J-S39041-19

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TYRONE SLOWE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3 EDA 2019

Appeal from the Order Entered November 30, 2018

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

No(s): CP-23-CR-0002955-2008

BEFORE: GANTMAN, P.J.E., STABILE, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 19, 2019

Appellant Tyrone Slowe appeals from the order of the Court of Common 

Pleas of Delaware County denying his pro se petition pursuant to the Post 

Conviction Relief Act (PCRA),

1 his petition for post-conviction DNA testing, and 

his petition for discovery materials. We affirm.

Appellant was charged in connection with the April 16, 2008 murders of 

Tyrone Nelson and Jimmy Strong in Upper Darby. On February 18, 2009, 

Appellant entered a nolo contendere plea to two counts of third-degree murder

and one count of persons not to possess a firearm. Thereafter, Appellant was 

sentenced to an aggregate term of seventeen to thirty-four years’ 

incarceration. Appellant filed a post-sentence motion to withdraw his plea, 

which the lower court denied. On March 3, 2010, this Court affirmed the 

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1 42 Pa.C.S.A. §§ 9541-9546.
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judgment of sentence and on September 16, 2010, our Supreme Court denied 

Appellant’s petition for allowance of appeal.

On December 22, 2010, Appellant filed his first PCRA petition. The PCRA 

court subsequently appointed counsel, who filed a petition to withdraw along 

with a no-merit letter. The PCRA court issued notice of its intent to dismiss 

the petition without a hearing pursuant to Pa.R.Crim.P. 907. On May 18, 

2011, the PCRA court dismissed the petition.

On June 24, 2014, this Court affirmed the PCRA court’s order dismissing 

Appellant’s petition. The panel noted that Appellant wished to raise certain 

claims of ineffectiveness of counsel for the first time on appeal in a 

supplemental brief; however, this Court determined that Appellant could only 

raise the ineffectiveness claims in a new PCRA petition that met the PCRA 

timeliness requirements. On July 16, 2014, Appellant filed a petition for 

allowance of appeal in the Supreme Court at 506 MAL 2014.

Just two days later, while Appellant’s appeal related to his first PCRA 

petition was pending in the Supreme Court, Appellant filed the instant PCRA 

petition on July 18, 2014, which the PCRA court held in abeyance during the 

pendency of Appellant’s appeal of his first petition. On November 18, 2014, 

our Supreme Court denied Appellant’s petition for allowance of appeal.

On May 26, 2015, Appellant filed a pro se motion for DNA testing. On 

December 27, 2016, Appellant attempted to file an amended PCRA petition. 

On May 3, 2017, Appellant filed a “Motion for Updated Discovery Materials.”
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On September 14, 2018, the PCRA court issued Rule 907 notice of its 

intent to dismiss the petition. On November 30, 2018, the PCRA court 

dismissed Appellant’s second PCRA petition (filed on July 18, 2014), his 

amended PCRA petition (filed on December 27, 2016), his motion for DNA 

testing, and his motion for request updated discovery materials. Appellant 

filed this appeal and complied with the PCRA court’s direction to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant raises the following issues for our review:

I. Whether PCRA Court erred by ruling Appellant’s second 

PCRA Petition was untimely based upon the date the 

evidence was discovered?

II. Whether Lower Court erred or abused its discretion by not 

being in compliance with Reeves v. Fayette, 897 F.3d 154 

(3rd Cir. 2018), when Appellant asserted ineffective 

assistance claims based on Trial and PCRA Counsel’s failure 

to present or discover evidence that was exculpatory in 

nature, to overcome time bar pursuant to Schlup v. Delo, 

513 U.S. 298 (1995)?

III. Whether PCRA Court erred as a matter of law pursuant to 

Rule 907 Notice to Dismiss, by failing to give notice 

pertaining to second PCRA Petition as untimely filed, 

violated Due Process?

IV. Whether PCRA Court committed legal error by failing to 

issue Notice of Intent to Dismiss second PCRA Petition and 

Motion for Updated Discovery Materials, therefore denying 

Appellant procedural due process by not affording him a 

right to file written objections to dismissal?

