J-S21015-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

HAROLD JOHN MCGURL, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 149 MDA 2023

Appeal from the Orders Entered December 19, 2022 and January 5, 

2023

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

No(s): CP-54-CR-0002107-2016

BEFORE: BOWES, J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY BOWES, J.: FILED JULY 27, 2023

Harold John McGurl, Jr. appeals pro se following the PCRA court’s denial 

of his motion for deoxyribonucleic acid (“DNA”) testing pursuant to 42 Pa.C.S.

§ 9543.1 of the Post Conviction Relief Act (“PCRA”), and dismissal of his PCRA 

petition. We affirm.

This Court previously summarized the facts underlying this case as 

follows:

Appellant attacked the victim, Jordan Adams (the “Victim”), in the 

early morning hours of October 8, 2016. The Victim is the brother 

of Shawn Parker[.] Shawn Parker and Brittany Fenstermacher, 

Appellant’s ex-girlfriend, were dating at the time of the incident.

On the day of the attack, Appellant met Fenstermacher in a public 

park where they shared a six-pack of beer. They then went to a 

bar called the Drunken Monkey. While at the bar, Parker called 

and texted Fenstermacher numerous times. As the evening 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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progressed, Appellant became more and more belligerent and 

obnoxious and announced that he planned to get into a fight with 

Parker. Before leaving the Drunken Monkey, Krystal Semerod, a 

bar patron, gave Appellant, at Appellant’s request, a knife.

After Appellant and Fenstermacher left the Drunken Monkey to 

walk home, Appellant saw the Victim driving the car that Appellant 

had observed Parker and Fenstermacher driving in earlier that 

day. The Victim parked and exited the car not far from where 

Appellant and Fenstermacher were standing. When the Victim 

turned around, he saw Appellant holding a knife above his head. 

Appellant asked the Victim if he was Parker’s brother; the Victim 

answered in the affirmative; and Appellant informed the Victim 

that Appellant was going to “end” the Victim.

Appellant proceeded to attack the Victim with the knife, slashing 

at his head, neck, and face. The Victim fought back and Appellant 

then stabbed him in multiple parts of his body, including his tricep, 

bicep, and shoulder.

When the Victim arrived at the emergency room, he was in 

hemorrhagic shock due to blood loss. The Victim received 

intravenous therapy and blood transfusions and doctors 

performed emergency surgery on him. The Victim survived, but 

continue[d] to have limited mobility in his arm.

Commonwealth v. McGurl, 217 A.3d 418 (Pa.Super. 2019) (nonprecedential decision at 1-3). 

Based upon the foregoing, the Commonwealth charged Appellant with 

one count each of attempted murder and recklessly endangering another 

person, and two counts each of aggravated and simple assault. Appellant 

proceeded to a jury trial, where he testified that he had been acting in selfdefense. The Commonwealth’s evidence included, inter alia, a hat and a knife. 

The Victim identified the hat as the one he was wearing during the attack. 

See N.T. Jury Trial, 4/2-3/18, at 72-73. It had sustained damage to the bill, 

which the Commonwealth argued was consistent with being sliced by a knife. 
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See id. at 136, 138, 167 (describing damage through bill of the hat); id. at

310 (Commonwealth arguing that the hat was damaged by Appellant stabbing

at the Victim’s head). As for the knife, police had recovered it from a storm 

drain at Appellant’s direction following the altercation. Id. at 176, 195-96. 

At trial, Appellant identified it as the knife given to him by Ms. Semerod and

claimed that he accidentally dropped it down the storm drain. Id. at 214, 

230. 

At the conclusion of the trial, the jury found Appellant guilty of all 

charges. The trial court sentenced him to an aggregate term of ten to twenty 

years of incarceration and ordered him to pay restitution. Appellant did not 

file post-sentence motions but did appeal to this Court, challenging the 

sufficiency of the evidence to sustain his conviction for attempted murder. We 

affirmed the judgment of sentence and our Supreme Court denied his petition 

for allowance of appeal. See McGurl, supra, appeal denied, 218 A.3d 382 

(Pa. 2019).

