Com. v. Gardner, T

J-S13036-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

TERRY JERMAINE GARDNER :

:

Appellant : No. 2000 EDA 2022

Appeal from the PCRA Order Entered June 23, 2022

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

No(s): CP-15-CR-0003279-2006

BEFORE: NICHOLS, J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 12, 2023

Appellant Terry Jermaine Gardner appeals the order of the Court of

Common Pleas of Chester County denying his third petition pursuant to the

Post-Conviction Relief Act (PCRA) as untimely filed.1 We affirm.

This petition involves Appellant’s underlying charges in connection with

the shooting death of Brian Keith Brown on April 1, 2006. This Court

summarized the factual background of this case as follows:

In the early morning hours of April 1, 2006, a man by the

name of Odell Cannon, received a call from Jonathan Thompson,

who informed Mr. Cannon that Mr. Cannon’s brother, Jonas Suber,

had been shot. A blue vehicle driven by Dante Carter had pulled

up next to Jonas Suber’s white Cadillac and the passenger, Duron

Peoples, had shot one or two shots through the window of the

Cadillac, shattering the driver’s side window, and hitting Mr. Suber

in the right hand while he was speaking on a cell phone being held

in that hand. The shooting was not random: Jonas Suber and

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S.A. §§ 9541-9546.

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Duron Peoples were known enemies, their hatred stemming from

the love of the same woman.

Mr. Cannon, upon hearing that his brother was shot,

contacted his cousins, Randy Suber and Richard Legree, Jr., to

pick him up and take him to his brother’s house. On their way to

Jonas Suber’s house, Randy Suber was let out of the car and told

by Mr. Cannon to go to the Elks Club to keep an eye on Brian Keith

Brown, a friend of Duron Peoples. Upon arriving at Jonas Suber’s

house, Mr. Cannon and Mr. Legree met with a group of young

men, including [Appellant], the injured Mr. Suber, Jonathan

Thompson, Marquise James, Rahlik Gore, Josh McMillan, and

Edgar Barber. The discussion among the individuals quickly turned

to business. The group decided that Mr. Suber would be taken to

the hospital by Marquise James to have his injury tended to. In

the meantime, [Appellant] and the remaining individuals plotted

retaliation against Duron Peoples. It was decided that if Mr.

Peoples could not be found, then his friend, Brian Keith Brown,

would become the target of the retaliation plan.

After devising the plan, the men dispersed and took their

places throughout the neighborhood in the vicinity of where Mr.

Brown had already been located via a conversation with Randy

Suber. Following the initial meeting, Mr. Gore, Mr. Cannon, and

[Appellant] met at Mr. Gore’s house on Chestnut Street. There,

[Appellant] agreed to shoot Mr. Brown on behalf of Mr. Cannon.

Mr. Cannon promised that he would take care of [Appellant] if

[Appellant] completed the shooting. Following the discussion with

Mr. Cannon, [Appellant] took off in the direction of Eighth Street,

equipped with a handgun. Mr. Gore and Mr. Cannon went off

together to Mr. Cannon’s aunt’s house, in the area of Seventh

Street and Chestnut Street to maintain updates regarding Mr.

Brown’s movements from Randy Suber.

When the Elks Club started to close for the night at 3 a.m.,

Randy Suber contacted Mr. Cannon and informed him that Mr.

Brown was leaving the Elks Club. As Mr. Brown left, he was joined

by a man named Steven Pittman. The two proceeded down

Merchant Street toward North Chester Avenue. Meanwhile,

[Appellant] emerged through an empty lot located on the south

side of Merchant Street and approached Mr. Brown and Mr.

Pittman in from of Wright’s Funeral Home. [Appellant] then pulled

out a gun and fatally wounded Mr. Brown.

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Nearby, Robert Hamrick, who had just left the Vets Club, sat

in his white van parked on Merchant Street, directly in front of

Wright’s Funeral Home. From his vehicle, Mr. Hamrick saw

[Appellant] approach the victim, raise arm and fire. Panicked, he

drove his van away from the scene and proceeded toward Eighth

Avenue. Mr. Hamrick turned down Eighth Avenue and after

parking and exiting his car, heard the voice of Edgar Barber call

out to him. Mr. Barber asked him what had happened, and Mr.

