J-S48022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                      v.                       :
                                               :
                                               :
    DARIEN BARBER                              :
                                               :
                           Appellant           :   No. 2023 EDA 2017

                   Appeal from the PCRA Order June 16, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0901961-2005


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

MEMORANDUM BY SHOGAN, J.:                           FILED NOVEMBER 26, 2019

        Appellant, Darien Barber, appeals pro se from the order denying his

second petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

        The PCRA court summarized the procedural history of this case as

follows:
              On September 27, 2006, following a two defendant jury
        trial,1
              [Appellant] was found guilty of second-degree murder (H-
        2), robbery (F-1), burglary (F-1), and criminal conspiracy (F-1)2.
        Sentencing was deferred until November 21, 2006. As to the
        charge of second-degree murder, the [c]ourt sentenced
        [Appellant] to the mandatory term of life imprisonment,3
        consecutive to a sentence of ten to twenty years imprisonment
        which [Appellant] was already serving.4

                  1 [Appellant] was tried with co-defendant Rolando
                  Hall, CP-51-CR-0108131-2004.         [Appellant] was
                  represented at trial by Daniel Greene, Esquire.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S48022-19



           2 18 Pa.C.S. §§ 2502(b), 3701(a)(1), 3502(a), and
           903, respectively.

           3   18 Pa.C.S. § 1102(b).

           4 As to the charge of criminal conspiracy, the [c]ourt
           sentenced [Appellant] to a term of imprisonment of
           not less than 85 months, nor more than 170 months,
           concurrent with the second-degree murder sentence.
           The robbery and burglary charges merged with the
           second-degree murder charge.

          On November 27, 2006, [Appellant] filed post-sentence
     motions, which were denied by operation of law on March 28,
     2007. [Appellant] filed a notice of appeal to Superior Court on
     March 28, 2007.

            Superior Court affirmed [Appellant’s] judgment of sentence
     on May 8, 2008.5 Following our Supreme Court’s January 6, 2009,
     denial of his Petition for Allowance of Appeal,6 [Appellant] filed a
     timely counseled7 petition pursuant to the [PCRA]8 on January 5,
     2010.     On August 20, 2010, [Appellant] filed a counseled
     supplemental amended petition, and the Commonwealth
     responded by filing a motion to dismiss on January 28, 2011.
     After reviewing the pleadings, this [c]ourt found that [Appellant’s]
     claims were without merit and, on March 28, 2011, issued a notice
     to [Appellant] of its intent to deny and dismiss his claims without
     a hearing, pursuant to Pa.R.Crim.P. 907 (907 Notice). PCRA
     counsel filed a response to the 907 Notice on April 20, 2011,
     requesting permission to file a second supplemental amended
     petition, which was filed on June 1, 2011. After review of the
     additional submission and the record, on June 3, 2011, this [c]ourt
     dismissed [Appellant’s] claims consistent with its 907 Notice. On
     July 1, 2011, [Appellant] filed a timely notice of appeal to Superior
     Court.9 On July 10, 2012, Superior Court affirmed the dismissal
     of [Appellant’s] PCRA petition, and on July 31, 2013[,] our
     Supreme Court denied [Appellant’s] petition for allowance of
     appeal.10

           5Commonwealth_ v. Barber, No. 922 EDA 2007 slip
           op. (Pa. Super., May 8, 2008) (unpublished
           memorandum opinion).


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           6 Commonweith v. Barber, No. 305 EAL 2008, slip op.
           (Pa., Jan. 6, 2009) (unpublished memorandum
           opinion).

           7 [Appellant] retained David Rudenstein, Esquire, to
           represent him on collateral attack.

           8   42 Pa.C.S. §§ 9541-9546.

           9Barnaby Wittels, Esquire was appointed to represent
           [Appellant] on appeal, as [Appellant] did not continue
           with David Rudenstein, Esquire.

           10Commonwealth v. Barber, No. 1736 EDA 2011, slip
           op. (Pa.Super., July 10, 2012) (memorandum
           opinion); allocatur denied, No. 19 EAL 2013, slip op.
           (Pa., July 31, 2013) (memorandum opinion).