Thereafter, Appellant pro se filed his first PCRA petition, alleging that 

trial counsel was ineffective due to a conflict of interest. The PCRA court 

appointed counsel, who filed a no-merit letter and petition to withdraw. The 

court denied counsel’s petition and held an evidentiary hearing on Appellant’s 

claim. After the hearing, counsel again filed a no-merit letter and request to 

withdraw. Appellant, meanwhile, pro se sought the appointment of new 

counsel. The PCRA court granted counsel’s motion to withdraw and denied 

both Appellant’s petition and his request for new counsel. On appeal to this 
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Court, we affirmed the PCRA court’s order. See Commonwealth v. McGurl, 

277 A.3d 1168 (Pa.Super. 2022) (non-precedential decision).

On June 21, 2022, Appellant pro se filed a second PCRA petition, 

requesting that all evidence be submitted for DNA testing. Specifically, 

Appellant sought to have the hat tested because he alleged for the first time 

that it actually belonged to him, and further sought to have the knife tested 

for fingerprints and DNA.1 After issuing Pa.R.Crim.P. 907 notice, the PCRA 

court dismissed Appellant’s petition. Appellant did not appeal to this Court. 

Instead, on October 24, 2022, Appellant pro se submitted another filing

(“October Motion”), styled as a post-sentence motion for a new trial based 

upon after-discovered evidence. This filing renewed Appellant’s request for

DNA testing of all evidence. Construing the October Motion as a PCRA request 

for DNA testing pursuant to § 9543.1, the PCRA court provided the 

Commonwealth the opportunity to respond and directed that the evidence be 

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1 Throughout the subsequent PCRA pleadings, Appellant has averred that a 

second knife was recovered by Trooper Christopher Michael Rooney and that 

Appellant did not know about the second knife until Trooper Rooney testified 

at trial. See, e.g., Appellant’s brief at unnumbered 2. As such, Appellant’s

request for DNA testing encompasses both knives. However, Appellant’s bald 

averment of the existence of a second knife is belied by the record. Trooper 

Rooney’s testimony detailed his involvement in Appellant’s apprehension and 

recovery of the knife from the storm drain. See N.T. Jury Trial, 4/2-3/18, at 

174-181. At no point did he mention a second knife and, while it is not our 

burden to scour every corner of the record to support Appellant’s 

unsubstantiated claim on his behalf, our thorough review of the certified 

record has revealed no indication of a second knife. Accordingly, our review 

concerns only the knife that Appellant acknowledged possessing during the 

fight and thereafter discarding in a storm drain.
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preserved. See Order, 10/31/22. The Commonwealth did not file a response. 

Ultimately, the PCRA court denied the motion because the request was not 

timely made and because it found there was “no reasonable possibility that 

testing would produce exculpatory evidence that would establish [Appellant’s] 

actual innocence[.]” Order (October Motion), 12/19/22. 

 In the meantime, Appellant pro se filed a document styled as a motion 

for extraordinary relief (“November Petition”). See Rule 704(a) Motion for 

Extraordinary Relief, 11/14/22, at unnumbered 1. The relief sought was 

unclear, but Appellant once again argued that the hat and knife should have 

been subjected to DNA testing and that such testing would prove his 

innocence. Without explicitly challenging the effective assistance of any of his 

attorneys, Appellant claimed that his pre-trial and post-trial requests for the 

items to be tested had been ignored. See id. (stating that he “request[ed]

before trial [and] after trial various times that DNA testing needed to be done” 

and “Attorney Stine [told] defendant that no fingerprints or blood were ever 

found on the knife”).