Hamrick explained that he had just seen [Appellant] shoot Mr.

Brown. Mr. Barber invited Mr. Hamrick up to his porch where they

discussed the shooting event.

Shortly thereafter, Mr. Gore and Mr. Cannon approached the

porch of Mr. Barber. Prompted by Mr. Barber, Mr. Hamrick relayed

to the men that he had witnessed the murder of Mr. Brown. As

police vehicles began to swarm the area, the four men laid on the

porch to avoid detection. As they lay there, Mr. Cannon received

a direct-connect call from Mr. McMillan. During the conversation,

Mr. Cannon was assured that [Appellant] was with Mr. McMillan,

and there was discussion as to what had become of the gun used

to show Mr. Brown. Mr. Cannon ended the conversation, advising

Mr. McMillan and [Appellant] to “stay low” and “be cool.” After the

conversation with Mr. McMillan, Mr. Cannon warned Mr. Hamrick

not to say anything about the murder of Mr. Brown.

At approximately 3:30 a.m. on that same morning of April

1, 2006, Rachel Pinder was awoken in her apartment by her then-

fiancé, Mr. McMillan. As she roused herself from bed, Rahlik Gore

and [Appellant] entered her home. [Appellant] had a black gun in

his hands as he entered Ms. Pinder’s residence. When Ms. Pinder

inquired as to what was going on, [Appellant] told her that he had

shot Mr. Brown. Concerned, she inquired as to whether Mr. Brown

was on his way to the hospital in response to which, [Appellant]

answered that Mr. Brown was dead and that he had certain of this

to ensure that Mr. Brown wouldn’t seek revenge on him.

On the day following the murder, April 2, 2006, [Appellant]

asked Mr. Gore for a ride to Mr. Cannon’s barber shop, stating that

he needed to pick up money from Mr. Cannon. At some later point,

Mr. Cannon called Mr. Gore and told him to buy some new clothes

and sneakers for [Appellant]. Mr. Gore, in turn, called Mr. McMillan

and made the same request of him. [Appellant] was provided a

new pair of white, Nike Air Force One sneakers and a white sweat

suit.

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Later that same day, Mr. Legree happened to encounter

[Appellant] walking down the road and offered to give him a ride.

[Appellant] was wearing a white track suit and white sneakers.

While they were driving, [Appellant] turned to Mr. Legree and

asked him “how’d you like my work,” referring to the shooting of

Brian Keith Brown.

PCRA court order, 5/18/22, at 4-5 (citations omitted).

On August 20, 2010, after a jury trial, Appellant was convicted of first-

degree murder, aggravated assault, criminal conspiracy to commit murder

and aggravated assault, possession of a firearm without a license, and persons

not to possess a firearm. On October 27, 2010, the trial court sentenced

Appellant to an aggregate sentence of life imprisonment without parole. On

October 26, 2011, this Court affirmed the judgment of sentence.

Commonwealth v. Gardner, 3214 EDA 2010, at *1-2 (Pa.Super. October

26, 2011) (unpublished memorandum). On October 24, 2012, the Supreme

Court denied Appellant’s petition for allowance of appeal. Commonwealth v.

Gardner, 55 A.3d 522 (Pa. 2012).

On July 8, 2013, Appellant filed his first pro se PCRA petition. The PCRA

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

no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 917 (Pa.

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

December 29, 2014, the PCRA court issued notice of its intent to dismiss

Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907. On

February 9, 2015, the PCRA court dismissed the petition and permitted

counsel to withdraw.

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Once Appellant filed a timely appeal, the PCRA court directed him to file

a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). Despite being granted a 45-day extension to file a concise statement,

Appellant filed an untimely Rule 1925(b) statement. On October 5, 2016, this

Court dismissed the appeal based on Appellant’s failure to file a timely court-

ordered Rule 1925(b) statement. Commonwealth v. Gardner, 759 EDA

2015 (Pa.Super. October 5, 2016) (unpublished memorandum).