V. Whether Trial Court erred when holding Trial and PCRA 

Counsels were not ineffective for failing to investigate eight 

(8) eyewitnesses, was irrelevant to prove Appellant’s 

innocence?
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VI. Whether Counsel’s failure to seek suppression of unduly 

suggestive photo identification was irrelevant?

VII. Whether PCRA Court erred when it concluded 

Commonwealth Brady violation claims were irrelevant? 

VIII. Whether PCRA Court erred as a matter of law or its 

conclusion was contrary to 42 Pa.C.S. § 9543.1 as amended, 

when denying Post Conviction DNA testing?

Appellant’s Brief, at 5 (renumbered for ease of review).

Our standard of review is as follows:

When reviewing the denial of a PCRA petition, we must determine 

whether the PCRA court's order is supported by the record and 

free of legal error. Generally, we are bound by a PCRA court's 

credibility determinations. However, with regard to a court's legal 

conclusions, we apply a de novo standard.

Commonwealth v. Johnson, 635 Pa. 665, 139 A.3d 1257, 1272 (2016)

(quotation marks and quotations omitted).

As an initial matter, we note that Appellant filed his second PCRA petition 

on July 18, 2018, while his appeal of this Court’s dismissal of his first PCRA 

petition was still pending in our Supreme Court. These circumstances have 

been addressed before by our prior precedent:

Preliminarily, Pennsylvania law makes clear the trial court has no 

jurisdiction to consider a subsequent PCRA petition while an 

appeal from the denial of the petitioner's prior PCRA petition in 

the same case is still pending on appeal. Commonwealth v. 

Lark, 560 Pa. 487, 493, 746 A.2d 585, 588 (2000). See also

Commonwealth v. Montgomery, 181 A.3d 359, 364 (Pa.Super. 

2018) (en banc ), appeal denied, ––– Pa. ––––, 190 A.3d 1134 

(2018) (reaffirming that Lark precludes consideration of 

subsequent PCRA petition while appeal of prior PCRA petition is 

still pending). A petitioner must choose either to appeal from the 

order denying his prior PCRA petition or to file a new PCRA 

petition; the petitioner cannot do both, i.e., file an appeal and also 

file a PCRA petition, because “prevailing law requires that the 
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subsequent petition must give way to a pending appeal from the 

order denying a prior petition.” Commonwealth v. Zeigler, 148 

A.3d 849, 852 (Pa.Super. 2016). In other words, a petitioner who 

files an appeal from an order denying his prior PCRA petition must 

withdraw the appeal before he can pursue a subsequent PCRA 

petition. Id. If the petitioner pursues the pending appeal, then the 

PCRA court is required under Lark to dismiss any subsequent 

PCRA petitions filed while that appeal is pending. Lark, supra.

Pennsylvania law also states unequivocally that no court has 

jurisdiction to place serial petitions in repose pending the outcome 

of an appeal in the same case. Id. See also Commonwealth v. 

Porter, 613 Pa. 510, 523, 35 A.3d 4, 12 (2012) (stating that 

holding serial petitions in abeyance pending appeal in same case 

perverts PCRA timeliness requirements and invites unwarranted 

delay in resolving cases, as well as strategic litigation abuses).

Commonwealth v. Beatty, 207 A.3d 957, 961 (Pa.Super. 2019).

As noted above, Appellant timely filed his first PCRA petition on 

December 22, 2010. Thereafter, the PCRA court granted appointed counsel’s 

petition to withdraw and issued notice of its intent to dismiss the petition. On 

May 18, 2011, the PCRA court dismissed the petition, and on June 24, 2014, 

this Court affirmed the PCRA court’s order dismissing Appellant’s petition. On 

July 16, 2014, Appellant chose to file a petition for allowance of appeal in the 

Supreme Court.

