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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

SHERMAN MCGETH

                          Appellant                No. 2322 EDA 2015


                  Appeal from the PCRA Order June 26, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0102841-1997


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

JUDGMENT ORDER BY GANTMAN, P.J.:                     FILED JUNE 06, 2016

        Appellant, Sherman McGeth, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which denied his serial petition

filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-

9546.      On April 17, 1998, a jury convicted Appellant of six counts of

robbery, possessing an instrument of crime, and criminal conspiracy, in

connection with Appellant’s and a cohort’s armed robbery of a bar and its

patrons.     The court sentenced Appellant on December 16, 1998, to an

aggregate term of 20 to 40 years’ imprisonment.     This Court affirmed the

judgment of sentence, and our Supreme Court denied allowance of appeal

on August 22, 2000.        See Commonwealth v. McGeth, 757 A.2d 994

(Pa.Super. 2000), appeal denied, 564 Pa. 728, 766 A.2d 1245 (2000).

        Appellant timely filed his first PCRA petition pro se on October 30,
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2000.    The PCRA court appointed counsel, entered Rule 907 notice, and

ultimately denied Appellant’s petition on October 28, 2002.          Appellant

subsequently filed another unsuccessful PCRA petition.     Appellant filed the

current PCRA petition pro se on March 16, 2015.       The PCRA court issued

Rule 907 notice, and denied Appellant’s petition as untimely on June 26,

2015.     The PCRA court did not order a Rule 1925(b) statement, and

Appellant filed none.

        The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008), cert.

denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009). A PCRA

petition must be filed within one year of the date the underlying judgment

becomes final. 42 Pa.C.S.A § 9545(b)(1). A judgment is deemed final at

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

review. 42 Pa.C.S.A. § 9545(b)(3). The three statutory exceptions to the

timeliness provisions in the PCRA allow for very limited circumstances under

which the late filing of a petition will be excused. 42 Pa.C.S.A. § 9545(b)(1).

A petitioner asserting a timeliness exception must file a petition within sixty

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

9545(b)(2).    Section 9545(b)(1)(ii) requires the petitioner to allege and

prove facts unknown to him, which he could not have ascertained by the

exercise of due diligence. See 42 Pa.C.S.A. § 9545(b)(1)(ii). Furthermore,

when asserting the newly created constitutional right exception under


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Section 9545(b)(1)(iii), “a petitioner must prove that there is a ‘new’

constitutional right and that the right ‘has been held’ by that court to apply

retroactively.” Commonwealth v. Chambers, 35 A.3d 34, 41 (Pa.Super.

2011), appeal denied, 616 Pa. 625, 46 A.3d 715 (2012).

      Instantly, Appellant’s judgment of sentence became final on November

20, 2000. Appellant filed his current petition on March 16, 2015, more than

14 years later; thus, the petition is patently untimely. See 42 Pa.C.S.A. §

9545(b)(1).    Appellant attempts to invoke the timeliness exceptions

pursuant to Sections 9545(b)(1)(ii) and (iii), by alleging under (ii) that

Appellant’s cohort admitted to committing the robbery, with Appellant as an

accomplice, and under (iii) that this exculpatory information was withheld

from Appellant in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct.

1194, 10 L.Ed.2d 215 (1963), thus denying Appellant his 6 th Amendment

right to confrontation.     With respect to Section 9545(b)(1)(ii), who

committed the robbery and who was the accomplice were facts known to

Appellant at the time of his trial, and, therefore, do not constitute “new

facts” for the timeliness exception.      Regarding Section 9545(b)(1)(iii),

Brady does not serve as a newly recognized constitutional right exception to

an otherwise untimely PCRA petition.      Moreover, the current petition was

filed more than 60 days after Brady was decided. Accordingly, Appellant’s

petition remains time-barred.

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/6/2016




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