On April 23, 2018, Appellant filed a second PCRA petition. On June 22,

2018, the PCRA court issued a Rule 907 notice, specifically noting that

Appellant’s petition was untimely filed and did not meet one of the timeliness

exceptions. Appellant did not respond to the Rule 907 notice. On July 24,

2018, the PCRA court dismissed the petition as untimely. While Appellant filed

a timely appeal, this Court dismissed Appellant’s appeal of his second PCRA

petition as Appellant failed to file a brief. Commonwealth v. Gardner, 2462

EDA 2018 (Pa.Super. February 5, 2019).

On June 2, 2020, Appellant filed his third PCRA petition that is at issue

in this appeal. On July 24, 2020, Appellant filed a Motion for Leave to File an

Amended PCRA petition, which the trial court granted. On January 13, 2022,

Appellant filed an amended petition that did not raise new claims but included

a correction to one of the issues he raised in his June 2, 2020 petition.

On May 18, 2022, the PCRA court issued a Rule 907 notice, explaining

that a hearing was unnecessary as Appellant’s petition was untimely filed.

Appellant did not respond to the Rule 907 notice. On June 23, 2022, the PCRA

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court issued a final order denying Appellant’s third PCRA petition. On August

9, 2022, Appellant filed a notice of appeal.

Appellant raises the following issues for our review on appeal

(verbatim):

1. Whether the PCRA court abused its discretion and committed

reversible error when determining that Appellant’s claim that:

Appellant’s newly discovered evidence which contains the

after-discovered evidence provision unavailability at the time

of trial of exculpatory evidence has subsequently become

available, affidavits of Odell Cannon, Randy Suber, Steve Pugh,

and George Dalie?

2. Whether the PCRA court abused its discretion and committed

reversible error when determining that Appellant’s claim that:

the Commonwealth withheld exculpatory evidence of Edgar

Barber statements and testimony that key Commonwealth

witnesses were lying about their whereabouts on the night of

Brown homicide which falls within government inference, thus

violating Brady?

3. Whether the PCRA court abused its discretion and committed

reversible error when determining that Appellant’s claim that:

the Commonwealth’s failure to disclose to [Appellant] at the

time of trial favorable exculpatory material evidence of Edgar

Barber statements and testimony that Rahlik Gore and Robert

Hamrick lied about being on Mr. Barber’s porch the night of

Brown homicide amount to a classic prosecutorial misconduct

violation?

4. Whether the PCRA court abused its discretion and committed

reversible error when determining that Appellant’s claim that:

Appellant’s conviction was [not] so unfair no civilized society

can tolerate and [Appellant’s] conviction was [not] based on a

logical impossibility which amount to a miscarriage of justice?

5. Whether the PCRA court abused its discretion and committed

reversible error when determining that Appellant’s claim that:

Appellant is serving an illegal sentence [as the] trial court judge

sentenced Appellant separate on charges that should have

merged?

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Appellant’s Brief, at 4-6.

As an initial matter, we must determine whether we have jurisdiction to

address Appellant’s facially untimely appeal. Commonwealth v. DiClaudio,

112 A.3d 1242, 1244 (Pa.Super. 2019) (recognizing that this Court may raise

jurisdictional issues sua sponte) (citation omitted). Our rules of procedure

provide that an appeal “shall be filed within 30 days after the entry of the

order from which the appeal is taken.” Pa.R.A.P. 903(a).

As Appellant is currently incarcerated, we must apply the prisoner

mailbox rule which provides that “a pro se prisoner’s document is deemed

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

210 A.3d at 1074. “This Court is “inclined to accept any reasonably verifiable

evidence of the date that the prisoner deposits the [filing] with the prison

authorities.” Commonwealth v. Betts, 240 A.3d 616, 619 (Pa.Super. 2020)

(citation omitted). Our rules of appellate procedure provide that:

[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.

Pa.R.A.P. 121(f). See Commonwealth v. Jones, 700 A.2d 423, 426 (Pa.

1997) (citing envelope postage date as evidence that a notice of appeal was

delivered to prison authorities within the filing deadline).

