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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

BIRDELL BROCKINGTON

                            Appellant                No. 3611 EDA 2015


                 Appeal from the PCRA Order October 30, 2015
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0002736-1997


BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                          FILED NOVEMBER 17, 2016

        Birdell Brockington appeals, pro se, from the order entered in the

Lehigh County Court of Common Pleas, dated October 30, 2015, dismissing

his second petition filed under the Post-Conviction Relief Act (“PCRA”), as

untimely.1 Brockington seeks relief from the judgment of sentence imposed

on May 26, 1998, following his convictions for various offenses including,

inter alia, first-degree murder.2 Based on the following, we affirm.

        The facts and procedural history are as follows.        Brockington’s

convictions stem from an incident on August 2, 1997, when he and Kevin
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. § 2501.
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Taylor burglarized the home of Bruce Kight in order to steal personal items

from him, and subsequently, Taylor shot Kight numerous times, killing him.

On May 22, 1998, a jury convicted Brockington of first-degree murder,

burglary, criminal trespass, theft by unlawful taking, and five counts of

criminal conspiracy.   Four days later, he was sentenced to an aggregate

term of life imprisonment. A panel of this Court affirmed the judgment of

sentence on July 31, 2000, and the Pennsylvania Supreme Court denied

allowance of appeal on December 14, 2000.            See Commonwealth v.

Brockington,    764    A.2d   1119    [493   EDA   1999]   (Pa.   Super.   2000)

(unpublished memorandum), appeal denied, 764 A.2d 1064 (Pa. 2000).

     On December 14, 2001, Brockington filed a timely, pro se PCRA

petition, alleging ineffective assistance of trial counsel.        Counsel was

appointed, and an amended petition was filed on his behalf. The PCRA court

held an evidentiary hearing on May 29, 2002, and subsequently denied

Brockington’s petition on July 15, 2002. A panel of this Court affirmed the

PCRA court’s order on May 20, 2003, and the Pennsylvania Supreme Court

denied allowance of appeal on June 22, 2004.         See Commonwealth v.

Brockington,    829    A.2d   353    [3028   EDA   2002]   (Pa.   Super.   2003)

(unpublished memorandum), appeal denied, 853 A.2d 359 (Pa. 2004).

     The case went dormant for over ten years until June 19, 2015, when

Brockington filed the present, pro se PCRA petition, his second, requesting

the admission of expert testimony regarding eyewitness identification “being


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that   it   is   no   longer   per   se   impermissible”   in   this Commonwealth.

Brockington’s Motion for Post Conviction Collateral Relief, 6/19/2015, at 3.

In support of his assertion, Brockington points to Commonwealth v.

Walker, 92 A.3d 766 (Pa. 2014),3 which he read about in a March 31, 2015,

article, titled “Handling Eyewitness Identification Experts and Cases,” in The

Legal Intelligencer. See Brockington’s Motion for Post Conviction Collateral

Relief, 6/19/2015, at Exhibit A.               Brockington also filed a “brief and

memorandum of newly excepted state law in support of PCRA petition” on

July 8, 2015.

       After reviewing the matter, the PCRA court issued a Pa.R.Crim.P. 907

notice of its intent to dismiss the petition without first conducting an

evidentiary hearing on October 5, 2015.             Specifically, the court found the

petition was untimely filed and Brockington did not prove any exception to

the timeliness provisions of the PCRA. Brockington filed a response to the

Rule 907 notice on October 27, 2015.4             Three days later, the PCRA court

denied Brockington’s petition. This appeal followed.



____________________________________________


3
   In Walker, the Pennsylvania Supreme Court held that “in Pennsylvania,
the admission of expert testimony regarding eyewitness identification is no
longer per se impermissible, and [it] join[ed] the vast majority of
jurisdictions which leave the admissibility of such expert testimony to the
discretion of the trial court.” Walker, 92 A.3d at 769.
4
    The response was not docketed until October 30, 2015.



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      On November 23, 2015, the PCRA court ordered Brockington to file a

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

1925(b). A review of the certified record reveals Brockington did not file a

concise statement. Nevertheless, the PCRA court issued an opinion pursuant

to Pa.R.A.P. 1925(a) on December 17, 2015.

      Herein, Brockington presents the following questions for our review:

            Whether the PCRA Court erred in denying [Brockington’s]
      Post-Conviction Petition of Newly Excepted State Law in Support
      of PCRA Petition as untimely filed when [Brockington]
      established that his [after-discovered facts claims [was] within
      the [plain language of the timeliness exception set forth at] 42
      Pa.C.S.A. § 9545(b)(1)(ii) and section 9545(b)(2)?; When
      [Brockington] requested an Evidentiary Hearing / Expert on [t]he
      Well-Known Fallibilities of an Eyewitness’s Testimony / Frye
      Hearing in relation to the Commonwealth v. Walker, 92 A.3d 776
      (Pa. 2014) case.