Thereafter, Appellant also filed a second PCRA petition on July 18, 2014, 

while his appeal related to his first PCRA petition was pending in the Supreme 

Court. Pursuant to Lark, Appellant was not permitted to pursue both an 

appeal of the denial of his first PCRA petition and the filing of a new PCRA 

petition in the lower court. As such, the PCRA court should have dismissed 

the July 18, 2014 petition that was filed during the pendency of his appeal to 
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the Supreme Court; the lower court had no jurisdiction to hold this petition in 

abeyance pending the outcome of the appeal. See Lark, supra.

To the extent that Appellant suggests this Court should review the denial 

of his “amended” PCRA petition filed on December 27, 2016, we agree with 

the PCRA court’s finding that this petition was untimely filed. It is wellestablished that “the PCRA's timeliness requirements are jurisdictional in 

nature and must be strictly construed; courts may not address the merits of 

the issues raised in a petition if it is not timely filed.” Commonwealth v. 

Leggett, 16 A.3d 1144, 1145 (Pa.Super. 2011) (citations omitted). 

Generally, a PCRA petition “including a second or subsequent petition, shall 

be filed within one year of the date the judgment of sentence becomes final.” 

42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence becomes final at the 

conclusion of direct review or the expiration of the time for seeking the review. 

42 Pa.C.S.A. § 9545(b)(3). 

However, Pennsylvania courts may consider an untimely petition if the 

appellant can explicitly plead and prove one of the three exceptions 

enumerated in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii), which include: (1) the 

petitioner’s inability to raise a claim as a result of governmental interference; 

(2) the discovery of previously unknown facts or evidence that would have 

supported a claim; or (3) a newly-recognized constitutional right that has been 

held to apply retroactively by the Supreme Court of the United States or the 

Supreme Court of Pennsylvania. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). 
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As noted above, Appellant entered a nolo contendere plea on February 

18, 2009, this Court affirmed the judgment of sentence on March 3, 2010, 

and the Supreme Court denied Appellant’s petition for allowance of appeal on 

September 16, 2010. Appellant did not seek further review in the Supreme 

Court of the United States. As a result, Appellant’s judgment of sentence 

became final on December 15, 2010, after the expiration of the ninety-day 

period in which he was allowed to seek review in the U.S. Supreme Court. 

See U.S. Sup.Ct. R. 13. As such, Appellant needed to file his PCRA petition 

by December 15, 2011. Thus, Appellant’s petition filed on December 27, 2016 

is facially untimely. 

Moreover, Appellant failed to plead and prove that any of the exceptions 

set forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) applies in this case. While 

Appellant formulates multiple arguments to suggest that he is entitled to a 

remand based on “exculpatory” evidence, his assertions are completely 

undeveloped as he does not identify this alleged evidence, provide any detail 

as to when such evidence was discovered, or explain why such information 

could not have been obtained earlier. As such, Appellant has not shown that 

he is entitled relief from the PCRA timeliness requirements.

We note that Appellant also claims the PCRA court did not give proper

notice of its intent to dismiss his petition without a hearing pursuant to Rule

907. While Appellant acknowledges that the PCRA court did file notice of its 

intent to dismiss his petition and outlined the procedure for Appellant to 
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respond to the notice, Appellant claims he was denied due process as the 

notice did not state Appellant’s petition was being dismissed as untimely filed. 

Regardless of the merits of Appellant’s challenge to the adequacy of the 

PCRA court’s notice pursuant to Rule 907, we need not review this claim 

further as Appellant has failed to plead and prove the applicability of one of 

the timeliness exceptions as forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). 

Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super. 2013) (quoting 

Commonwealth v. Pursell, 561 Pa. 214, 749 A.2d 911, 917 n. 7 (2000) 

(finding that the absence of Rule 907 notice does not automatically warrant 

reversal, when the PCRA petition is facially untimely and one of the timeliness 

exceptions does not apply)). Accordingly, we conclude that the PCRA court 

did not err in dismissing Appellant’s petition.