As the PCRA court denied Appellant’s petition on June 23, 2022,

Appellant was required to file a notice of appeal by Monday, July 25, 2022.

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The envelope that Appellant used to mail his notice of appeal bears a U.S.

Postal Service date stamp of “07/06/2022.” The trial court docket entry for

the notice of appeal includes a note stating, “Post marked 7/6/2022. Received

in COC 8/9/2022.” Thus, pursuant to the prisoner mailbox rule, we may find

Appellant’s notice of appeal was timely filed within the 30-day appeal period.

Before we reach the merits of Appellant’s appeal, we also must

determine whether this PCRA petition was timely filed. It is well-established

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. Walters, 135 A.3d

589, 591 (Pa.Super. 2016) (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 PCRA petition

if the petitioner explicitly pleads and proves one of the three exceptions

enumerated in Section 9545(b)(1), 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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In this case, this Court affirmed the judgment of sentence on October

26, 2011 and the Supreme Court denied Appellant’s petition for allowance of

appeal on October 24, 2012. Appellant did not seek discretionary review in

the Supreme Court of the United States. Thus, Appellant’s judgment of

sentence became final on January 22, 2013, when the 90-day period for filing

a petition for allowance of appeal in the U.S. Supreme Court expired. See U.S.

Sup. Ct. R. 13. Thus, Appellant had until January 22, 2014 to file a timely

PCRA petition. Thus, Appellant’s third petition, filed on June 2, 2020, is facially

untimely and Appellant must satisfy one of the PCRA timeliness exceptions to

establish jurisdiction.

Appellant attempts to invoke two of the PCRA timeliness exceptions.

First, Appellant argues that he is entitled to the application of the newly-

discovered fact timeliness exception through the affidavits of four individuals

who Appellant alleges could provide after-discovered exculpatory evidence.

In order “[t]o qualify for an exception to the PCRA's time limitations

under subsection 9545(b)(1)(ii), a petitioner need only establish that the facts

upon which the claim is based were unknown to him and could not have been

ascertained by the exercise of due diligence.” Commonwealth v. Burton,

158 A.3d 618, 629 (Pa. 2017). If the petitioner can establish both prongs,

then the PCRA court may exercise jurisdiction over the matter.

Commonwealth v. Fears, 250 A.3d 1180, 1199 (Pa. 2021).

It is important to distinguish the newly-discovered fact PCRA timeliness

exception as set forth in Subsection 9545(b)(1)(ii) and a claim for relief based

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on after-discovered evidence pursuant to 42 Pa.C.S.A. § 9542(a)(2). Once the

PCRA court’s jurisdiction has been properly invoked by a petition that was

timely filed or satisfies one of the PCRA timeliness exceptions, a petitioner

raising a claim of after-discovered evidence must prove that “(1) the

exculpatory evidence has been discovered after trial and could not have been

obtained at or prior to trial through reasonable diligence; (2) the evidence is

not cumulative; (3) it is not being used solely to impeach credibility; and (4)

it would likely compel a different verdict.” Burton, 158 A.3d at 629 (quoting

Commonwealth v. D'Amato, 856 A.2d 806, 823 (Pa. 2004)).

The PCRA court found that Appellant failed to establish that he acted

within 60 days after discovering his claims or that he could not have

discovered his alleged claims earlier through the exercise of due diligence.

However, while Section 9545(b)(2) previously required petitioners to file a

petition raising the applicability of one of the timeliness exceptions within sixty

days from the date that the claim could have been raised, Section 9545(b)(2)

has since been amended to give a petitioner one year rather than sixty days

to raise his claim. 42 Pa.C.S.A. § 9545(b)(2) (as amended October 24, 2018,

P.L. 894, No. 146). We note that this amendment became effective on

December 24, 2018 and it applies only to claims arising on December 24,

2017, or thereafter. Id.