The PCRA court construed the November Petition as an untimely PCRA 

petition filed more than one year after Appellant’s judgment of sentence 

became final and, accordingly, issued notice of its intent to dismiss on that 

basis. See Order (November Petition), 12/19/22. Appellant filed a response 

assailing the lack of DNA testing, for the first time explicitly claiming that trial 

counsel was ineffective for failing to request DNA testing, and seeking an 

extension of time to amend his request because his mail delivery had been 
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delayed due to his inmate housing status. On January 5, 2023, the PCRA 

court dismissed the November Petition as an untimely PCRA petition.

This appeal followed. In his notice of appeal, Appellant referenced “an 

appeal for extraordinary relief for post-trial DNA testing[.]” Notice of Appeal, 

1/27/23 (cleaned up). He then attached the orders pertaining to both the 

October Motion and the November Petition. The PCRA court ordered Appellant 

to file a Rule 1925(b) statement. After Appellant failed to timely file a concise 

statement, the PCRA court entered an order in lieu of opinion, directing us to 

its December 19, 2022 order disposing of the October Motion. Thereafter, 

Appellant’s concise statement was docketed.

2

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2 Appellant’s concise statement was due on or before February 24, 2023. As 

the statement was docketed on March 31, 2023, it was patently untimely. 

This Court has considered untimely concise statements when the trial court 

nonetheless addressed the issues because the untimely filing of a concise 

statement constitutes per se ineffective assistance of counsel. See 

Commonwealth v. Boniella, 158 A.3d 162, 164 (Pa.Super. 2017) (noting 

that “where the trial court addresses the issues raised in an untimely Rule 

1925(b) statement, we need not remand but may address the issues on their 

merits” (cleaned up)). However, this Court’s rationale for doing so 

“disappears where it is filed by a pro se litigant” because “a pro se litigant 

cannot be ineffective on his or her own behalf.” Id. (cleaned up).

This would normally result in waiver of all of Appellant’s claims. See id. 

However, Appellant’s concise statement was self-dated February 8, 2023. 

Moreover, Appellant appended a note after the affidavit and proof of service 

page, which was self-dated March 25, 2023, indicating that Appellant had 

delivered his concise statement to prison authorities on February 9, 2023, and 

only learned of its non-delivery upon his release from the restrictive housing 

unit on March 25, 2023, and thereafter mailed it again. See Concise 

Statement, 3/31/23, at unnumbered 4. 

(Footnote Continued Next Page)
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This Court issued a rule to show cause order as to why the appeal, which 

did not contain the date of the order appealed from, should not be quashed 

as having been taken from an order not entered on the docket, in violation of

Pa.R.A.P. 301(a)(1). Appellant responded, indicating that he lacked the date 

of the order due to his housing status. This Court discharged the rule and 

referred the issue to this panel. Meanwhile, Appellant filed his brief in this 

Court. 

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“[T]he prisoner mailbox rule provides that a pro se prisoner’s document is 

deemed filed on the date he delivers it to prison authorities for mailing.” 

Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa.Super. 2011) (citation 

omitted). See also Pa.R.A.P. 121(f) (“A pro se filing submitted by a person 

incarcerated in a correctional facility is deemed filed as of the date of the 

prison postmark or the date the filing was delivered to the prison authorities 

for purposes of mailing as documented by a properly executed prisoner cash 

slip or other reasonably verifiable evidence.”).

Our Supreme Court has provided a non-exhaustive list of the 

types of evidence a pro se prisoner may present to prove that he 

mailed a notice of appeal within the deadline. Our Supreme Court 

has also clearly stated that we are inclined to accept any 

reasonably verifiable evidence of the date that the prisoner 

deposits the appeal with the prison authorities. In this vein, we 

may regard a self-dated notice of appeal as plausible evidence of 

mailing . . ., particularly where the opposing party does not 

contest such a date.

Commonwealth v. Powell, 290 A.3d 751, 756 n.9 (Pa.Super. 2023) 

(cleaned up). 