            Whether the PCRA Court erred in denying & dismissing
      [Brockington’s] Response To Notice of Intent To Dismiss To
      Pa.R.Crim. 907, when [Brockington] humbly presented / shared
      the following new case law with the court: Commonwealth v.
      Burton, PICS Case No. 15-1348 (Pa. Super. Aug. 25, 2015)
      Bender, J. (47 pages); To further show why [Brockington’s]
      PCRA and Memorandum of Newly Excepted State Law in Support
      of PCRA Petition should have been granted.

              Whether [Brockington] is entitled to a new trial, or remand
      for an Evidentiary Hearing / an Expert on the well-known
      fallibilities of an Eyewitness’s Testimony / Frye Hearing based
      upon: The Commonwealth v. Walker, 92 A.3d 776 (Pa. 2014)
      case; Elaborated on by: Mr. Jules Epstein and Ms. Marissa
      Bluestine in: The Legal Intelligencer, dated: Tues. March 31,
      2015, and an Exhibit (A) in [Brockington’s] Memorandum of
      Newly Excepted State Law In Support of: Post Conviction Relief
      Act Petition.

Brockington’s Brief at vi.


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        Before we may address the merits of Brockington’s claims, we must

determine whether he has properly preserved these issues. As noted above,

Brockington failed to file a court-ordered concise statement.

        Rule 1925 of the Rules of Appellate Procedure provides, in pertinent

part:

        (b) Direction to file statement of errors complained of on
        appeal; instructions to the appellant and the trial court. —
        If the judge entering the order giving rise to the notice of appeal
        (“judge”) desires clarification of the errors complained of on
        appeal, the judge may enter an order directing the appellant to
        file of record in the trial court and serve on the judge a concise
        statement of the errors complained of on appeal (“Statement”).

                                        …

        (3) Contents of order.--The judge’s order directing the filing and
        service of a Statement shall specify:

                                        …

           (iv) that any issue not properly included in the Statement
           timely filed and served pursuant to subdivision (b) shall be
           deemed waived.

                                        …

        (4) Requirements; waiver[.]

                                        …

           (vii) Issues not included in the Statement and/or not
           raised in accordance with the provisions of this paragraph
           (b)(4) are waived.

Pa.R.A.P. 1925(b)(3)(iv), (4)(vii).

        To effectuate these provisions, the Pennsylvania Supreme Court has

set forth a bright line rule that, “in order to preserve their claims for

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appellate review, appellants must comply whenever the trial court orders

them to file a Statement of Matters Complained of on Appeal pursuant to

Pa.R.A.P. 1925. Any issues not raised in a Pa.R.A.P. 1925(b) statement will

be deemed waived.” Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa.

2005), quoting Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998).                      This

bright line rule applies even when the trial or PCRA court has filed an

opinion. In re L.M., 923 A.2d 505, 509 (Pa. Super. 2007) (“If an appellant

does not comply with an order to file a Rule 1925(b) statement, all issues on

appeal are waived--even if the Rule 1925(b) statement was served on the

trial judge who subsequently addressed in an opinion the issues raised in the

Rule 1925(b) statement.”), citing Commonwealth v. Schofield, 888 A.2d

771, 774 (Pa. 2005).           See also Greater Erie Indus. Dev. Corp. v.

Presque Isle Downs, Inc., 88 A.3d 222, 224 (Pa. Super. 2014) (en banc)

(“our Supreme Court does not countenance anything less than stringent

application of waiver pursuant to Rule 1925(b)[.]”); Commonwealth v.

Dozier, 99 A.3d 106, 110 (Pa. Super. 2014), appeal denied, 628 Pa. 637,

104 A.3d 523 (Pa. 2014) (finding issues waived for failure to present them in

concise    statement).        Accordingly,     we   conclude   all   of   Brockington’s

arguments are waived.5


____________________________________________


5
   We note the PCRA court, and the Commonwealth, did not address
Brockington’s lack of a concise statement. Nevertheless, “we may affirm the
(Footnote Continued Next Page)


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          Assuming arguendo that Brockington had properly preserved his

claims, we would find no error in the PCRA court’s decision to deny him

relief.     When reviewing an order dismissing a PCRA petition, we must

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

record and is free of legal error. Commonwealth v. Burkett, 5 A.3d 1260,

1267 (Pa. Super. 2010). “Great deference is granted to the findings of the

PCRA court, and these findings will not be disturbed unless they have no

support in the certified record.” Commonwealth v. Carter, 21 A.3d 680,

682 (Pa. Super. 2011) (citation omitted), appeal denied, 72 A.3d 600 (Pa.