           The instant untimely petition, [Appellant’s] second, was filed
     pro se on October [2], 2012.11 [Appellant] claimed that trial
     counsel was ineffective for failing to investigate12 Commonwealth
     witness Chauntey Rothmiller (Rothmiller),13 and further claimed
     that the Commonwealth committed a Brady14 violation by not
     turning over favorable evidence to the defense, in the form of
     records concerning an open criminal case against Rothmiller.

           11 [Appellant] prematurely filed this PCRA petition, as
           it was filed before our Supreme Court had made a
           decision on whether to grant [Appellant’s] petition for
           allowance of appeal. See Commonwealth v. Lark,
           746 A.2d 585, 588 (Pa. 2000) (“When an appellant’s
           PCRA petition is pending before a court, a subsequent
           PCRA petition cannot be filed until the resolution of
           the pending PCRA petition by the highest state court
           in which review is sought, or upon the expiration of
           the time for seeking such review.”). [Appellant’s]
           petition for allowance of appeal was denied on July 31,
           2013. However, this [c]ourt was not notified by the
           Post-Trial Unit of the First Judicial District (Criminal
           Division) of the existence of this PCRA petition until
           January 19, 2016. This [c]ourt informed [Appellant]
           in its 907 Notice that it would address the petition as
           if it had been properly re-filed after our Supreme
           Court made its decision, as the delay was due to an

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J-S48022-19


           obvious breakdown in the system rather than any
           oversight by [Appellant].

           12 As this [c]ourt ultimately dismissed [Appellant’s]
           petition on timeliness grounds, the [c]ourt did not
           reach the merits of [Appellant’s] claim, including the
           adequacy of trial counsel’s pre-trial investigation.

           13   Rothmiller, who was a co-conspirator with
           [Appellant] and Hall, testified as the Commonwealth’s
           star witness at the trial of [Appellant] and Hall. N.T.
           9/22/06 at 9. For his role in these crimes, Rothmiller
           was sentenced to an aggregate term of no less than
           15 years and no more than 30 years imprisonment,
           followed by two years reporting probation, for third-
           degree murder (H-3), criminal conspiracy (F-1),
           robbery (F-1), and possessing instruments of crime
           (PIC) (M-1). CP-51-CR-1007461-2003; N.T. 10/2/06
           at 26-27.

           14   Brady v. Maryland, 373 U.S. 83 (1963).

            Addressing the issue of timeliness, [Appellant] pled the
     timeliness exceptions for newly-discovered facts and for
     government interference, pursuant to 42 Pa.C.S. §§ 9545(b)(1)(i)
     and (ii), with respect to both claims. On February 9, 2016, having
     considered the petition and finding that [Appellant] had failed to
     satisfy his burden of proof in showing that either of his claims
     satisfied any one of the timeliness exceptions articulated in
     § 9545(b), this [c]ourt sent [Appellant] a 907 Notice. On March
     1, 2016, [Appellant] responded to the 907 Notice, providing a
     copy of Rothmiller’s criminal docket, which he had earlier failed to
     do, which indicated that Rothmiller had been arrested in
     connection with a robbery which occurred in Chester County,
     Pennsylvania, on October 1, 2003.15         Therefore, [Appellant]
     claimed, Rothmiller could not have been with [Appellant] at all
     times during the evening of September 30, 2003[,] through the
     morning of October 1, 2003, as Rothmiller had testified at trial.
     See Notes of Testimony (N.T.) 9/22/06 at 19-22.

           15 This
                 [c]ourt notes that [Appellant] claimed in his pro
           se petition that the docket sheet indicated that the
           robbery occurred “in the early morning hours” of
           October 1, 2003. PCRA Petition, 10/2/2012 at 3.

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J-S48022-19


           Though the criminal docket attached to [Appellant’s]
           response to the 907 Notice provides an offense date
           of October 1, 2003, the docket contains no details with
           respect to the specific time the robbery was
           committed or other circumstances of the robbery for
           which Rothmiller was arrested. Therefore, it appears
           that, even before an evidentiary hearing was granted
           on this petition, [Appellant’s] knowledge of
           Rothmiller’s prior robbery did not come solely from the
           criminal docket sheet.      See also note 33, infra,
           regarding [Appellant’s] explanation for the source of
           this information.

