J-S41036-16


                                  2016 PA Super 148

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DWAYNE BROWN,

                            Appellant                 No. 1307 EDA 2015


                   Appeal from the PCRA Order March 20, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0307362-1996

BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                            FILED JULY 11, 2016

        Dwayne Brown (“Appellant”) appeals from the order entered in the

Court of Common Pleas of Philadelphia County dismissing his fourth petition

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

as untimely filed. Herein, Appellant contends it is unconstitutional to apply

the PCRA timeliness provisions to bar a petition bringing a “gateway claim of

actual innocence”1 under Brady v. Maryland, 373 U.S. 83 (1963), and he

argues the court erred in dismissing his petition without a review of the

entire record. We affirm.

        The PCRA court aptly describes the procedural history of this case as

follows:

____________________________________________


1
    See Appellant’s brief at 6.



*Former Justice specially assigned to the Superior Court.
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     On November 10, 1997, following a jury trial before Judge Jane
     Cutler Greenspan,[ ] Petitioner was found guilty of murder of the
     first degree, possessing an instrument of crime, criminal
     conspiracy, and attempted murder. Petitioner was sentenced to
     life imprisonment for murder of the first degree and to
     concurrent terms of ninety-six (96) months to twenty (20) years
     on the attempted murder charge and five (5) to ten (10) years
     on the criminal conspiracy charge.[ ] No further penalty was
     imposed for possessing an instrument of crime. . . .

     Petitioner subsequently filed a direct appeal claiming ineffective
     assistance of counsel. On May 28, 1999, the Pennsylvania
     Superior Court affirmed the judgments of sentence.[ ] The
     Pennsylvania Supreme Court denied Petitioner’s petition for
     allowance of appeal on January 14, 2000.[ ]            Petitioner’s
     judgment of sentence became final on June 12, 2000, when his
     petition for certiorari with the U.S. Supreme Court was denied.[ ]

     Petitioner filed a timely pro se PCRA petition on December 5,
     2000.[ ]     Counsel was subsequently appointed and filed an
     Amended Petition which alleged after-discovered evidence,
     specifically, that Jermaine Brute (also known as Yassin
     Mohamad), who testified for the Commonwealth at trial, wished
     to recant his trial testimony. Following a PCRA hearing on
     October 16, 2001, this court dismissed Petitioner’s claims as
     meritless and denied PCRA relief on November 30, 2001.
     Petitioner appealed, and the Superior Court affirmed the court’s
     decision.[ ] The Pennsylvania Supreme Court denied Petitioner’s
     petition for allowance of appeal on June 3, 2003.[ ]

     Petitioner filed his second pro se PCRA petition on July 20, 2005.
     It was dismissed as untimely on April 17, 2006.

     On June 13, 2007 Petitioner filed his third counseled PCRA
     petition. He invoked the after-discovered evidence exception to
     time-bar and introduced a letter from Yassin Mohamad to
     Attorney Cheryl J. Strum (dated April 16, 2007) in which
     Mohamad express readiness to recant his trial testimony.[ ] On
     October 9, 2007, Petitioner filed an Amended PCRA petition
     introducing a summary of an interview with Rasheed Simpson
     conducted by a defense private investigator on August 14, 2007
     (in which Simpson recanted his statements to police with regard
     to Petitioner’s confession about killing Police Officer Porter).[ ]
     On March 10, 2008, Petitioner’s third PCRA petition was

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J-S41036-16


      dismissed as previously litigated in Petitioner’s first PCRA
      petition. On January 21, 2009, the Superior Court affirmed.[ ]
      Petitioner did not seek further appellate review.

      On July 29, 2013, Petitioner filed his fourth PCRA petition
      through his counsel Cheryl J. Sturm. On December 12, 2014,
      the Commonwealth filed a Motion to Dismiss. On February 3,
      2015, [the PCRA court] issued a Notice Pursuant to Pennsylvania
      Rule of Criminal Procedure 907 advising Petitioner of [the PCRA
      court’s] intent to dismiss the petition in twenty (20) days from
      the date of the Notice. On March 18, 2015, Petitioner filed a
      belated Opposition to Commonwealth’s Motion to Dismiss PCRA
      Petition and to the 907 Notice. On March 20, 2015, following a
      review of the pleadings, record, evidence and argument of
      counsel, [the PCRA court] issued an Order dismissing the
      Petitioner’s PCRA petition as untimely filed. On April 13, 2015,
      Petitioner filed a timely Notice of Appeal.

