J-S89013-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CURTIS CROSLAND,

Appellant No. 3541 EDA 2015

Appeal from the PCRA Order October 20, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0132641-1988

BEFORE: SHOGAN, MOULTON, and FITZGERALD,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED January 12, 2017

Curtis Crosland (“Appellant”) appeals pro se from the order denying 

his eighth petition for relief filed pursuant to the Post Conviction Relief Act 

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

On December 16, 1988, Appellant was found guilty of murder in the 

second degree, robbery, and weapons offenses. Appellant was sentenced to 

life imprisonment. On September 20, 1990, this Court reversed the 

judgment of sentence and awarded Appellant a new trial. 

On January 29, 1991, Appellant was again convicted of murder in the 

second degree, robbery, and weapons offenses. Appellant was sentenced on 

June 10, 1992, to life imprisonment on the murder charge and consecutive 

____________________________________________

*

 Former Justice specially assigned to the Superior Court.
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sentences of ten to twenty years of incarceration on the robbery charge, and 

two and one-half to five years on the weapons offenses. This Court affirmed 

the judgment of sentence for murder and weapons offenses but vacated the 

sentence on the robbery conviction, and the Pennsylvania Supreme Court 

denied leave to appeal. Commonwealth v. Crosland, 631 A.2d 212 (Pa. 

Super. 1993) (unpublished memorandum), appeal denied, 639 A.2d 24 (Pa. 

1994).

Appellant filed the instant PCRA petition, his eighth, on July 25, 2013.1 

Additionally, he filed a supplemental petition on February 12, 2014, and 

____________________________________________

1

 Appellant filed his first PCRA petition on March 30, 1995. It was denied on 

October 10, 1996. This Court affirmed the denial of the petition on 

September 16, 1997, and the Pennsylvania Supreme Court denied leave to 

appeal on March 10, 1998. Commonwealth v. Crosland, 704 A.2d 160 

(Pa. Super. 1997) (unpublished memorandum), appeal denied, 723 A.2d 

669 (Pa. 1998).

Appellant filed his second PCRA petition on March 9, 1999. It was 

dismissed as untimely on January 24, 2000. This Court affirmed the 

dismissal on January 25, 2001. Commonwealth v. Crosland, 776 A.2d 

289 (Pa. Super. 2001) (unpublished memorandum). Appellant did not seek 

leave to appeal to the Pennsylvania Supreme Court. 

Appellant filed a third PCRA petition on May 17, 2001, styled as a petition 

for writ of habeas corpus, which the PCRA court dismissed on January 7, 

2002. This Court affirmed the dismissal on February 25, 2003. 

Commonwealth v. Crosland, 821 A.2d 131 (Pa. Super. 2003) 

(unpublished memorandum). Appellant did not seek leave to appeal to the 

Pennsylvania Supreme Court.

On May 4, 2004, Appellant filed a fourth PCRA petition. It was dismissed 

as untimely on August 24, 2004. This Court affirmed the dismissal on 

June 22, 2005, and the Pennsylvania Supreme Court denied leave to appeal 

(Footnote Continued Next Page)
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another petition on August 12, 2014, both without leave of court pursuant to 

Pa.R.Crim.P. 905. The PCRA court issued a notice of intent to dismiss 

pursuant to Pa.R.Crim.P. 907 on June 23, 2015, and Appellant filed a 

response on July 14, 2015. The PCRA court dismissed Appellant’s petition 

on October 20, 2015. This appeal followed. Appellant and the PCRA court 

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

On appeal, Appellant raises the following questions for our review, 

which we reproduce verbatim:

I. Did the PCRA court err, and commit reversible error when 

it dismissed petition as untimely filed without the benefit of 

a properly conducted evidentiary hearing to determine the 

credibility of Micheal Turner’s presented statement(s) that 

lead to the filing of said petition, and evidence of Delorus 

(Footnote Continued) _______________________

on March 31, 2006. Commonwealth v. Crosland, 883 A.2d 686 (Pa. 

Super. 2005) (unpublished memorandum), appeal denied, 898 A.2d 1069 

(Pa. 2006).

On June 6, 2006, Appellant filed his fifth PCRA petition. It was dismissed 

as untimely on March 30, 2007. This Court affirmed the dismissal on April 1, 

2008, and the Pennsylvania Supreme Court denied leave to appeal on 

December 2, 2008. Commonwealth v. Crosland, 953 A.2d 826 (Pa. 

Super. 2008) (unpublished memorandum), appeal denied, 961 A.2d 858 

(Pa. 2008).