            Thereafter, this [c]ourt ordered the Commonwealth to file a
     responsive pleading, which it did on May 13, 2016. Upon review
     of the Commonwealth’s filing, this [c]ourt found that there
     remained genuine disputes of material fact concerning
     [Appellant’s] knowledge of the Chester County robbery and that
     further proceedings were necessary to resolve those disputes.
     Therefore, this [c]ourt granted an evidentiary hearing to
     determine whether [Appellant] could establish that he had
     satisfied one of the timeliness exceptions and that he filed the
     petition within 60 days of the date that he asserted he first
     discovered Rothmiller’s Chester County docket. See Pa.R.Crim.P.
     907(1) (providing that a petition under the PCRA may be
     dismissed without a hearing only if, after the [c]ourt’s review, the
     [c]ourt is satisfied “that there are no genuine issues concerning
     any material fact and that the defendant is not entitled to post-
     conviction collateral relief, and no purpose would be served by any
     further proceedings.”). On July 5, 2016, this [c]ourt ordered the
     appointment of counsel to represent [Appellant] at the evidentiary
     hearing.16 On November 14, 2016, PCRA counsel filed a motion
     for leave to amend the petition and a motion to compel discovery.
     On January 13, 2017, this [c]ourt denied leave to amend but
     provided PCRA counsel 60 days to file a supplemental response to
     the 907 Notice, limited to evidence with respect to timeliness.17
     Also on that date, this [c]ourt granted [Appellant] discovery with
     respect to any requests that had previously been submitted by
     trial counsel seeking information on Rothmiller.

           16  See Pa.R.Crim.P. 904(D) (providing for the
           appointment of counsel for indigent petitioners on a
           second or subsequent PCRA petition upon the grant of
           an evidentiary hearing). This [c]ourt sent [Appellant]

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J-S48022-19


           a letter on July 6, 2016 explaining that he had been
           added to the list of petitioners awaiting the
           appointment of counsel, and informing him that the
           backlog of PCRA appointments meant that the [c]ourt
           would not schedule the evidentiary hearing until after
           counsel for the hearing had been appointed. On
           September 20, 2016, Stephen O’Hanlon, Esquire, was
           appointed to represent [Appellant], however, on
           October 7, 2016, Carrie Sarhangi-Love, Esquire,
           agreed to represent [Appellant] on a pro bono basis
           for his hearing. Therefore, in light of the limited
           number of attorneys available for appointment to
           PCRA matters, this [c]ourt removed Mr. O’Hanlon as
           counsel for [Appellant] on October 7, 2016. On
           November 9, 2016, Michael Witsch, Esquire, entered
           his appearance as Ms. Sarhangi-Love’s pro bono co-
           counsel.

           17 On March 13, 2017, PCRA counsel filed that
           response to the 907 Notice.

          The evidentiary hearings were held on April 21, 2017[,] and
     May 19, 2017.

           On June 12, 2017, the Commonwealth filed a post-hearing
     memorandum of law.18 After considering all the evidence from
     the hearings and the pre- and post-hearing filings by both parties,
     this [c]ourt determined that [Appellant] had not satisfied the
     timeliness exception for newly –discovered facts.19 Therefore, this
     [c]ourt dismissed [Appellant’s] petition in open court on June 16,
     2017.20 This timely appeal followed.

           18  PCRA counsel did not file a post-hearing
           memorandum, however, this [c]ourt did not issue an
           order requiring either side to file post-hearing briefs.

           19 Though this [c]ourt did not explicitly address the
           timeliness exception for government interference on
           June 12, 2017, as discussed in detail infra, this
           [c]ourt’s finding meant that [Appellant] could satisfy
           neither the timeliness exception for newly-discovered
           facts nor the exception for government interference.




                                    -6-
J-S48022-19


            20 Ms. Sarhangi-Love was permitted to withdraw, and
            the [c]ourt ordered the appointment of new counsel
            for any appeal of the [c]ourt’s decision. On June 22,
            2017, Benjamin Cooper, Esquire, entered his
            appearance as [Appellant’s] appellate counsel in this
            matter.

