J-S22011-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MARCUS LEE GRAHAM,

Appellant No. 1583 MDA 2016

Appeal from the PCRA Order September 1, 2016

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0003377-2005, CP-06-CR-0003378-

2005

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

MEMORANDUM BY SHOGAN, J.: FILED MAY 22, 2017

Appellant, Marcus Lee Graham, appeals from the order denying his 

second petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 

Pa.C.S. §§ 9541–9546. We affirm.

A prior panel of this Court summarized the facts and initial procedural 

history as follows:

Appellant pled guilty to first-degree murder, robbery, 

conspiracy to commit robbery, and related charges of kidnapping 

and burglary[1]stemming from an incident that occurred over a 

two-day period commencing March 3, 2005. He and his codefendants, Luis Fargas and Michael Hall, abducted Jonathan 

Yocum and stripped, bound, and threatened him until he 

____________________________________________

*

 Retired Senior Judge assigned to the Superior Court.

1

 18 Pa.C.S. §§ 2502(a), 3701, 903, 2901, and 3502, respectively.
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provided the PIN number to his ATM card. Appellant continued to 

hold Mr. Yocum prisoner while Fargas and Hall took the victim’s 

Jeep and withdrew $500 from the victim’s account at a 

convenience store ATM. The next day, the three men held Mr. 

Yocum at gunpoint as they entered his home and stole his 

checkbook, a PlayStation, and several large jugs of change. 

They forced Mr. Yocum to fill out a withdrawal slip for $2,000, 

drove him to the bank where he secured the cash, and then took 

the money from the victim. The three co-conspirators continued 

to hold Mr. Yocum while they had breakfast and shopped, and 

later, forced him to make another withdrawal from a bank drivethrough using a personal check.

Appellant decided that Mr. Yocum had to be killed. He and 

his coconspirators purchased plastic wrap and duct tape. 

Appellant dropped off Fargas near his home after paying him 

$200 for a gun and warning him not to tell anyone about the 

events. Appellant and Hall wrapped Mr. Yocum’s head in 

multiple layers of plastic wrap and his body in layers of duct 

tape. Then, Appellant fatally shot Mr. Yocum in the head, 

wrapped his body in a green blanket, and left it in the back seat 

of his vehicle.

Appellant’s co-conspirator Hall was sentenced to life in 

prison; Fargas was sentenced to twelve to twenty years 

imprisonment. Appellant was charged with first-degree murder 

and the Commonwealth notified him that it intended to seek the 

death penalty. Appellant pled guilty to all charges and received 

an aggregate sentence of life imprisonment plus forty to eighty 

years incarceration.

Appellant filed a post-sentence motion challenging his 

sentence as excessive, and subsequently sought to withdraw his 

guilty plea alleging that his counsel coerced it. Trial counsel, 

John Elder and Michael Dautrich, were permitted to withdraw 

and new counsel was appointed. After a hearing on Appellant’s 

petitions, the trial court denied relief. Appellant timely appealed 

asserting the same issues. Appellate counsel Jill Scheidt filed an 

Anders[2] brief and sought leave to withdraw. This Court 

affirmed judgment of sentence on December 2, 2009, and 

____________________________________________

2

 Anders v. California, 386 U.S. 738 (1967).
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granted counsel’s motion to withdraw. Commonwealth v. 

Graham, 990 A.2d 44[, 631 and 632 MDA 2008] (Pa. Super. 

[filed December 2,] 2009) [(unpublished memorandum)]. 

Appellant’s petition seeking an extension of time to file a petition 

for allocatur was denied on January 27, 2010.

Appellant filed [a] pro se PCRA petition on November 1, 

2010, and the trial court appointed counsel. Counsel filed a nomerit letter pursuant to Commonwealth v. Turner, 544 A.2d 

927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 

(Pa. Super. 1988) (en banc), and requested leave to withdraw as 

counsel. Appellant filed a response. A hearing was held and 

Appellant retained new counsel, who filed an amended PCRA 

petition with the court’s permission. Following an evidentiary 

hearing on October 23, 2013, the PCRA court denied relief.

Commonwealth v. Graham, 108 A.3d 127, 619 and 620 MDA 2014 (Pa. 