2013).

          Furthermore, “[c]rucial to the determination of any PCRA appeal is the

timeliness of the underlying petition. Thus, we must [] determine whether

the instant PCRA petition was timely filed.” Commonwealth v. Smith, 35

A.3d 766, 768 (Pa. Super. 2011), appeal denied, 53 A.3d 757 (Pa. 2012).

          The PCRA timeliness requirement … is mandatory and
          jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
          1035, 1038 (Pa. Super. 2007), appeal denied, 597 Pa. 715, 951
          A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa.
          1, 753 A.2d 201, 203 (2000)). The court cannot ignore a
          petition’s untimeliness and reach the merits of the petition. Id.

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied,

134 S. Ct. 2695 (U.S. 2014).

                       _______________________
(Footnote Continued)

PCRA court’s order on any basis.” Commonwealth v. Reed, 107 A.3d 137,
144 (Pa. Super. 2014).



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      A PCRA petition must be filed within one year of the date the

underlying judgment becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment

is deemed 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 review.” 42 Pa.C.S. §

9545(b)(3).   Here, Brockington’s judgment of sentence became final on

March 14, 2001, when the period for Brockington to file a petition for writ of

certiorari with the United States Supreme Court expired. See 42 Pa.C.S. §

9545(b)(3); U.S. Sup. Ct. R. 13(a).       Therefore, Brockington had one year

from that date, or until March 14, 2002, to file a timely PCRA petition. See

Taylor, supra. The instant petition was not submitted until June 15, 2015,

making it patently untimely.

      An untimely PCRA petition may, nevertheless, be considered if one of

the following three exceptions applies:

      (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.




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42 Pa.C.S. § 9545(b)(1)(i-iii). Furthermore, a PCRA petition alleging any of

the exceptions under Section 9545(b)(1) must be filed within 60 days of

when the PCRA claim could have first been brought. 42 Pa.C.S. §

9545(b)(2).

      In rejecting Brockington’s arguments, the PCRA court opined as

follows:

             In this case, [Brockington] has failed to demonstrate any
      exception to the timeliness requirements of the PCRA. In his
      PCRA petition, he cited the Pennsylvania Supreme Court’s
      decision in Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014)
      as a case which create a new constitutional right held to be
      retroactively applicable. However, Walker was decided on May
      28, 2014, over a year prior to [Brockington]’s instant PCRA
      petition, which places it outside the sixty day requrirement.2
      Accordingly, [Brockington]’s PCRA petition was untimely and did
      not entitle him to relief.3

      ______________________
           2
              Walker also did not include any reference or indication
           within the body of the decision or any subsequent
           decisions that it applies retroactively.     Absent some
           indication that Walker is retroactively applicable, even if
           [Brockington]’s PCRA petition had been filed within sixty
           days of the date Walker was decided, it would not afford
           [Brockington] any relief.      See Commonwealth v.
           Copenhefer, 941 A.2d 646, 649-50 (Pa. 2007) (language
           in the PCRA statute “has been held” requires court to
           recognize a new right and hold that it is to be applied
           retroactively).
           3
               In [Brockington]’s response to the Court’s Notice of
           Intent to Dismiss, [Brockington] cited the Superior Court’s
           recent decision of Commonwealth v. Burton, 121 A.3d
           1063 (Pa. Super. 2015). The Court notes that Burton was
           decided after [Brockington]’s PCRA petition was filed. The
           Court further notes that [Brockington] misconstrues the
           impact of Burton, which discussed the after-discovered

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         evidence exception to the timeliness requirements of the
         PCRA.     [Brockington]’s characterization of Burton is
         misplaced because the basis for his requested relief in this
         case was Walker, which falls under the exception of a new
         constitutional right. The creation of a new constitutional
         right is separate and distinct from after-discovered
         evidence. 42 Pa.C.S.A. §§ 9545(b)(ii), (iii).

      ______________________


PCRA Court Opinion, 12/17/2015, at 4-5.

      After reviewing Brockington’s arguments, the record, and our case

law, we would affirm on the basis of the PCRA court’s opinion. Brockington

has not established any of the timeliness exceptions to the PCRA

requirements. As such, we would agree with the PCRA court that it lacked

jurisdiction to address Brockington’s claims, and we would discern no abuse

of discretion by the court. Accordingly, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/17/2016




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