PCRA Court Opinion, 12/28/17, at 1-5.

      Appellant and the PCRA court complied with Pa.R.A.P. 1925. On appeal,

Appellant presents the following issue for our review: “Did the learned PCRA

court commit an abuse of discretion by denying Appellant PCRA relief?”

Appellant’s Brief at 3.

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA court’s

determination is free of legal error. Commonwealth v. Phillips, 31 A.3d

317, 319 (Pa. Super. 2011). The PCRA court’s findings will not be disturbed

unless there is no support for the findings in the certified record. Id.

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

judgment of sentence becomes final.      42 Pa.C.S. § 9545(b)(1). This time

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition.    Commonwealth v.

Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). 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).

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J-S48022-19


       However, 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.1 A petition invoking one of these exceptions must be filed within

sixty days of the date the claim could first have been presented. 2 42 Pa.C.S.

§ 9545(b)(2).



____________________________________________


1   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).
2 Until recently, a petition invoking an exception was required to be filed within
sixty days of the date the claim could have been presented. However, Act
146 of 2018 amended 42 Pa.C.S. § 9545(b)(2), and Section 9545(b)(2) now
provides that a PCRA petition invoking a timeliness exception must be filed
within one year of the date the claim could have been presented. See 2018
Pa.Legis.Serv.Act 2018-146 (S.B. 915), effective December 24, 2018, § 2 and
§ 3 (“[T]he amendment ... shall apply to claims arising on Dec. 24, 2017 or
thereafter.”). Because Appellant’s instant petition was filed in 2012, this
change is inapplicable to the case sub judice.




                                           -8-
J-S48022-19


       Our review of the record reflects that Appellant was sentenced on

November 21, 2006. Appellant filed post-sentence motions on November 27,

2006, which were denied by operation of law on March 28, 2007. Appellant

filed a direct appeal. This Court affirmed Appellant’s judgment of sentence on

May 8, 2008, Commonwealth v. Barber, 954 A.2d 31, 922 EDA 2007 (Pa.

Super., filed May 8, 2008) (unpublished memorandum), and our Supreme

Court denied his petition for allowance of appeal on January 6, 2009.

Commonwealth v. Barber, 963 A.2d 466, 305 EAL 2008, (Pa., filed January

6, 2009). Accordingly, Appellant’s judgment of sentence became final on April

6, 2009, when the time for seeking certiorari from the United States Supreme

Court expired.3 See 42 Pa.C.S. § 9545(b)(3) (providing that “a judgment

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.”). Therefore,

Appellant had to file the current PCRA petition by April 6, 2010, in order for it

to be timely. See 42 Pa.C.S. § 9545(b)(1) (A PCRA petition must be filed

within one year of the date that the judgment of sentence becomes final).

Appellant did not file the instant PCRA petition until October 2, 2012. Thus,

Appellant’s instant PCRA petition is patently untimely.


____________________________________________


3  Appellant had ninety days from the date of the Pennsylvania Supreme
Court’s decision on direct appeal to file a petition for a writ of certiorari with
the United States Supreme Court. Commonwealth v. Hackett, 956 A.2d
978, 980 n.4 (Pa. 2008); United States Supreme Court Rule 13.

                                           -9-
J-S48022-19


       As previously stated, if a petitioner does not file a timely PCRA petition,

his petition may nevertheless be received under any of the three limited

exceptions to the timeliness requirements of the PCRA.               42 Pa.C.S.

§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file his

petition within sixty days of the date that the exception could be asserted. 42

Pa.C.S. § 9545(b)(2). It is the petitioner’s burden to allege and prove that

one of the exceptions exists. Commonwealth v. Whitehawk, 146 A.3d 266,

269–270 (Pa. Super. 2016).