Super. filed October 31, 2014) (unpublished memorandum at 2–4). This 

Court affirmed the denial of PCRA relief, id., and our Supreme Court denied 

Appellant’s petition for allowance of appeal. Commonwealth v. Graham, 

112 A.3d 650 (Pa. filed March 10, 2015).

Appellant, pro se, filed the instant PCRA Petition, his second, on May 

18, 2015, followed by an Amended PCRA Petition (“Amended Petition”) on 

August 24, 2015. On June 22, 2016, the PCRA court entered its notice of 

intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 

907. Appellant filed a response on July 12, 2016. The court dismissed the 

PCRA petition on August 31, 2016. Appellant filed a timely notice of appeal 

to this Court. Appellant filed a Pa.R.A.P. 1925(b) statement; the PCRA court 

filed a Rule 1925(a) opinion appending its March 13, 2014 opinion denying 

Appellant’s first PCRA opinion, stating it “fully address[ed] the issues raised 
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in Appellant’s [present] concise statement.” PCRA Court Opinion, 12/13/16, 

at 4.

Appellant presents the following issues in his pro se appellate brief:

1. DID THE PCRA COURT ERROR BY FINDING THAT PCRA 

COUNSEL WAS NOT INEFFECTIVE PURSUANT TO Pa.R.Crim.P. 

904(F)(2) FOR FAILING TO ARGUE, AMEND, DEVELOP AND 

PRESERVE ON INITIAL COLLATERAL REVIEW PETITIONER’S 

SIXTH AMENDMENT OF THE U.S. CONSTITUTION RIGHT TO 

EFFECTIVE COUNSEL AND FOURTEENTH AMENDMENT OF THE 

U.S. CONSTITUTION RIGHT TO DUE PROCESS WAS VIOLATED 

WHEN PLEA COUNSEL(S) USED COERCION AND AIDED IN 

KEEPING AND FARTHER MAKING APPELLANT INCOMPETENT AND 

ABSENT OF REQUEST TRIAL COURT FAILED TO CONDUCT A 

COMPETENCY HEARING BEFORE ALLOWING HIM TO PLEAD 

GUILTY.

2. DID THE PCRA COURT ERROR BY FINDING THAT PCRA 

COUNSEL WAS NOT INEFFECTIVE PURSUANT TO Pa.R.Crim.P. 

904(F)(2) FOR FAILING TO ARGUE, AMEND, DEVELOP AND 

PRESERVE ON INITIAL COLLATERAL REVIEW THE FULL FACTUAL 

BASIS OF APPELLANT’S CLAIM PLEA COUNSEL WAS 

INEFFECTIVE UNDER THE SIXTH AMENDMENT OF THE U.S. 

CONSTITUTION FOR ADVISING PETITIONER TO PLEAD GUILTY 

WHEN COUNSEL FAILED TO INVESTIGATE AND INTERVIEW 

ALIBI WITNESSES; FAILED TO INVESTIGATE AND SUBPOENA 

INCONTROVERTIBLE PHYSICAL FACT(S) IN THE FORM OF 

CELLULAR AND HOME TELEPHONE RECORD(S) THAT 

CORROBORATE WITH INCONTROVERTIBLE PHYSICAL FACT(S) 

IN THE FORM OF CHAIN OF EVENT(S) IN THE CRIME(S) 

CORROBORATING WITH PETITIONER’S ALIBI WITNESSES 

STATEMENT(S); AND FAILED TO TIMELY NOTICE ALIBI 

DEFENSE.

3. DID THE PCRA COURT VIOLATE APPELLANT’S RIGHTS UNDER 

THE SIXTH AND FOURTEENTH AMENDMENTS BY FINDING THAT 

PCRA COUNSEL WAS NOT INEFFECTIVE PURSUANT TO 

Pa.R.Crim.P. 904(F)(2) FOR FAILING TO DEVELOP PREJUDICE 

DURING INITIAL COLLATERAL PROCEEDING CONCERNING PLEA 

COUNSEL BEING INEFFECTIVE UNDER THE SIXTH AMENDMENT 

OF THE U.S. CONSTITUTION FOR ADVISING PETITIONER AS TO

THE COMMONWEALTH’S EXPERT OPINION AND FAILING TO 
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MOVE TO SUPPRESS AN ALLEGED INCRIMINATING LETTER 

WHICH APPELLANT AVERRED HAD BEEN TAMPERED WITH 

AND/OR FORGED BY CO-DEFENDANT LUIS FARGAS.

4. DID THE PCRA COURT ERROR BY FINDING THAT PCRA 

COUNSEL WAS NOT INEFFECTIVE PURSUANT TO Pa.R.Crim.P. 