Here, Appellant self-dated the concise statement February 8, 2023, and the 

Commonwealth has offered no objection to this averment. See

Commonwealth’s brief at 6 (stating, incorrectly, that the PCRA court did not 

order Appellant to file a Rule 1925(b) statement and that none was filed). 

Accordingly, we regard the hand-written date and appended note as plausible 

evidence of mailing and will consider the concise statement timely under the 

prisoner mailbox rule.
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Preliminarily, this Court is unable to ascertain from which order 

Appellant is actually appealing. Not one of Appellant’s appellate filings 

provides illumination on this query. His brief is handwritten and unnumbered, 

contains various exhibits throughout, and is not separated into different 

sections. From what we can glean from his brief, Appellant is seeking to 

challenge the PCRA court’s denial of his request for DNA testing, as well as 

trial counsel’s effectiveness in failing to pursue DNA testing before or after 

trial.

3

 Based upon the first argument, the Commonwealth and PCRA court 

deduced that Appellant purported to appeal solely from the December 19, 

2022 order denying his October Motion. See Commonwealth’s brief at 5 n.6; 

Order in Lieu of Opinion, 3/21/23, at unnumbered 1 n.1. 

We agree that the lion’s share of Appellant’s arguments on appeal

concern the PCRA court’s decision to deny his request for DNA testing, thereby 

implicating the court’s denial of his October Motion. However, Appellant also 

asserts that counsel was ineffective for failing to request DNA testing, which 

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3 Appellant also argues that the Commonwealth failed to adduce sufficient 

evidence of Appellant’s specific intent to kill to sustain his attempted murder 

conviction. See Appellant’s brief at unnumbered 8-10. As acknowledged by 

Appellant’s citation to his brief on direct appeal, this Court already heard and

rejected that precise argument. Commonwealth v. McGurl, 217 A.3d 418 

(Pa.Super. 2019) (non-precedential decision at 4-6) (“As demonstrated by his 

actions, which occurred after he announced that he intended ‘to end’ the 

Victim, Appellant took substantial steps toward the commission of [firstdegree murder], which resulted in the Victim’s near-fatal blood loss and 

permanent injury.”). Thus, it cannot served as a basis for PCRA relief. See

42 Pa.C.S. § 9543(a)(3) (providing that, to be eligible for relief, a PCRA 

petitioner must establish that the claim was not previously litigated or 

waived).
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he raised in the November Petition proceedings. In this way, his brief also 

implicates the PCRA court’s denial of the November Petition. Stated plainly,

due to Appellant’s reiterative post-conviction filings, vague notice of appeal,

and confusing brief, we simply cannot determine with any certainty which 

order Appellant is appealing. What we can determine, however, is that 

regardless from which order Appellant purported to appeal, he is not entitled 

to relief.4

As with any denial of PCRA relief, “our standard of review calls for us to 

determine whether the ruling of the PCRA court is supported by the record 

and free of legal error.” Commonwealth v. Gacobano, 65 A.3d 416, 419 

(Pa.Super. 2013) (cleaned up). “When reviewing an order denying a motion 

for post-conviction DNA testing, this Court determines whether the movant 

satisfied the statutory requirements listed in [§] 9543.1. We can affirm the 

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4 With respect to the timeliness of Appellant’s appeal, his notice was clearly 

filed within thirty days of the order denying his November Petition and was 

therefore timely. However, the notice was filed more than thirty days after 

the order denying his October Motion. Even applying Appellant’s self-date

pursuant to the prisoner mailbox rule, the notice of appeal would still be

deemed late as it was dated thirty-one days after the filing of the order 

denying the October Motion. Nonetheless, because the PCRA court’s failure 

to advise Appellant of his appellate rights constituted a breakdown in the court 

system, we decline to quash. See, e.g. Commonwealth v. Stansbury, 219 

A.3d 157, 160 (Pa.Super. 2019) (collecting cases); see also Pa.R.Crim.P. 