Appellant filed his sixth PCRA petition on January 30, 2009. The petition 

was dismissed as untimely on October 14, 2009. This Court affirmed the 

dismissal on August 12, 2010. Commonwealth v. Crosland, 11 A.3d 1022 

(Pa. Super. 2010) (unpublished memorandum). Appellant did not seek 

leave to appeal to the Pennsylvania Supreme Court.

Appellant filed his seventh PCRA petition on May 16, 2012. The PCRA 

court dismissed the petition as untimely on June 19, 2013. Appellant did not 

appeal that decision.
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Tilghman found as a result in support of statement and 

therefore being able to render a fully informed legal 

opinion on Petitioner”s innocenc?

II. Did the PCRA court err, and commit reversible error when 

it failed to recognized a timely presented motion to the 

court, that was pertinent to the due process of law with 

regards to final disposition of a PCRA petition ?

III. Did the Commonwealth’s attorney perpetrate a knowing 

fraud upon the court when it failed to disclose discovered 

material to the defense, that was presented to the court at 

trial, and knew was inherently false in nature ?

IV. Whether the PCRA court erred that other innocence 

evidence of a district attorney officer conducted an 

undisclosed investigation and reported state key witness 

Rodney Everett excluded Petitioner of 1986 murder 

confession the time period between June of 1986 and Late 

as March 27, 1987 was precluded due to due diligence 

after the state under these proceedings conceded for the 

first time full discovery was denied which included the 

statement of William Massey during trial and under the 

first PCRA review denied any evidence existed that 

excluded Petitioner of the murder confession prior to 

Everett’s recantation whereas Massey’s undisclosed 

statement did, and would same be unconstitutional now to 

not review in light of Delorus Tilghman”s new evidence 

when the jury was asked to compare both statements to 

support a finding of a guilty verdict even though the claim 

was initially filed pursuant to Perkins Super. ?

V. Whether Petitioner should be entitled to relief of his trial 

ineffective claims under Martinez Super., in light Henkel 

Super., in that the Sixth Amendment violations is a 

miscarriage of justice. ?

VI. Whether Miller vs. Alabam/Montgomery Super., juvenile 

claim entitles Petitioner to retroactive relief

Appellant’s Brief at vi. We note that Appellant filed a reply brief in which he 

restates his arguments as objections to the Commonwealth’s responses.
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When reviewing the propriety of an order denying PCRA relief, this 

Court is limited to determining 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). The PCRA 

court’s findings will not be disturbed unless there is no support for them in 

the certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. 

Super. 2014).

Initially, we address whether this appeal is properly before us. The 

PCRA court dismissed Appellant’s petition as untimely. “As the timeliness of 

a PCRA petition is a question of law, our standard of review is de novo and 

our scope of review is plenary.” Commonwealth v. Callahan, 101 A.3d 

118, 121 (Pa. Super. 2014) (citation omitted). Moreover, the timeliness of a 

PCRA petition is a jurisdictional threshold that may not be disregarded in 

order to reach the merits of the claims raised in a PCRA petition that is 

untimely. Commonwealth v. Cintora, 69 A.3d 759, 762 (Pa. Super. 

2013). “We have repeatedly stated it is the [petitioner’s] burden to allege 

and prove that one of the timeliness exceptions applies. See, e.g., 

Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999). Whether [a 

petitioner] has carried his burden is a threshold inquiry prior to considering 

the merits of any claim.” Commonwealth v. Edmiston, 65 A.3d 339, 346 

(Pa. 2013).
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In order to be considered timely, a first, or any subsequent PCRA 

petition, must be filed within one year of the date the petitioner’s judgment 

of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). Since his sentencing 

on June 10, 1992, Appellant has filed seven PCRA petitions in the court 

below; as such, his instant petition would be time-barred absent the 

applicability of one of the exceptions enumerated in 42 Pa.C.S. 

§ 9545(b)(1).2 

A petition invoking one of these exceptions must be filed within sixty 

days of the date the claim could first have been presented. 42 Pa.C.S. 

§ 9545(b)(2). In order to be entitled to the exceptions to the PCRA’s oneyear filing deadline, “the petitioner must plead and prove specific facts that 

demonstrate his claim was raised within the sixty-day time frame” under 

____________________________________________

2

 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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section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa. 

Super. 2001). “If the petition is determined to be untimely, and no 

exception has been pled and proven, the petition must be dismissed without 

a hearing because Pennsylvania courts are without jurisdiction to consider 

the merits of the petition.” Commonwealth v. Perrin, 947 A.2d 1284, 

1285 (Pa. Super. 2008).