904(F)(2) FOR FAILING TO DISCOVER, RAISE, AMEND AND 

PRESERVE THE FULL FACTUAL BASIS OF APPELLANT’S CLAIM 

PLEA COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE UNDER 

THE SIXTH AMENDMENT OF THE U.S. CONSTITUTION AND 

ARTICLE 9, SECTION AND ARTICLE 5, SECTION 9 OF THE 

PENNSYLVANIA CONSTITUTION IN THAT COUNSEL FAILED TO 

EXPLAIN OR REQUIRE THE COURT TO EXPLAIN THE ELEMENTS 

OF EACH OFFENSE SO THAT APPELLANT COULD MAKE A 

KNOWING AND INTELLIGENT DECISION WHETHER TO PLEAD 

GUILTY.

5. DID THE PCRA COURT ERROR BY FINDING THAT PCRA 

COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO RAISE ON 

INITIAL COLLATERAL REVIEW THE LEGAL AND/OR FACTUAL 

BASIS OF APPELLANT’S CLAIM PLEA COUNSEL WAS 

INEFFECTIVE UNDER THE SIXTH AMENDMENT OF THE U.S. 

CONSTITUTION FOR ADVISING APPELLANT TO PLEAD GUILTY 

WHEN SAID ADVICE WAS OBJECTIONABY UNREASONABLE DUE 

TO COUNSEL’S LACK OF INVESTIGATION.

6. DID THE PCRA COURT ERROR BY FINDING THAT PCRA 

COUNSEL WAS NOT INEFFECTIVE PURSUANT TO Pa.R.Crim.P. 

904(F)(2) FOR ERROROUSLY ADVISING APPELLANT HE COULD 

NOT RAISE CLAIM PLEA COUNSEL(S) WERE INEFFECTIVE UNDER 

THE SIXTH AMENDMENT OF THE U.S. CONSTITUTION FOR 

COERCING APPELLANT TO PLEAD GUILTY BASED ON HIS 

MOTHER WANTING HIM TO PLEAD GUILTY.

7. DID THE PCRA COURT ERROR BY FINDING THAT PCRA 

COUNSEL WAS NOT INEFFECTIVE PURSUANT TO Pa.R.Crim.P. 

904(F)(2) FOR FAILING TO AMEND INITIAL COLLATERAL 

REVIEW PETITION THAT PROSECUTION COMMITTED BRADY 

VIOLATION AND VIOLATED APPELLANT’S FOURTEENTH 

AMENDMENT OF THE U.S. CONSTITUTION RIGHT TO DUE 

PROCESS WHEN THE PROSECUTION SUPPRESSES 

EXCULPATORY EVIDENCE OF PRIOR COERCION AND CORRUPT 

POLICE TACTIC(S) USED BY C.I. ANGEL CABRERA ON THE 
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ORDERS OF FORMER D.A. MARK C. BLADWIN IN ORDER TO GET 

CONVICTIONS BEFORE ALLOWING HIM TO PLEAD GUILTY.

8. DID THE PCRA COURT ERROR BY FINDING THAT PCRA 

COUNSEL WAS NOT INEFFECTIVE PURSUANT TO Pa.R.Crim.P. 

904(F)(2) FOR FAILING TO RAISE ON INITIAL COLLATERAL 

REVIEW THE FACTUAL BASIS OF APPELLANT'S CLAIM BEING 

ENTITLED TO RELIEF PURSUANT TO MILLER V. ALABAMA, THE 

EIGHTH AND FOURTEENTH AMENDMENT OF THE U.S. 

CONSTITUTION.

Appellant’s Brief at 3–5 (verbatim).

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 must address whether this appeal is properly before us. 

The PCRA court addressed the timeliness of Appellant’s PCRA petition in its 

order and notice of intent to dismiss pursuant to Pa.R.Crim.P. 907. Order, 

6/22/16. However, it curiously failed to address the timeliness of the 

petition when it filed its Pa.R.A.P. 1925(a) opinion. 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). 

“Whether [a petitioner] has carried his burden is a threshold inquiry prior to 
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considering the merits of any claim.” Commonwealth v. Edmiston, 65

A.3d 339, 346 (Pa. 2013). Moreover, 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).

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). A judgment of 

sentence “becomes final at the conclusion of direct review, including 

discretionary review in the Supreme Court of the United States and the 

Supreme Court of Pennsylvania, or at the expiration of time for seeking the 

review.” 42 Pa.C.S. § 9545(b)(3).