       Appellant first asserts that he established the newly-discovered-facts

exception to the PCRA time bar. Appellant’s Brief at 16, 27-28. Appellant

maintains that after his trial, he discovered evidence that Rothmiller, who

testified for the Commonwealth at Appellant’s trial, had been charged with

robbery for an incident that occurred hours before the incident in the present

case. Id. at 16. Appellant further contends:

       That evidence consisted of Rothmiller’s criminal history, which
       [A]ppellant avers was not provided to him prior to or during the
       trial and which he claimed he first learned about after [George]
       Bussinger[4] reviewed discovery material and saw that it did not
       contain a criminal extract for Rothmiller. Based on the failure of
       the Commonwealth to provide Rothmiller’s criminal extract to him,
       [A]ppellant alleged that he was not able to impeach Rothmiller’s
       already shaky credibility with evidence that Rothmiller had been
       accused of committing crimen falsi crimes mere hours before the
       crimes in the instant matter were committed.
____________________________________________


4 The parties entered into a stipulation with regard to George Bussinger
(“Bussinger”), who was an inmate serving time for robbery convictions at
State Correctional Institution Forest, where Appellant was also incarcerated.
N.T., 5/19/17, at 7-9.

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J-S48022-19



Appellant’s Brief at 16-17. Appellant maintains that he received a copy of

Rothmiller’s criminal extract reflecting this robbery from Bussinger in August

2012, and that he sent this information to his attorney on August 24, 2012.

Id. at 18-19.     Appellant contends that he promptly filed the instant PCRA

petition after Bussinger viewed Appellant’s discovery material and noticed it.

Id. at 32. Appellant contends that he could not have filed his second PCRA

petition from the date he advised his counsel of Rothmiller’s involvement in

the robbery because he was barred from filing a subsequent PCRA while the

first was pending on appeal. Id. at 31.5

       “The timeliness exception set forth in Section 9545(b)(1)(ii) requires a

petitioner to demonstrate he did not know the facts upon which he based his

petition and could not have learned those facts earlier by the exercise of due

diligence.” Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015).

       Due diligence demands that the petitioner take reasonable steps
       to protect his own interests. A petitioner must explain why he
       could not have learned the new fact(s) earlier with the exercise of
       due diligence. This rule is strictly enforced. Additionally, the focus
       of this exception ‘is on the newly discovered facts, not on a newly
       discovered or newly willing source for previously known facts.’

Id. (internal citations omitted).




____________________________________________


5  We note that, although unnecessary to our analysis, Appellant did, in fact,
file his instant PCRA petition while his first petition was pending on appeal, as
the PCRA court explained in its Pa.R.A.P. 1925(a) opinion. PCRA Court
Opinion, 12/28/17, at 3, n.11.

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J-S48022-19


      In the case sub judice, review of the PCRA evidentiary hearing transcript

reflects that Appellant knew of Rothmiller’s involvement in the Chester County

robbery as early as Appellant’s preliminary hearing. The following exchange

took place during the April 21, 2017 evidentiary hearing on Appellant’s instant

PCRA petition:

      [Assistant District Attorney]: Do you remember your preliminary
      hearing when you were represented by Mr. de Marco?

      [Appellant]: Yes.

      [Assistant District Attorney]:       And do you remember the
      prosecutor, Mr. Carle, saying, quote: “The witness is Jabar
      Rasheed. He’s also known as Chauntey Rothmiller. I also
      provided Mr. de Marco a copy of Mr. Rasheed’s criminal history as
      well as a memorandum agreement that Jabar Rasheed signed with
      the district attorney’s office.” Do you remember that?

      [Defense Counsel]: For the record, are you reading from C-2, the
      preliminary hearing notes?

      [Assistant District Attorney]: I am. I’m reading from C-2, which
      is the preliminary hearing notes which took place on August 30,
      2005. I’m reading from Page 6.

      [Appellant]: What was your question?

      [Assistant District Attorney]:     You were at that preliminary
      hearing, correct?

      [Appellant]: Yes.

      [Assistant District Attorney]: Do you remember that taking place,
      what I just read?

      [Appellant]: The witnesses [sic] is Jabar Rasheed?

      [Defense Counsel]: And the rest of it.

      [Assistant District Attorney]: And the rest of it.

