J-S38006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                  Appellee                :
                                          :
            v.                            :
                                          :
KEITH ALEXANDER                           :
                                          :
                  Appellant               :        No. 2216 EDA 2016

                Appeal from the PCRA Order June 21, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0702301-2002


BEFORE:    GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*

JUDGMENT ORDER BY GANTMAN, P.J.:                        FILED JULY 25, 2017

     Appellant, Keith Alexander, appeals pro se from the order of the

Philadelphia County Court of Common Pleas, which dismissed as untimely his

third petition filed under the Post Conviction Relief Act (“PCRA”), at 42

Pa.C.S.A. §§ 9541-9546.      Appellant’s first jury trial ended in a mistrial on

June 11, 2004.   On April 1, 2005, after his second trial, a jury convicted

Appellant of attempted murder, aggravated assault,            conspiracy, and

firearms not to be carried without a license. The court sentenced Appellant

on May 20, 2005, to an aggregate term of 26½ to 56 years’ imprisonment.

This Court affirmed the judgment of sentence on March 20, 2007, and our

Supreme Court denied allowance of appeal on October 24, 2007.              See

Commonwealth v. Alexander, 928 A.2d 1117 (Pa.Super. 2007), appeal

denied, 594 Pa. 693, 934 A.2d 1275 (2007).        Appellant sought no further
___________________________

*Former Justice specially assigned to the Superior Court.
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direct review.   Between 2007 and 2013, Appellant unsuccessfully litigated

two PCRA petitions.

      Appellant filed the current pro se PCRA petition on October 22, 2015,

and an amended pro se petition on November 2, 2015, seeking relief under

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The PCRA court issued Pa.R.Crim.P. 907 notice on April 19, 2016. Appellant

responded pro se on May 5, 2016, and the PCRA court denied relief on June

21, 2016. Appellant timely filed a pro se notice of appeal on June 29, 2016.

No Pa.R.A.P. 1925(b) statement was ordered or filed.

      The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016).                      A PCRA

petition, including a second or subsequent petition, shall be filed within one

year of the date the underlying judgment of sentence becomes final.              42

Pa.C.S.A. § 9545(b)(1).       A judgment of sentence 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 the review.” 42 Pa.C.S.A. § 9545(b)(3). The

statutory   exceptions   to    the   PCRA    time-bar   allow   for   very   limited

circumstances which excuse the late filing of a petition; a petitioner

asserting a timeliness exception must file a petition within 60 days of when

the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(1-2).

      To invoke the “governmental interference” statutory exception at


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Section 9545(b)(1)(i), 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. Abu-Jamal, 596 Pa. 219,

227, 941 A.2d 1263, 1268 (2008), cert. denied, 555 U.S. 916, 129 S.Ct.

271, 172 L.Ed.2d 201 (2008).             To invoke the “new facts” statutory

exception, the petitioner must plead and prove: “[T]he facts upon which the

claim is predicated were unknown to the petitioner and could not have been

ascertained   by   the   exercise   of   due   diligence[.]”   42   Pa.C.S.A.   §

9545(b)(1)(ii).

      Instantly, Appellant’s judgment of sentence became final on or about

January 22, 2008, following expiration of the 90-days for filing a petition for

certiorari with the U.S. Supreme Court. See U.S.Sup.Ct. Rule 13. Appellant

filed the current pro se PCRA petition on October 22, 2015, more than seven

years after his judgment of sentence became final, which is patently

untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant attempts to invoke the

“governmental interference” exception to the statutory time-bar per Section

9545(b)(1)(i), claiming the prosecution withheld exculpatory evidence from

Appellant at his second trial in violation of Brady.       Specifically, Appellant

avers the prosecution withheld a police officer memorandum, investigative

report, and two eyewitness statements, one of which exonerates Appellant.

The record belies Appellant’s contentions. Appellant’s trial counsel received


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the evidence at issue prior to Appellant’s second trial, specifically referenced

the “withheld” evidence at trial, and discussed the eyewitness statement at

length.    (See N.T. Trial, 3/31/05, at 145-54.)1       To the extent Appellant

attempts to invoke the “new facts” exception, this claim also fails because

the “withheld” evidence was known to Appellant at the time of trial. See 42

Pa.C.S.A. § 9545(b)(1)(ii).2          Therefore, Appellant’s third PCRA petition

remains time-barred, and the PCRA court lacked jurisdiction to review it.

Accordingly, we affirm.

       Ordered affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/25/2017

____________________________________________


1
  Detective Puente was the assigned detective of this case.         Prior to
Appellant’s first trial, detective Puente misplaced his case file, which he
thought had been destroyed. After Appellant’s mistrial, but before his
second trial, detective Puente located the case file, which contained the
evidence at issue, and provided it to trial counsel.
2
  For this reason, Appellant also failed to satisfy the 60-day rule. See 42
Pa.C.S.A. § 9545(b)(2). Further, Appellant’s ineffective assistance of trial
counsel claim does not qualify as an exception to the statutory timeliness
requirement. See Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 753
A.2d 780 (2000) (holding that ineffectiveness of counsel claims generally do
not constitute exceptions to PCRA time requirements).



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