As noted previously, this Court affirmed the judgment of sentence on 

December 2, 2009. Appellant did not file a petition for allowance of appeal 

to our Supreme Court.3 Appellant’s judgment of sentence became final on 

January 4, 2010, when the time for filing a petition for allowance of appeal 

____________________________________________

3

 Appellant’s filing of a petition for extension of time to file a petition for 

allowance of appeal did not extend the finality computation for his judgment 

of sentence. As we noted in our prior decision affirming the denial of 

Appellant’s first petition for PCRA relief, Appellant merely filed a petition 

seeking an extension of time to file such petition. Graham, 108 A.3d 127 

(unpublished memorandum at 3). The actual filing of a petition for 

allowance of appeal is the pertinent document for our purposes, and the 

record reflects that one was never filed.
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with the Pennsylvania Supreme Court expired.4 Therefore, Appellant had to 

file the current PCRA petition by January 4, 2011, in order for it to be timely. 

42 Pa.C.S. § 9545(b)(3). The instant petition, filed May 18, 2015, is facially 

untimely.

An untimely petition may be received when the petition alleges and 

the petitioner proves that any of the three limited exceptions to the time for 

filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii), is 

met.5 In order to be entitled to the exceptions to the PCRA’s one-year filing 

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4

 The thirty-day period for filing a petition of allowance of appeal to the 

Pennsylvania Supreme Court ended on Friday, January 1, 2010, which was 

New Year’s Day, a legal holiday. Thus, Appellant had until Monday, January 

4, 2010, to timely file his petition. See 1 Pa.C.S. § 1908 (whenever the last 

day of any time period referred to in a statute falls on a Saturday, Sunday, 

or legal holiday, we omit those days from the computation).

5

 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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deadline, “the petitioner must plead and prove specific facts that 

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

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

Super. 2001). 

Appellant has not cogently asserted applicability of any of the 

exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii) in his brief to 

this Court. We glean two implied bases, however, from Appellant’s May 18, 

2015 PCRA Petition and Amended Petition. Appellant maintains that he 

uncovered a new violation of the Commonwealth’s due process obligation to 

disclose exculpatory evidence under Brady v. Maryland, 373 U.S. 83 

(1963), and its progeny, a fact allegedly unknown to Appellant that could 

not have been discovered through due diligence. Amended Petition, 

8/24/15, at 89–91. As noted by the PCRA court, Appellant contends the 

filing of the Brady claim resulted from the ineffective assistance of PCRA 

counsel. Order and Notice of Intent to Dismiss, 6/22/16, at 5. In this claim, 

Appellant alleged that an affidavit from Bryant Graham, containing hearsay 

information from Joseph Stajkowski, proved that Angel Cabrera, a criminal 

investigator, coerced witnesses to lie at the request of former District 

Attorney Mark Baldwin. Amended Petition, 8/24/15, at 89–91; Appellant’s 

Brief at 86. In his Amended Petition, Appellant alleged he first learned of 

this affidavit on October 22, 2013, but did not obtain a copy of it until 

January 3, 2014. Amended Petition, 8/24/15, at 89–91. Even assuming 
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these dates are accurate, 42 Pa.C.S. § 9545(b)(2) requires the filing of any 

claim related to this affidavit no later than March 3, 2014, sixty days after 

January 3, 2014. While Appellant maintains that the delay in raising this 

claim resulted from errors of first PCRA counsel, Appellant’s claim of PCRA 

counsel’s ineffectiveness does not satisfy an exception to the PCRA time bar. 

Commonwealth v. Zeigler, 148 A.3d 849, 853–854 (Pa. Super. 2016) 

(citing Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785 (Pa. 2000) 

(explaining general rule that claim of ineffective assistance of counsel does 

not save otherwise untimely PCRA petition for review on merits)).

Suggesting applicability of the third exception of 42 Pa.C.S. § 

9545(b)(1), Appellant cites to Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 

2455 (2012), in the Amended Petition. Amended Petition, 8/24/15, at 97. 

In Miller, the Supreme Court held that sentencing a juvenile convicted of a 

homicide offense to mandatory life imprisonment without parole violates the 

Eighth Amendment’s prohibition against cruel and unusual punishment. 

Accordingly, such sentences cannot be handed down unless a judge or jury 

first considers mitigating circumstances. Id. at 2475.

Subsequently, the United States Supreme Court issued its decision in 

Montgomery v. Louisiana, 136 S.Ct. 718 (2016), clarifying that Miller

applies retroactively. Montgomery, 136 S.Ct. at 735-736. In 

Commonwealth v. Secreti, 134 A.3d 77, 82 (Pa. Super. 2016), this Court 

held that the filing date of Montgomery is to be used when calculating 
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whether a petition is timely filed under the sixty-day rule of 42 Pa.C.S. § 

9545(b)(2). Secreti, 134 A.3d at 82. Accordingly, pursuant to Secreti, 

Appellant has satisfied the sixty-day rule of section 9545(b)(2) because the 

instant PCRA petition was pending when Montgomery was decided on 

January 25, 2016.