Throughout his first three issues, Appellant invokes two of the three 

enumerated exceptions to the PCRA time-bar. First, Appellant raises the 

second exception, claiming newly-discovered facts that were unknown to 

him and that allegedly could not have been ascertained by the exercise of 

due diligence. 42 Pa.C.S. § 9545(b)(1)(ii).3 According to Appellant, the 

newly discovered facts appear in an affidavit by Michael Turner dated July 8, 

2014, which Appellant attached to his second unauthorized supplemental 

petition. Newly Supplemental Petition, 8/12/14, at Appendix A. Appellant 

____________________________________________

3

 The Pennsylvania Supreme Court recently addressed this exception again 

in Commonwealth v. Mitchell, 141 A.3d 1277 (Pa. 2016):

The “newly-discovered fact” exception applies only to the PCRA’s 

time bar, and it “requires petitioner to allege and prove that

there were “facts” that were “unknown” to him and that he 

exercised due diligence. An “after-discovered evidence” claim, 

by contrast, provides a basis for substantive relief and requires 

that the proffered evidence be “exculpatory” and that it “would 

have changed the outcome of the trial.”

Mitchell, 141 A.3d at 1283 n.4 (quoting Commonwealth v. Bennett, 930 

A.2d 1264, 1270–1273 (2007)).
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claims that his relative, Ms. Tilghman, gave false testimony at his trial when 

she denied having mental health issues and that Michael Turner’s affidavit 

substantiates her mental illness. Appellant’s Brief at 1–8 (citing N.T., 

1/25/91, at 90). In further support of his argument, Appellant cites to a 

recorded statement Ms. Tilghman gave to Michael Turner’s attorney months 

before Appellant’s arrest, in which she disclosed her mental health issues. 

Id. at 2–7 (citing Tilghman Statement, 4/27/87, at 7–11). Appellant also 

claims that, unbeknownst to him at trial, Detective Cimino knew about 

Ms. Tilghman’s mental health issues. Id. at 8–11, 14–16.

The Commonwealth counters that Appellant’s new-facts claim “was 

never properly raised before the PCRA court. He addressed it only in one of 

his unauthorized amended petitions and in his response to the PCRA court’s 

Rule 907 notice.” Commonwealth’s Brief at 14 (citations omitted). 

According to the Commonwealth, Appellant was required “to plead any timebar exception in either his petition or in an amended petition filed with leave 

of court.” Id. at 14–15 (citations omitted).4 Additionally, the 

____________________________________________

4

 We disagree with the Commonwealth’s suggestion that Appellant has 

waived this claim by raising it in a supplemental PCRA petition filed without 

leave of court. When a PCRA court fails to strike a supplemental petition 

and addresses issues raised therein in ruling upon the petition, the PCRA 

court implicitly permits amendment under Pa.R.Crim.P. 905(A). See

Commonwealth v. Brown, 141 A.3d 491, 504–505 (Pa. Super. 2016) 

(“[W]hen a petitioner files supplemental materials to a PCRA petition, and 

the PCRA court considers such materials, an attempt by the Commonwealth 

to preclude consideration of such materials fails.”). Herein, not only did the 

(Footnote Continued Next Page)
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Commonwealth contends that Appellant failed to properly develop this claim 

because he did not “plead and offer to prove in his petition that he proffered 

the Turner affidavits with the due diligence the PCRA required.” Id. at 15, 

19. Moreover, the Commonwealth argues that Appellant’s “claim to the 

time-bar exception was unavailing because it consisted merely of new 

sources for previously known information” and “could be used only for 

impeachment purposes.” Id. at 16, n.4 (citations omitted). 

The PCRA court crystallized the Tilghman portion of Appellant’s newlydiscovered-facts argument as follows:

[Appellant] claimed to have [newly]-discovered evidence 

concerning the testimony of Delorus Tilghman,[5] who testified at 

[Appellant’s] trial. [Appellant] submitted an affidavit from 

Michael Turner claiming to have information concerning the 

(Footnote Continued) _______________________

PCRA court not strike Appellant’s supplemental petitions, it entered its order 

of dismissal after “consideration of Petitioner’s Post Conviction Relief Act 

Petition, and all supplemental petitions, and Petitioner’s Response to the 

Notice of Intent to Dismiss Pursuant to Pa.R.Crim.P. 907.” Order, 10/20/15. 

Moreover, the PCRA court addressed the section 9545(b)(1)(ii) claim raised 

in Appellant’s supplemental petition. PCRA Court Opinion, 2/1/16, at 3–5. 

Under the circumstances, the Commonwealth may not avail itself of waiver. 

However, because Appellant did not raise the Detective Cimino portion of 

his section 9545(b)(1)(ii) claim in his eighth PCRA petition or supplemental 

filings and the PCRA court did not address that part of the claim, the 

Commonwealth’s waiver argument prevails.