However, even assuming that these particular allegations in each of the

four affidavits met the newly discovered evidence exception in that Appellant

discovered this information within a year of filing this petition and acted with

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due diligence in presenting this claim to the PCRA court, Appellant has not

adequately pled how any of these allegations constitutes after-discovered

evidence that entitles him to a new trial.2

The first two affidavits are interrelated. Appellant’s first affidavit is from

Odell Cannon, one of the individuals that the Commonwealth suspected had

orchestrated Brown’s murder. Appellant claimed that he did not have contact

with Cannon until the two men met in prison in 2019 at which time Cannon

gave Appellant a second affidavit that Randy Suber had prepared in 2017. In

that second affidavit, Suber asserted that he neither had contact with Cannon

before Brown’s murder nor did Cannon direct him to locate Brown at the Elks

Club that night.

We fail to see how Suber’s allegation that he had no contact with Cannon

before Brown’s murder is likely to compel a different verdict in Appellant’s

case. While Suber’s testimony is relevant to Cannon’s defense, Suber does

not provide any testimony that would constitute exculpatory evidence in favor

of Appellant, who was accused of shooting and killing Brown.

The third individual, George Dalie, initially submitted an affidavit

claiming that he was with one of the Commonwealth’s eyewitnesses, Rahlik

Gore, on March 31, 2006 participating in a drug transaction at a local Family

Dollar store. Appellant subsequently submitted a revised affidavit (dated July

____________________________________________

2 The PCRA court also found that Appellant had failed to pled and prove that

his counsel were ineffective in failing to present the four individuals as

witnesses at trial. However, as Appellant has only framed these allegations in

terms of after-discovered evidence, we must limit our analysis accordingly.

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20, 2020) in which Dalie claimed he was actually with Gore on the night of

April 1, 2006, as this was relevant date on which Brown was shot. Appellant

claims that Dalie’s testimony would show that Gore could not have witnessed

Appellant shoot Brown if he was with Dalie when the shooting occurred.

To the extent that Dalie claimed that he was with Gore on March 31,

2006, the day before the murder, the PCRA court found such testimony

irrelevant to Appellant’s defense. Even in considering Dalie’s corrected

affidavit claiming he was with Gore on April 1, 2006, the PCRA court found

that this affidavit still fails to contradict Gore’s testimony that he had

witnessed Appellant shoot the victim.

In the fourth affidavit (dated June 6, 2019), Steve Pugh claimed that a

few weeks before Brown’s murder, he took a picture with Appellant at a party

in which Appellant was wearing a white sweatsuit and Nike Air Force One

sneakers. Appellant suggests this would impeach Rahlik Gore’s testimony that

Appellant received a white sweatsuit and white Nike sneakers as payment for

committing Brown’s murder.

Appellant has not shown that this affidavit entitles him to relief as after-

discovered evidence as it would solely be used to impeach Gore’s credibility.

Further, Appellant has not argued that Pugh’s allegations could result in a

different verdict in this case in light of the overwhelming evidence presented

at trial. Appellant has neither challenged the testimony of Gore and Hamrick’s

testimony that they witnessed Appellant shoot the victim nor the testimony of

Pinder and Legree who both claimed that Appellant told them he committed

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the victim’s murder. Accordingly, we conclude that the PCRA court did not err

in denying Appellant relief on his claims of after-discovered evidence.

Second, Appellant alleges that he is entitled to the application of the

governmental interference exception based on his specific allegation that the

Commonwealth withheld exculpatory evidence in violation of Brady v.

Maryland, 373 U.S. 83 (1963). Specifically, Appellant alleges that the

Commonwealth failed to disclose to Appellant that Edgar Barber had testified

before a grand jury in 2006 that Rahlik Gore and Robert Hamrick lied when

they claimed to have hid on Barber’s porch after Brian Keith Brown was shot.

Appellant asserts that he only learned about Barber’s account in 2019 when

he was incarcerated with Cannon, who shared a transcript from his own

evidentiary hearing in 2014 at which Barber gave similar testimony.