The holding in Miller, however, was limited to those offenders who 

were under the age of eighteen at the time they committed their crimes. 

Miller, 132 S.Ct. at 2460. In Commonwealth v. Cintora, 69 A.3d 759 

(Pa. Super. 2013), this Court held that Miller is not an exception under 

section 9545(b)(1)(iii) to those age eighteen or over at the time of the 

commission of their crimes. Cintora, 69 A.3d at 764. In Commonwealth 

v. Furgess, 149 A.3d 90 (Pa. Super. 2016), we reaffirmed our holding in 

Cintora. In Furgess, the appellant, who was nineteen years old when he 

committed his crimes, presented an argument similar to Appellant’s claim 

that because “his brain had not completed its maturation and development,” 

he was similar to a juvenile. Amended Petition, 8/24/15, at 97; Furgess, 

149 A.3d at 94. We rejected this contention. Furgess, 149 A.3d at 94.

Our review of the certified record reflects that Appellant’s date of birth 

is October 12, 1986. The crimes for which Appellant was convicted occurred 

in March of 2005. Thus, Appellant was not a juvenile when he committed his 

crimes. Based on our holdings in Cintora and Furgess, it is apparent that 

the rule announced in Miller cannot apply to Appellant, who was not under 
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eighteen years old when he committed murder. Accordingly, Appellant’s

arguments that Miller should apply to his case cannot satisfy the timeliness 

exception of section 9545(b)(1)(iii).

Because Appellant’s PCRA petition was untimely and no exceptions 

apply, the PCRA court properly dismissed the PCRA petition and denied 

relief. See Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 

2002) (holding that PCRA court lacks jurisdiction to hear untimely petition). 

Likewise, we lack the authority to address the merits of any substantive 

claims raised in the PCRA petition. See Commonwealth v. Bennett, 930 

A.2d 1264, 1267 (Pa. 2007) (“[J]urisdictional time limits go to a court’s right 

or competency to adjudicate a controversy.”).6

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6

 We are compelled to comment on the brief Appellant has filed in this 

appeal. Appellant submitted a 110-page principal brief and a seventeenpage reply brief with sixty-eight pages of attachments. He does not certify a 

word-count for the reply brief; he includes a certification of a 24,245 wordcount for the principal brief. Appellant’s Brief at unnumbered page 

preceding page i. Pursuant to Pa.R.A.P. 2135, “a principal brief shall not 

exceed 14,000 words and a reply brief shall not exceed 7,000 words.” 

Pa.R.A.P. 2135(a)(1). If a principal brief exceeds thirty pages and/or a reply 

brief exceeds fifteen pages, the appellant must certify with the appellate 

court that the brief complies with the word limitation. Id. (emphasis 

added). Appellant’s principal brief exceeds the page limit by eighty pages, 

nearly four times the limit, and the word count by 10,245 words, which is 

nearly double the word limit of Rule 2135.

It is apparent that Appellant is in violation of Rule 2135. In 

Commonwealth v. Spuck, 86 A.3d 870 (Pa. Super. 2014), this Court 

quashed the appeal relying upon, inter alia, Pa.R.A.P. 2135. Further, 

Pa.R.A.P. 2101 underscores the seriousness with which the appellate courts 

take deviations from procedural rules, as it permits us to quash or dismiss 

(Footnote Continued Next Page)
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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/22/2017

(Footnote Continued) _______________________

an appeal for procedural noncompliance. Pa.R.A.P. 2101; Commonwealth 

v. Lyons, 833 A.2d 245 (Pa. Super. 2003). “[P]ro se status confers no 

special benefit upon the appellant.” Id. at 252. To the contrary, “any 

person choosing to represent himself in a legal proceeding must, to a 

reasonable extent, assume that his lack of expertise and legal training will 

be his undoing.” Commonwealth v. Adams, 882 A.2d 496, 497–498 (Pa. 

Super. 2005).

As in Spuck, if the instant petition was timely, we would conclude that 

quashal is the appropriate remedy in this case. Appellant’s brief is nearly 

two hundred percent too long, and it appears to be nothing but an 

exhaustive rehash of the issues presented in his previous PCRA petition and 

appeal.