5

 Ms. Tilghman’s first name is spelled in various ways throughout the 

record: “Delorus,” “Dolores,” and “Delores.” We shall refer to her as 

Ms. Tilghman. She testified at Appellant’s trial that she overheard him and 

two other people discussing the killing; specifically, she heard Appellant 

state he was afraid someone would come forward to claim a reward for 

information about the murder. N.T., 1/25/91, at 72, 79.
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truthfulness of Delorus Tilghman. [Appellant] submitted two 

affidavits from Michael Turner; one dated July 8, 2014, and one 

dated August 22, 2000, which is notarized. Mr. Turner states 

that had he been called to testify at [Appellant’s] trial, he would 

have given testimony to support his claim that Ms. Tilghman, 

who is the mother of his children, had a propensity and motive 

to lie.

PCRA Court Opinion, 2/1/16, at 3–4 (unnumbered). In disposing of this part 

of Appellant’s new-facts claim, the PCRA court opined as follows:

Upon review of this claim, it is clear that this newlydiscovered evidence claim is clearly untimely given that 

Mr. Turner’s affidavit is dated August 22, 2000. [Appellant] 

raised this claim in 2013, which is well past the 60 day time 

period to file newly discovered claims. [Appellant] offered no 

reason to explain the delay and by waiting so long to raise the 

claim, he failed to demonstrate due diligence as required by the 

law to overcome the PCRA’s time bar. Thus, this court was 

without jurisdiction to review the merits of this claim.

As for Mr. Turner’s affidavit dated July 8, 2014, this 

document contained a written statement signed by Ms. Delores 

Tilghman. The statement was made on April 27, 1987. 

Mr. Turner’s July 8, 2014, affidavit referenced that 

Attorney Daniel Paul Alva had obtained a taped interview with 

Ms. Tilghman. Mr.Turner admits in his July 8, 2014 affidavit that 

his attorneys played the tape of Ms. Tilghman at his preliminary 

hearing in May of 1987. That was before both of [Appellant’s] 

trials and could have been used to cross examine Ms. Tilghman. 

Therefore, the alleged [newly]-discovered facts advanced by 

[Appellant] were discoverable since 1987. A PCRA claim is 

waived “if the petitioner could have raised it but failed to do so 

before trial, at trial, during unitary review, on appeal or in a prior 

state post-conviction proceeding.” 42 Pa.C.S.A. § 9544(b). 

Therefore, this claim affords no relief. See also Commonwealth 

v. Marshall, 947 A.2d 714, 720 (Pa. 2008) (holding that the 

focus of the newly-discovered evidence exception “is on the 

newly discovered facts, not on a newly discovered or newly 

willing source for previously known facts.”).

PCRA Court Opinion, 2/1/16, at 4–5 (unnumbered).
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Upon review of Appellant’s arguments and the certified record, we 

conclude that his petition was filed within sixty days of Michael Turner’s 

July 8, 2014 affidavit. Nevertheless, Appellant is not entitled to relief under 

section 9545(b)(1)(ii) for multiple reasons. First, we agree with the PCRA 

court that, given the information and dates revealed in Michael Turner’s 

affidavits, Appellant could have raised this claim in a prior proceeding 

through the exercise of due diligence. PCRA Court Opinion, 2/1/16, at 

unnumbered 5. See Commonwealth v. Burton, 121 A.3d 1063, 1071 (Pa. 

Super. 2015) (en banc) (“[D]ue diligence requires neither perfect vigilance 

nor punctilious care, but rather it requires reasonable efforts by a petitioner, 

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

claim for collateral relief.”) (citations omitted). The record does not reveal 

any reasonable efforts by Appellant to present his newly discovered-facts 

claim within the requisite sixty-day time period. Because he did not, it is 

waived. 42 Pa.C.S. § 9544(b). 

Second, Appellant’s newly-discovered facts amount to previously 

known facts delivered by new sources. See Commonwealth v. Marshall, 

947 A.2d 714, 720 (Pa. 2008) (holding that the focus of section 

9545(b)(1)(ii) “is on the newly discovered facts, not on a newly discovered 

or newly willing source for previously known facts”) (emphasis in original). 

Here, Appellant knew about Ms. Tilghman’s mental health issues and 

Michael Turner’s relationship to Ms. Tilghman. What he characterizes as new 
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facts are, rather, new sources. Such a claim does not afford relief. Third, 

Appellant’s newly-discovered facts regarding Ms. Tilghman’s mental health 

could be used only to impeach her credibility, which is not a basis for relief. 

Commonwealth v. v. Abu-Jamal, 941 A.2d 1263 (Pa. Super. 2008). For 

these reasons, we conclude that Appellant’s claim does not render his 

petition timely under section 9545(b)(1)(ii).