Our Supreme Court has provided that, in order to establish a Brady

violation:

a defendant must show that: (1) evidence was suppressed by the

state, either willfully or inadvertently; (2) the evidence was

favorable to the defendant, either because it was exculpatory or

because it could have been used for impeachment; and (3) the

evidence was material, in that its omission resulted in prejudice

to the defendant. See Commonwealth v. Lambert, 584 Pa. 461,

471, 884 A.2d 848, 854 (2005); Commonwealth v. Collins, 585

Pa. 45, 68, 888 A.2d 564, 577–78 (2005). However, “the mere

possibility that an item of undisclosed information might have

helped the defense, or might have affected the outcome of the

trial, does not establish materiality in the constitutional sense.”

Commonwealth v. Chambers, 570 Pa. 3, 29, 807 A.2d 872, 887

(2002) (citation omitted and emphasis added). Rather, evidence

is material “only if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the

proceeding would have been different. A reasonable probability is

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a probability sufficient to undermine confidence in the outcome.”

Id. at 29, 807 A.2d at 887–88.

Commonwealth v. Willis, 46 A.3d 648, 656 (Pa. 2012) (internal citation

omitted).

Our Supreme Court has recognized that:

[a]lthough a Brady violation may fall within the governmental

interference exception, the petitioner must plead and prove the

failure to previously raise the claim was the result of interference

by government officials, and the information could not have been

obtained earlier with the exercise of due diligence.

[Commonwealth v.] Breakiron, [781 A.2d 94,] 98 [(Pa. 2001)].

Section 9545(b)(1)(ii)'s exception requires the facts upon which

the Brady claim is predicated were not previously known to the

petitioner and could not have been ascertained through due

diligence. Commonwealth v. Lambert, 584 Pa. 461, 884 A.2d

848, 852 (2005). In [Commonwealth v.] Bennett, [930 A.2d

1264, 1270-72 (Pa. 2007)], we clarified that § 9[545](b)(1)(ii)'s

exception does not contain the same requirements as a Brady

claim, noting “we made clear the exception set forth in subsection

(b)(1)(ii) does not require any merits analysis of the underlying

claim. Rather, the exception merely requires that the ‘facts upon

which such a claim is predicated must not have been known to

appellant, nor could they have been ascertained by due diligence.”

Bennett, at 1271 (quoting Lambert, at 852).

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

We agree with the PCRA court that Appellant has not satisfied one of the

PCRA timeliness exceptions as he failed to show that he acted with due

diligence in presenting this claim. Appellant clearly knew that Barber was

present near the crime scene as witnesses testified at Appellant’s trial in 2010

that Barber allowed them to hide on his porch after the victim’s murder. He

makes no attempt to explain why he could not have discovered the substance

of Barber’s account of the events in question until 2020.

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Moreover, Appellant’s claim fails on the merits as he has not established

that Barber’s testimony was “material” such that its omission resulted in

prejudice to the defense. Barber’s testimony merely concerned events that

happened after Appellant was observed committing the victim’s murder.

Barber admitted that he had no knowledge of what occurred during the murder

as he did not witness it. When viewed in context of the ample weight of the

evidence of Appellant’s guilt presented at trial, Appellant has not shown that

there is a reasonable possibility that Barber’s testimony, if it had been

disclosed to the defense, would have changed the result of Appellant’s trial.

As such, Appellant is not entitled to relief.

Lastly, Appellant asserts that the PCRA court erred in refusing to address

his challenge to the legality of his sentence. Specifically, Appellant claimed in

his petition that his convictions for first-degree murder and conspiracy to

commit murder should have merged for sentencing purposes.

It is well-established that “a court may entertain a challenge to the

legality of the sentence so long as the court has jurisdiction to hear the claim.

In the PCRA context, jurisdiction is tied to the filing of a timely PCRA petition.”

Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa.Super. 2007) (internal

quotations and citations omitted). Our Supreme Court has clarified that

“[a]lthough legality of sentence is always subject to review within the PCRA,

claims must still first satisfy the PCRA's time limits or one of the exceptions

thereto.” Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999).

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As Appellant’s petition is untimely and he made no attempt to invoke

one of the timeliness exceptions to allow for review of this specific argument,

the PCRA court correctly refused to address the merits of the legality of

sentencing claim as it was without jurisdiction to do so.

For the foregoing reasons, we affirm the order denying Appellant’s third

PCRA petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/12/2023

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