Appellant also claims that the PCRA court erred in denying his motion 

pursuant to Section 9543.1 of the PCRA statute, which allows petitioners to 

seek forensic DNA testing. We may proceed to review this claim as “the 

PCRA's one-year time bar does not apply to motions for the performance of 

forensic DNA testing under Section 9543.1.” Commonwealth v. Walsh, 125 

A.3d 1248, 1252 (Pa.Super. 2015) (quoting Commonwealth v. Brooks, 875 

A.2d 1141, 1146 (Pa.Super. 2005) (emphasis in original)).

Motions for post-conviction DNA tests, while considered post-conviction 

petitions under the PCRA, are “clearly separate and distinct from claims 

pursuant to other sections of the PCRA.” Commonwealth v. Perry, 959 A.2d 

932, 938 (Pa.Super. 2008) (quoting Commonwealth v. Williams, 909 A.2d 
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383, 384 n. 1 (Pa.Super. 2006)). A successful request for post-conviction 

DNA testing pursuant to Section 9543.1 “allows ... a convicted individual to 

first obtain DNA testing which could then be used within a PCRA petition to 

establish new facts in order to satisfy the requirements of an exception under 

42 Pa.C.S.A. § 9545(b)(2).” Commonwealth v. Gacobano, 65 A.3d 416, 

419 (Pa.Super. 2013).

To obtain post-conviction DNA testing under Section 9543.1, an 

individual must 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 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[.]

42 Pa.C.S.A. § 9543.1(c)(3)(i)-(ii)(A).2

Moreover,

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 applicant's counsel 

sought funds from the court to pay for the testing because his 

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2 We note that our Legislature amended Section 9543.1 on October 24, 2018. 

As the amended language did not become effective until December 23, 2018, 

we will review Appellant’s challenge to the PCRA court’s November 30, 2018 

ruling pursuant to the prior version of the statute.
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client was indigent and the court refused the request despite the 

client's indigency.

42 Pa.C.S. § 9543.1(a)(2). In other words, a petitioner “does not meet the 

requirements of § 9543.1(a)(2) [if] the technology existed at the time of his 

trial, the verdict was rendered after January 1, 1995, and the court never 

refused funds for the testing.” Commonwealth v. Williams, 587 Pa. 304, 

310, 899 A.2d 1060, 1063 (2006). 

In his motion, Appellant asked for DNA testing to be performed on pieces 

of evidence recovered by police during their initial investigation of the crime 

scene where two men were murdered on April 16, 2008. The DNA testing that 

Appellant requests in the instant motion was available to Appellant when he 

entered his plea agreement on February 18, 2009 and the court did not refuse 

funds for testing. See 42 Pa.C.S.A. § 9543.1(a)(2); Commonwealth v. B. 

Williams, 35 A.3d 44, 51 (Pa.Super. 2011) (upholding the denial of the 

request for DNA testing as DNA testing was available at the time of the 

appellant’s trial, he was convicted after January 1, 1995, and the trial court 

did not refuse funds for testing); Commonwealth v. Perry, 959 A.2d 932, 

938 (Pa.Super. 2008) (same). As such, the PCRA court properly concluded 

that Appellant had not met the threshold requirements for DNA testing under 

Section 9543.1(a)(2). See Order, 11/30/18, at 13. 

Moreover, Appellant does not provide argument or analysis to challenge 

the PCRA court’s finding that he failed to plead a prima facie case that 

exculpatory evidence would establish his actual innocence as required by 

Section 9543.1(c)(3). Even if we assume that Appellant’s DNA was absent 
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from pieces of evidence obtained from the crime scene, Appellant has made 

no attempt to show how DNA testing would establish his actual innocence. In 

addition to the fact that a witness came forward to testify that Appellant 

admitted to the murders, Appellant confessed to his investigator in a recorded 

phone call from prison that he was present at the scene of the murders; 

Appellant was repeatedly cautioned that this conversation was being recorded. 

As a result, we conclude that the PCRA court did not err in denying Appellant’s 

request for post-conviction DNA testing under Section 9543.1.

For the foregoing reasons, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/19/19