Appellant also invokes the first time-bar exception within his first three 

issues, asserting interference by government officials with the presentation 

of his claim. 42 Pa.C.S. § 9545(b)(1)(i). According to Appellant, the 

Commonwealth was aware of Ms. Tilghman’s mental health issues, 

Detective Cimino’s knowledge of the same, and the recantation of an 

unavailable Commonwealth witness, Rodney Everett, but it failed to disclose 

that information to Appellant in violation of Brady v. Maryland, 373 U.S. 83 

(1963). Appellant’s Brief at 7, 15–26; 42 Pa.C.S. § 9545(b)(1)(i).6 

In response, the Commonwealth observes that Appellant “argues, in a 

rambling, disjointed fashion, that the Commonwealth engaged in 

governmental interference for time-bar purposes by permitting various 

instances of false testimony at his trial.” Commonwealth’s Brief at 18. The 

Commonwealth characterizes Appellant’s argument as “undeveloped, 

unsupported, and irrelevant.” Id. at 19.

____________________________________________

6

 We note that the PCRA court did not address Appellant’s governmentinterference claim or alleged Brady violations.
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Upon review, we conclude that Appellant has failed to demonstrate 

that government interference prevented him from raising his claim in a 

timely manner. 42 Pa.C.S. § 9545(b)(1)(i). Indeed, as the Commonwealth 

asserts, “at most, [Appellant] baldly asserted that information that was not 

presented at his trial was ‘suppressed’ . . . without showing that the 

government improperly withheld the information from him or prevented it 

from being presented at trial.” Commonwealth’s Brief at 19. See

Commonwealth v. Stokes, 959 A.2d 306 (Pa. 2008) (rejecting argument 

that a Brady claim operates to negate—wholly—the statutory timeliness 

requirements set forth in the PCRA). 

In sum, we conclude that Appellant was not entitled to the benefit of 

the first or second enumerated exceptions to the PCRA time bar. Therefore, 

the PCRA court did not err in denying his untimely petition because it lacked 

jurisdiction.

In his fourth issue, Appellant complains that the PCRA court erred in 

ruling that his claim related to Rodney Everett was previously litigated. 

Appellant’s Brief at 27–37. According to Appellant, “[t]he District 

Attorney withheld evidence obtained by its own Office and Court 

Officer William Massey that Rodney Everett excluded [Appellant as] the 

murder[er]. . . . Had the jury heard this evidence it would not have voted to 

convict [Appellant].” Id. at 32. Appellant also includes in this section of his 

argument an ineffective assistance of counsel (“IAC”) claim based on 
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Commonwealth v. Bazemore, 614 A.2d 684 (Pa. 1992).7 Appellant’s Brief 

at 33–36.

The Commonwealth’s response is two-fold. First, it submits that IAC 

claims do not defeat the PCRA time bar. Commonwealth’s Brief at 19 (citing 

Commonwealth v. Crews, 863 A.2d 498, 503 (Pa. 2004)). Second, the 

Commonwealth contends that Appellant’s argument regarding Rodney 

Everett was previously litigated in his fourth PCRA petition and, therefore, 

not entitled to review. Id. at 20 (citing 42 Pa.C.S. §§ 9543(a)(3) and 

9544(b), Commonwealth v. Robinson, 82 A.3d 998, 1005 (Pa. Super. 

2013)).

Without addressing the IAC component of Appellant’s fourth issue, the 

PCRA court agreed with the Commonwealth’s position on Rodney Everett:

[Appellant], has he had done previously, again attempted 

to attack the statements made by Rodney Everett. Pursuant to 

section 9543 of the PCRA, a petitioner is eligible for relief only if 

“the allegation of error has not been previously litigated or 

waived.” 42 Pa.C.S.A. § 9543(a)(3). Pursuant to section 9544 

of the PCRA, “an issue has been previously litigated if . . . it has 

been raised and decided in a proceeding collaterally attacking 

the conviction or sentence.” 42 Pa.C.S.A. § 9544(a)(3). Here, 

arguments over the credibility of Mr. Everett, as well as

arguments related to how Mr. Everett’s statements were 

presented, have been the subject of two direct appeals and prior 

____________________________________________

7

 In Bazemore, the Pennsylvania Supreme Court held that the transcript of 

prior testimony by an unavailable Commonwealth witness was not 

admissible at trial because the Commonwealth had failed to disclose to the 

defense vital impeachment evidence regarding that witness prior to the 

preliminary hearing. Bazemore, 614 A.2d at 688.
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PCRA petitions. As such, this court has no jurisdiction to 

entertain [Appellant’s] claims.

PCRA Opinion, 2/1/16, at unnumbered 5.