900(A) (“The rules in Chapter 9 apply to . . . cases under the Post Conviction 

Relief Act, 42 Pa.C.S. §§ 9541-9546[.]”); Pa.R.Crim.P. 907(4) (“When the 

petition is dismissed without a hearing, the judge promptly shall issue an order 

to that effect and shall advise the defendant by certified mail, return receipt 

requested, of the right to appeal from the final order disposing of the petition

and of the time limits within which the appeal must be filed. The order shall 

be filed and served as provided in Rule 114.”). 
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court’s decision if there is any basis to support it, even if we rely on different 

grounds to affirm.” Commonwealth v. Walsh, 125 A.3d 1248, 1253 

(Pa.Super. 2015) (cleaned up).

Beginning with the PCRA court’s denial of the October Motion, we further 

set forth the following legal principles. Post-conviction requests for DNA 

testing are governed by § 9543.1, which provides in pertinent part as follows:

(a) Motion.--

(1) An individual convicted of a criminal offense in a court 

of this Commonwealth may apply by making a written 

motion to the sentencing court at any time for the 

performance of forensic DNA testing on specific evidence 

that is related to the investigation or prosecution that 

resulted in the judgment of conviction.

(2) The evidence may have been discovered either prior to 

or after the applicant’s conviction. The evidence shall be 

available for testing as of the date of the motion. 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 

evidence was subject to the testing, but newer technology 

could provide substantially more accurate and substantially 

probative results, or the applicant’s counsel sought funds 

from the court to pay for the testing because his client was 

indigent and the court refused the request despite the 

client’s indigency.

(3) A request for DNA testing under this section shall be by 

written petition and shall be filed with the clerk of courts of 

the judicial district where the sentence is imposed.

(4) DNA testing may be sought at any time if the motion is 

made in a timely manner and for the purpose of 
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demonstrating the applicant’s actual innocence and not to 

delay the execution of sentence or administration of justice.

(5) Notwithstanding any other provision of law, a plea of 

guilty to a crime of violence, as defined in section 9714(g) 

(relating to sentences for second and subsequent offenses), 

or a confession given by an applicant concerning the offense 

for which the applicant was convicted, shall not prohibit the 

applicant from asserting actual innocence under subsection 

(c)(2) or the court from making a determination and 

ordering DNA testing under subsection (d)(2).

(6) The motion shall explain how, after review of the record 

of the applicant’s trial, there is a reasonable possibility if the 

applicant is under State supervision, or there is a reasonable 

probability if the applicant is not under State supervision, or 

after review of the record of the applicant’s guilty plea there 

is a reasonable probability, that the testing would produce 

exculpatory evidence that would establish:

(i) the applicant’s actual innocence of the offense for 

which the applicant was convicted;

. . . .

(b) Notice to the Commonwealth.--

(1) Upon receipt of a motion under subsection (a), the court 

shall notify the Commonwealth and shall afford the 

Commonwealth an opportunity to respond to the motion.

(2) Upon receipt of a motion under subsection (a) or notice 

of the motion, as applicable, the Commonwealth and the 

court shall take the steps reasonably necessary to ensure 

that any remaining biological material in the possession of 

the Commonwealth or the court is preserved pending the 

completion of the proceedings under this section.

(c) Requirements.--In any motion under subsection (a), under 

penalty of perjury, the applicant shall:

(1)(i) specify the evidence to be tested;
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(ii) state that the applicant consents to provide 

samples of bodily fluid for use in the DNA testing; and

(iii) acknowledge that the applicant understands that, 

if the motion is granted, any data obtained from any 

DNA samples or test results may be entered into law 

enforcement databases, may be used in the 

investigation of other crimes and may be used as 

evidence against the applicant in other cases.