PCRA Court Opinion, filed July 24, 2015, at 1-4 (footnotes omitted).

      Appellant presents two questions for our review:

      I.    WHETHER THE STATUTORY CONSTRUCTION ACT MAKES
            IT FACIALLY UNCONSTITUTIONAL TO APPLY THE PCRA’S
            TIMELINESS PROVISIONS TO A BRADY CLAIM OR A CLAIM
            THAT A BRADY VIOLATION LED TO THE CONVICTION OF
            AN INNOCENT PERSON?

      II.   WHETHER THE PCRA COURT DENIED DUE PROCESS OF
            LAW GUARANTEED BY THE STATE AND FEDERAL
            CONSTITUTIONS WHEN IT DENIED THE PCRA PETITION
            WITHOUT A REVIEW OF THE ENTIRE RECORD?

Appellant’s brief at 2.

             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), appeal denied, 615 Pa. 784, 42 A.3d 1059 (2012)
      (citing Commonwealth v. Berry, 877 A.2d 479, 482 (Pa.Super.
      2005)). The PCRA court's findings will not be disturbed unless
      there is no support for the findings in the certified record. Id.



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J-S41036-16


     (citing Commonwealth v. Carr, 768 A.2d 1164, 1166
     (Pa.Super. 2001)).
            It is undisputed that a PCRA petition must be filed within
     one year of the date that the judgment of sentence becomes
     final. 42 Pa.C.S.A. § 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. Murray, 562 Pa. 1, 753 A.2d 201, 203
     (2000).      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.A. § 9545(b)(3).
            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.A. § 9545(b)(1)(i), (ii), and (iii), is met. [] A petition
     invoking one of these exceptions must be filed within sixty days
     of the date the claim could first have been presented. 42
     Pa.C.S.A. § 9545(b)(2). In order to be entitled to the exceptions
     to the PCRA's one-year filing deadline, “the petitioner must plead
     and prove specific facts that demonstrate his claim was raised
     within the sixty-day time frame” under section 9545(b)(2).
     Carr, 768 A.2d at 1167.

Commonwealth v. Hernandez, 79 A.3d 649, 651-52 (Pa.Super. 2013).

     First, Appellant contends it is unconstitutional to apply the PCRA

timeliness provisions to a PCRA petition bringing a claim of actual innocence

under Brady.     To support this proposition, he cites to McQuiggan v.

Perkins, 133 S.Ct. 1924 (2013), in which the United States Supreme Court

held that petitioners who assert a convincing actual innocence claim may

thereby invoke the miscarriage of justice exception to overcome the federal

habeas corpus statute of limitations.     Our jurisprudence, however, has

already deemed such decisions pertaining to federal habeas corpus law

irrelevant to our construction of the timeliness provisions set forth in the


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J-S41036-16



PCRA.    See Commonwealth v. Saunders, 60 A.3d 162, 165 (Pa.Super.

2013) (“While Martinez [v. Ryan, 132 S.Ct. 1309 (2012)] represents a

significant development in federal habeas corpus law, it is of no moment

with respect to the way Pennsylvania courts apply the plain language of the

time bar set forth in section 9545(b)(1) of the PCRA.”). While McQuiggan

represents a further development in federal habeas corpus law, as was the

case in Saunders, this change in federal law is irrelevant to the time

restrictions of our PCRA.          Because Appellant’s fourth PCRA is patently

untimely, and he has not met his burden of establishing an exception to the

PCRA’s time-bar, the PCRA court properly determined that it lacked

jurisdiction to address the Brady claims he raised. See Commonwealth v.

Porter, 5 A.3d 4, 21-22 (Pa. 2012) (applying PCRA time-bar to petitioner’s

Brady petition).       We therefore affirm the PCRA court’s order denying

Appellant post-conviction relief.2

       Order is AFFIRMED.




____________________________________________


2
   Given our determination that the PCRA court lacked jurisdiction to
entertain the present petition, Appellant cannot prevail on his second claim
in which he asserts a merits-based denial of due process from the PCRA
court’s alleged failure to review the entire record before dismissing his
petition.



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J-S41036-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/11/2016




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