Upon review of the certified record, we discern no abuse of the PCRA 

court’s discretion or error of law in its legal conclusions. Appellant's 

ineffectiveness claims are not cognizable as an exception to the PCRA’s time 

bar. Commonwealth v. Albrecht, 994 A.2d 1091, 1095 n.5 (Pa. 2010). 

Moreover, a panel of this Court ruled in 2005 that Appellant’s Bazemore

claim “could have been raised as early as 1992.” Commownealth v. 

Crosland, 2634 EDA 2004, 883 A.2d 686 (Pa. Super. filed June 22, 2005) 

(unpublished memorandum at 6–7). Thus, Appellant’s fourth issue does not 

warrant relief.

In his fifth issue, Appellant invokes the third time-bar exception by 

joining an IAC claim with the United States Supreme Court’s decision 

Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309 (2012), to create a new 

constitutional right.8 42 Pa.C.S. § 9541(b)(1)(iii). Initially, Appellant 

____________________________________________

8

 Martinez involved a federal habeas petition alleging ineffective assistance 

of PCRA counsel. The United States Supreme Court acknowledged that, 

under the doctrine of “procedural default,” a federal habeas court will not 

review the merits of claims, including constitutional claims, that a state court 

declined to hear because the prisoner failed to abide by a state procedural 

rule. Martinez, 132 S.Ct. at 1316. However, faced with an IAC claim, the 

Martinez Court created a narrow exception: “Where, under state law, 

claims of ineffective assistance of trial counsel must be raised in an initialreview collateral proceeding, a procedural default will not bar a federal 

habeas court from hearing a substantial claim of ineffective assistance at 

(Footnote Continued Next Page)
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concedes that this claim was previously litigated, but then he alleges that no 

court actually reviewed the claim due to a judicial breakdown. Id. at 38, 

41.9 Furthermore, Appellant argues that his IAC claim has merit and, 

therefore, is entitled to review. Id. at 42–44 (citing Bazemore).

The Commonwealth counters as follows: “This Court has held that 

‘while Martinez represents a significant development in federal habeas 

corpus law, it is of no moment with respect to the way Pennsylvania courts 

apply the plain language of the time bar set forth in section 9541(b)(1) of 

the PCRA.’” Commonwealth’s Brief at 20 (quoting Commonwealth v. 

(Footnote Continued) _______________________

trial if, in the initial-review collateral proceeding, there was no counsel or 

counsel in that proceeding was ineffective.” Id. at 1320.

9

 The PCRA court addressed this allegation as follows:

[Appellant] previously filed a PCRA [petition] on May 16, 2012, 

which he supplemented on August 7, 2012, and August 21, 

2012, wherein he [raised] claims under Miller v. Alabama, 132 

S.Ct. 2455 (2012), and Martinez v. Ryan, 132 S.Ct. 1309 

(2012). That petition was dismissed on June 19, 2013, and 

[Appellant] did not appeal. [Appellant] filed another PCRA 

petition on July 25, 2013, which he entitled, “Amended PCRA not 

Second.”

PCRA Court Opinion, 2/1/16, at unnumbered 5 (footnote omitted). Our 

review of the record reveals that Appellant sought reinstatement of his 

appeal rights in a filing dated January 23, 2014, claiming that he did not 

have notice of the June 19, 2013 dismissal until he received the PCRA Unit 

Docket Sheet on December 17, 2013. Letter Motion, 1/23/14. The PCRA 

court concluded, “Had [Appellant] exercised due diligence he could have 

discovered that his prior petition had been dismissed.” PCRA Opinion, 

2/1/16, at unnumbered 5. We agree, thus finding no error.
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Saunders, 60 A.3d 162, 165 (Pa. Super. 2013)). The PCRA court agreed, 

and so do we. As the PCRA court opined:

[Appellant] alleged that in Martinez, the United States Supreme 

Court recognized a new constitutional right and, in accordance 

with this new constitutional right, he was now entitled to raise 

claims that his trial counsel and direct appellate counsel were 

ineffective. [Appellant] was mistaken. In Martinez, the 

Supreme Court held that where counsel is ineffective in a prior, 

initial state collateral review proceeding, and where the 

ineffectiveness caused the petitioner to procedurally default on a 

substantive claim, counsel’s ineffectiveness “may provide cause 

[to excuse a] procedural default in a federal habeas proceeding.” 

[Martinez, 132 S.Ct.] at 1315. Yes, as the Martinez Court 

explicitly declared, it was not handing down a “constitutional 

ruling” and it was not recognizing a new constitutional right. Id.

at 1319-1320. Rather, the Martinez Court based its holding 

upon an “equitable” exception to a court-created doctrine that is 

applicable only in the federal courts. Id.; see also

Commonwealth v. Saunders, 60 A.3d 162, 165 (Pa. Super. Ct. 