(2)(i) in a sworn statement subject to the penalties under 

18 Pa.C.S. §§ 4902 (relating to perjury) and 4903 (relating 

to false swearing), assert the applicant’s actual innocence 

of the offense for which the applicant was convicted and that 

the applicant seeks DNA testing for the purpose of 

demonstrating the applicant’s actual innocence; . . . .

(3) 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 the 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;

. . . . 

(d) Order.--

(1) Except as provided in paragraph (2), the court shall 

order the testing requested in a motion under subsection (a) 

under reasonable conditions designed to preserve the 

integrity of the evidence and the testing process upon a 

determination, after review of the record of the applicant’s 

trial, that the:

(i) requirements of subsection (c) have been met;
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(ii) evidence to be tested has been subject to a chain 

of custody sufficient to establish that it has not been 

altered in any material respect; and

(iii) motion is made in a timely manner and for the 

purpose of demonstrating the applicant’s actual 

innocence and not to delay the execution of sentence 

or administration of justice.

(2) The court shall not order the testing requested in a 

motion under subsection (a) if, after review of the record of 

the applicant’s trial, the court determines that there is no 

reasonable possibility for an applicant under State 

supervision, or there is no reasonable probability for an 

applicant not under State supervision, or after review of the 

record of the applicant’s guilty plea, the court determines 

that there is no reasonable probability, that the testing 

would produce exculpatory evidence that:

(i) would establish the applicant’s actual innocence of 

the offense for which the applicant was convicted;

. . . . 

(3) Any DNA testing order under this section shall constitute 

a final order. An applicant or the Commonwealth may 

appeal a decision denying or granting a DNA testing order 

in accordance with the Pennsylvania Rules of Appellate 

Procedure.

(4) Any decision granting or denying a DNA testing order 

shall include an explanation by the court of how the testing 

requested in a motion under subsection (a) has met or fails 

to have met the requirements under paragraphs (1), (2) and 

(3).

. . . .

42 Pa.C.S. § 9543.1.

The PCRA court explained its reasons for denying the October Motion as 

follows:
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The hat and knife were not subject to DNA testing. 

[Appellant’s] counsel did not seek testing prior to or at the time 

of trial and never sought funds from the [c]ourt to pay for testing. 

The current request for DNA testing is not timely, and the motion 

does not explain how, after review of the record of the trial, there 

is a reasonable possibility that testing would produce exculpatory 

evidence that would establish [Appellant’s] actual innocence. 

Notably, contrary to his current allegations, [Appellant] 

acknowledged at trial that he had possessed the knife. [Appellant] 

claimed that he had used it against the Victim while acting in selfdefense. Similarly, at trial the Victim identified that hat as having 

been worn by him. The issues at trial did not involve questions 

about who possessed the hat and knife, or the identity of the 

assailant; rather, they were whether the [Appellant] attacked the 

Victim and had acted without justification in doing so.

Additionally, [Appellant] has not stated in his motion that 

he consents to provide samples of bodily fluids for use in DNA 

testing, acknowledges that he understands that any data obtained 

from the DNA samples or test results may be entered into law 

enforcement databases, may be used in the investigation of other 

crimes, and may be used as evidence against him in other cases.

Finally, no prima facie case has been alleged that the 

identity of or participation in the crime by [Appellant] was at issue 

at trial and that DNA testing of the hat and knife, assuming 

exculpatory results, would establish [Appellant’s] actual 

innocence.

Order (October Motion), 12/19/2022, at 2 (cleaned up).