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J-S48022-19



       [Defense Counsel]: For the record, I’ve handed my client a copy
       of C-2 with the relevant portion that the DA just read highlighted.

       [Appellant]: I don’t remember it, but it’s right here.

       [Assistant District Attorney]: But you were there for that, correct?

       [Appellant]: I was present for this hearing, yes.

N.T., 4/21/17, at 113-115.

       Thus, the evidence supports the conclusion that Appellant knew of this

information regarding Rothmiller’s Chester County robbery as early as August

30, 2005, which was prior to his trial. N.T., 4/21/17, at 114. As such, we

cannot agree that Appellant has met the first prong required to meet the

newly-discovered-facts exception: the information was not newly discovered.

Brown, 111 A.3d at 176. Furthermore, this evidence also defeats the second

prong requiring “due diligence” in discovering these facts. Even if Appellant

argues that he was unaware of this information, the evidence supports the

conclusion that through due diligence, he could have discovered this

information as early as August 30, 2005. Id.6 Thus, the PCRA court did not

err in concluding that Appellant failed to meet the newly-discovered-facts

exception to the PCRA time-bar.



____________________________________________


6 In his appellate brief, Appellant states: “[A]ppellant admitted that he was
present at his preliminary hearing when his then attorney was handed a
criminal extract for Rothmiller.” Appellant’s Brief at 20.



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J-S48022-19


       Appellant    next    argues     that    he   established   the   governmental-

interference exception to the PCRA time-bar.                Appellant’s Brief at 40.

Appellant argues there was a Brady7 violation because:

             It is beyond dispute that the Commonwealth had to call
       Rothmiller, its only eyewitness and identification witness, at trial;
       it candidly acknowledged that he was the lynchpin of the case
       against [Appellant], and had entered into an immunity agreement
       with him. By law, the prosecutor was tasked with knowledge of
       Rothmiller’s participation in the Chester County robbery and
       required to provide that information to the defense before trial.
       Yet, there is no evidence to substantiate the proposition that the
       Commonwealth did, indeed, comply with its constitutional
       mandate and serve trial counsel with any information relating to
       Rothmiller’s criminal history. Had trial counsel been provided with
       that prejudicial information, he would have been able to further
       impeach Rothmiller’s already shaky credibility and further sway
       the jury that Rothmiller’s trial testimony was questionable
       because he was trying to help himself, which raises the reasonable
       probability that the proceeding may not have ended in conviction.

Appellant’s Brief at 42.

       In order to meet the statutory requirements of the “governmental

interference” exception to the PCRA’s one-year jurisdictional time-bar,

Appellant was required to plead and prove that his “‘failure to raise the claim

or claims previously was the result of interference by government officials

with the presentation of the claim or claims in violation of the Constitution or

laws of this Commonwealth or the Constitution or laws of the United States....’

42 Pa.C.S.[A.] § 9545(b)(1)(i) (emphasis added).”                 Commonwealth v.



____________________________________________


7 Brady v. Maryland, 373 U.S. 83 (1963) (prosecution’s suppression of
evidence favorable to accused, when requested, is due process violation).

                                          - 14 -
J-S48022-19


Chester, 895 A.2d 520, 523 (Pa. 2006). With regard to an alleged Brady

violation falling within this exception, our Supreme Court explained:

      Although 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. 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. . . . . [W]e clarified that § 9454(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.”.

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

      As the evidence of record reflects, there was no government

interference. Evidence produced at the PCRA evidentiary hearing on April 21,

2017, established that the Commonwealth had presented Rothmiller’s criminal

record to Appellant and his counsel during the preliminary hearing.

Furthermore, if Appellant was unaware of that fact, it is clear that Appellant

could have ascertained this information through due diligence. Abu-Jamal,

941 A.2d at 1268. Thus, we conclude that Appellant has failed to establish

the   governmental-interference      exception    to   the   PCRA     time-bar.

Consequently, because the instant PCRA petition was untimely and no

exceptions apply, the PCRA court lacked jurisdiction to address the claims

presented and grant relief. See Commonwealth v. Fairiror, 809 A.2d 396,


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J-S48022-19


398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to hear

untimely petition).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/26/19




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