2013) (holding that “while Martinez represents a significant 

development in federal habeas corpus law, it is of no moment 

with respect to the way Pennsylvania courts apply the plain 

language of the time bar set forth in section 9545(b)(1) of the 

PCRA.”). As such, this claim was meritless.

PCRA Court Opinion, 2/1/16, at unnumbered 6–7. We adopt the PCRA 

court’s sound reasoning as our own and conclude that Appellant’s fifth issue 

does not warrant relief.

Also under the guise of the third enumerated exception, Appellant 

claims that he is actually innocent and, therefore, entitled to an evidentiary 

hearing on the merits. Appellant’s Brief at 12 (citing McQuiggin v. 

Perkins, ___ U.S. ___, 133 S.Ct. 1924 (2013)). The Commonwealth 

responds that “an assertion of innocence does not confer jurisdiction on an 

otherwise untimely filed PCRA petition.” Commonwealth’s Brief at 18 (citing 
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42 Pa.C.S. § 9545(b)(1), and Commonwealth v. Fahy, 737 A.2d 214, 223 

(Pa. 2014) (assertions of actual innocence do not excuse the time-bar)). We 

agree. In doing so, we adopt as our own the reasoning of the PCRA court:

[Appellant] further raised a claim under the United States 

Supreme Court’s decision in McQuiggin v. Perkins, 133 S.Ct. 

1924 (2013). This case held that a showing of actual innocence 

was sufficient to circumvent the statute of limitations for filing a 

federal habeas corpus petition under the Anti-Terrorism and 

Effective Death Penalty Act (AEDPA). However, it did not 

address state collateral review proceedings or substantive 

constitutional issues. As such, contrary to [Appellant’s] 

argument, McQuiggin did not announce a new relevant rule of 

constitutional law that has been made retroactive by either our 

Supreme Court or the Supreme Court of the United States. 

Therefore, [Appellant’s] claim was meritless.

PCRA Court Opinion, 2/1/16, at unnumbered 7. Appellant is not entitled to 

relief under the third time-bar exception.

In his final issue, Appellant challenges the legality of his mandatory life 

sentence without parole on two fronts: Miller v. Alabama, ___ U.S. ___, 

132 S.Ct. 2455 (2012), and Alleyne v. United States, ___ U.S. ___, 133 

S.Ct. 211 (2015). Appellant’s Brief at 45–50.10 The Miller Court held that 

“mandatory life without parole for those under the age of 18 at the time of 

their crimes violated the Eighth Amendment’s prohibition on cruel and 

unusual punishment.” Miller, 132 S.Ct. at 2460. 

Invoking Miller, Appellant acknowledges that he was twenty-two 

years old at the time of his crimes. Appellant’s Brief at 46. However, he 

____________________________________________

10

 The PCRA court did not address Appellant’s sentencing issues.
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relies on science to declare himself a juvenile and, therefore, ineligible for a 

mandatory life-without-parole sentence:

[Appellant’s] sentence is a disproportionate punishment as a 

mandatory life-without parole for a youth homicide offender, 

violat[es] the Eight Amendment’s (U.S.C.A.) prohibition on “cruel 

and unusual punishment” for the undisputed reasoning of a 

youth offender between the ages of 18 to 25 suffering from the 

same similar irresponsible characteristic and immature traits as 

those describe[d] in association with juvenile offenders. 

Drawing the line at 18 years places [Appellant] into the same 

categorical rule the United States Supreme Court reject[s] today 

as unconstitutional. . . . The qualities that distinguish juveniles 

from adults do not disappear when an individual turns 18. 

Expert testimony was given by Doctor Steinberg, lead scientist 

the age 18-to-25, are still susceptible to immaturities that will, in 

a foreseeable time, prove to be an unfortunate yet familiar 

transient phase. This is especially [true] when considering that 

biological immaturity is being used as a conduit for exposure to 

negative influence and, in many cases, has been in such manner 

since one’s juvenile upbringing. A relevant yet neglected

viewpoint when observing certain lifestyle behavior within 

impoverish[ed] and crime-producing neighborhoods within 

prevalent societies across the nation.

Therefore, the same argument that is being declared under 

Miller . . . can rightfully as well as “scientifically” be argued here. 

The Court in Miller validated the brain does not mature until mid20’s (i.e. 25). According to the scientific brain 

studies . . . [t]here can be no bright line draw[n] at age 17. 

Science and social science expert testimony offered at the United 

States Supreme Court states the mind does not fully develop 

until mid-20’s (i.e. to 25).

To that end, its [sic] the lower court opined opinion that 

[Appellant] herein was age 22 at the time of the alleged offense 

and he therefore does not fall within the range. . . . The lower 

court states the Court in Miller limited itself to age 17. 