Upon review of the certified record, we agree with the PCRA court that 

Appellant’s October Motion did not satisfy § 9543.1’s requirements. First, the 

petition lacked Appellant’s consent to provide samples for testing or an 

acknowledgement regarding the use of any results. Second, we discern no 

abuse of discretion in the PCRA court’s finding that any exculpatory DNA 

evidence pertaining to the hat and knife would not establish Appellant’s actual 

innocence because neither possession of those items nor Appellant’s identity 
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was in dispute at trial. Finally, Appellant’s request for DNA testing was not 

timely where the hat and knife were discovered and available prior to trial, 

DNA testing technology existed at the time of Appellant’s trial, the jury 

reached its verdict after January 1, 1995, and the trial court did not refuse a 

request for funds for DNA testing. See 42 Pa.C.S. § 9543.1(a)(2). Detecting

no error in the PCRA court’s conclusions, we affirm the order denying 

Appellant’s October Motion for DNA testing. See Commonwealth v. Walsh, 

125 A.3d 1248, 1258 (Pa.Super. 2015) (concluding that defendant “failed to 

satisfy the threshold requirements to obtain DNA testing pursuant to 

[§] 9543.1(a)(2); he did not present a prima facie case of actual innocence 

pursuant to [§] 9543.1(c)(3); and he failed to make his request for DNA 

testing in a timely manner pursuant to [§] 9543.1(d)(1)(iii)”).

Next, we address the PCRA court’s dismissal of Appellant’s November 

Petition and his claim that trial counsel was ineffective for failing to request 

DNA testing. Instead of considering the merits of any arguments raised in the 

November Petition or the response to the PCRA court’s notice of intent to 

dismiss, the PCRA court dismissed the November Petition as untimely. See

Order, 1/5/23. 

It is axiomatic that neither this Court nor the PCRA court has jurisdiction 

to consider an untimely PCRA petition. See Commonwealth v. Ballance,

203 A.3d 1027, 1030-31 (Pa.Super. 2019). All PCRA petitions, including 

second or subsequent petitions, must be filed within one year of the date that 
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the underlying judgment of sentence becomes final. See 42 Pa.C.S. 

§ 9545(b)(1). The PCRA statute provides that “a judgment becomes final at 

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

the review.” 42 Pa.C.S. § 9545(b)(3). 

Instantly, Appellant’s judgment of sentence became final in 2019. The 

November Petition, filed in 2022, was patently untimely. Therefore, Appellant 

had the burden to plead and prove one of the enumerated exceptions to the 

PCRA’s time-bar before the PCRA court could consider the merits of any of his 

claims. In this respect, the PCRA statute provides as follows:

Any petition under this subchapter, including a second or 

subsequent petition, shall be filed within one year of the date the 

judgment becomes final, unless the petition alleges and the 

petitioner proves that:

(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). A petitioner invoking one of these exceptions must 

file a petition “within one year of the date the claim could have been 

presented.” 42 Pa.C.S. § 9545(b)(2). 
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In the case sub judice, Appellant failed to invoke any of the timeliness 

exceptions in his November Petition. Moreover, the PCRA court found as 

follows in its notice of intent to dismiss: 

[N]o facts are alleged by [Appellant] to support a finding that an 

exception may exist to the requirement that a post-conviction 

collateral relief motion be filed within one year of the date the 

judgment of sentence becomes final.

. . . . 

[Appellant] fails to identify any facts upon which his current 

claims are predicated which were unknown to him or could not 

have been ascertained by the exercise of due diligence within the 

requisite period to seek post-conviction collateral relief. 

Moreover, the DNA testing and alleged failure to identify the 

possessor of the knife and hat have been issues previously raised 

and addressed.

Order (November Petition), 12/19/22, at 1-2. 

Since Appellant failed to plead and prove an exception to the PCRA’s 

time-bar, the PCRA court did not err in dismissing this petition as untimely. 

See Walsh, supra at 1252 (declining to review claim that trial counsel was 

ineffective for failing to request DNA testing as part of post-conviction motion 

for DNA testing and noting that petitioners must raise such claims in a PCRA 

petition that is either timely filed or satisfies one of the timeliness exceptions).

In sum, the PCRA court did not err in denying the October Motion or

dismissing the November Petition, and Appellant is not entitled to relief in this 

collateral appeal.

Orders affirmed.

Judge Pellegrini joins this Memorandum.
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Judge Nichols concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 07/27/2023