recanted [] statement which clearly exonerates [Appellant] from wrong 

doing(s).” Id. at ¶ 6 (unnecessary capitalization omitted). It is evident, 

therefore, that Appellant was aware of the facts underlying his current claim 

prior to filing his petition in 2019. Thus, Appellant failed to establish that he 

brought the instant claim—raised in his March 4, 2021 petition—within one 

year of the date he could have presented it.9

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9 Moreover, because Appellant raised these claims in his 2019 PCRA petition, 

which the PCRA court dismissed, these claims have been previously litigated. 

See 42 Pa.C.S § 9544(a).
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C.

In sum, we agree with the PCRA court that Appellant failed to plead and 

prove any of the timeliness exceptions provided in 42 Pa.C.S. § 9545(b)(1). 

Thus, the court properly dismissed Appellant’s petition as untimely. 

Accordingly, we affirm the denial of PCRA relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/23/2023