[Appellant] contends the lower Court err[ed]. The United States 

Supreme Court validated the science studies and new brain 

imagining research study that brain wiring continues to develop 

until mid-20’s (i.e. 25). To that end, age became an element in 

sentence scheme. . . . And that as a sentencing factor it violated 
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the Eight[h] Amendment. [Appellant] fits into that class of 

juveniles.

Appellant’s Brief at 45–46 (some internal citations omitted).11

While we appreciate Appellant’s creative reasoning, Miller itself 

precludes us from granting him relief. As the PCRA court opined:

The Miller holding specifically limited itself to juveniles 

under eighteen years of age who were sentenced to life without 

parole for committing the crime of murder. Although [Appellant] 

was sentenced to life without parole and convicted of second 

degree murder, he was over eighteen years old at the time of 

the crime; he was twenty-to years old at the time of the crime. 

The circumstances of this case exceed the parameters of the 

Supreme Court’s Miller decision. Therefore, [Appellant’s] Miller

claim was denied.

PCRA Opinion, 2/1/16, at unnumbered 8. See also Cintora, 69 A.2d at 764 

(holding petitioner’s argument that Miller should be extended to included 

offenders who were older than seventeen did not render PCRA petition 

timely). 

Lastly, invoking Alleyne, Appellant argues that a jury should have 

decided if his age was a mitigating factor, thereby precluding imposition of a 

mandatory life-without-parole sentence. Appellant’s Brief at 46–50. The 

Alleyne Court held, “Any fact that, by law, increases the penalty for a crime 

____________________________________________

11

 We reject the Commonwealth’s argument that Appellant waived this 

claim. The PCRA court did not strike Appellant’s supplemental filing, and it 

addressed Appellant’s Miller-based argument in its Pa.R.A.P. 1925(a) 

opinion. See Brown, 141 A.3d at 504–505 (“[W]hen a petitioner files 

supplemental materials to a PCRA petition, and the PCRA court considers 

such materials, an attempt by the Commonwealth to preclude consideration 

of such materials fails.”).
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is an ‘element’ that must be submitted to the jury and found beyond a 

reasonable doubt.” Alleyne, 133 S.Ct. at 2155. According to Appellant:

Science and social science, Psychology and brain imaging studies 

demonstrate difference between adolescent and adult minds. 

Brain develop maturity is not [like] a machine[;] it does not 

have a switch to turn off at age 18. . . . The lower Court [erred 

t]o hold that the United States Supreme Court limited the 

scope . . . when the Court validated the science and social 

science and heard testimony by the Experts. The Court 

accept[ed] those facts as true. Mid 20’s (i.e. 25).

Wherefore, this Court should send this claim to the lower 

court and allow a jury to decide his juvenile [sic] mitigating 

factors. . . .

Id. at 50.

In response, the Commonwealth argues waiver and lack of merit:

[Appellant] never asserted [this Alleyne claim] in any of his 

filings before the PCRA court and thus failed to preserve it for 

this Court’s review. Pa.R.A.P. 302(a).

In any event, the decision could not have conferred 

jurisdiction on the PCRA court to review [Appellant’s] petition. 

The Pennsylvania Supreme Court recently held that Alleyne does 

not apply retroactively to attacks on mandatory minimum 

sentences advanced on collateral review. See Commonwealth v. 

Washington, ___ A.3d ___, 2016 WL 3909088, *8 (Pa., decided 

July 19, 2016). The Court held that Alleyne sets forth no new 

rule of constitutional law as it “neither alters the range of 

conduct nor the class of persons punished by the law” and “is 

not of a groundbreaking, ‘watershed’ character.” Id. at 7, citing 

Alleyne, 133 S.Ct. at 2155.

Commonwealth’s Brief at 22–23 (some internal citations omitted). 

Upon review, we are constrained to agree with the Commonwealth for 

the reasons it advances. Appellant’s Alleyne challenge is waived and 

meritless. See Commonwealth v. Ligons, 971 A.2d 1125, 1163 (Pa. 
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2009) (claims not raised in PCRA petition are waived) (citation omitted); 

Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016) (holding 

that Alleyne does not apply retroactively to cases pending on collateral 

review).

In conclusion, because Appellant’s PCRA petition was untimely and no 

exceptions apply, the PCRA court correctly determined that it lacked 

jurisdiction to consider the merits of Appellant’s PCRA petition and properly 

dismissed it as untimely filed. Accordingly, we affirm the PCRA court’s 

October 20, 2015 Order. Commonwealth v. Lawson, 90 A.3d 1, 8 (Pa. 

Super. 2014).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/12/2017