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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                    v.

JAMES MCINTOSH

                         Appellant                   No. 676 EDA 2016


              Appeal from the PCRA Order February 10, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0210661-2001


BEFORE: BOWES, PANELLA AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                         FILED OCTOBER 19, 2016

      James McIntosh appeals from the February 10, 2016 order dismissing

his second PCRA petition as untimely filed. We affirm.

      On August 22, 1994, Appellant, Travis Hall, and several other men

decided to rob Marie’s Variety Store, which contained drugs and cash and

was located in Philadelphia. Travis Hall drove a van carrying his armed co-

conspirators to the targeted location, where Asley Espuet and Skirvy Powell

were present. The assailants pretended to be police conducting a drug raid,

and, when Powell attempted to escape, he was shot three times and

wounded. After taking the money and cash, the cohorts forced Espuet into

the van, and, during their escape, shot and killed him.




* Retired Senior Judge assigned to the Superior Court.
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      In 1996, Travis Hall was arrested in connection with a federal

prosecution involving a bank robbery.          Powell told authorities about the

events of August 22, 1994; as a result, Appellant was taken into custody in

2000 for his participation in the crimes.        In July 2002, a jury convicted

Appellant    of   second-degree   murder,       robbery,     aggravated     assault,

kidnapping, criminal conspiracy, and possession of an instrument of crime.

The court sentenced Appellant to life imprisonment for murder and a

concurrent, aggregate term of twenty-seven and one-half to fifty-five years

incarceration for the other offenses.

      After sentencing, Appellant filed a direct appeal, in which we affirmed,

Commonwealth         v.   McIntosh,      849    A.2d   607     (Pa.Super.    2004)

(unpublished memorandum).         His subsequent petition for allowance of

appeal was denied. Commonwealth v. McIntosh, 860 A.2d 489 (Pa.

2004). While Appellant did not seek review in the United States Supreme

Court, he filed a timely PCRA petition. Counsel was appointed and filed an

amended PCRA petition. Relief was ultimately denied, and we affirmed on

appeal.     Commonwealth v. McIntosh, 964 A.2d 440 (Pa.Super. 2008)

(unpublished memorandum), appeal denied, 980 A.2d 110 (Pa. 2009).

      Appellant filed his second PCRA petition on August 23, 2012, and

amended it on April 5, 2013. After the court issued notice of its intent to

dismiss the petitions without a hearing, Appellant responded with another

amendment to the PCRA petition on July 5, 2015. On November 30, 2015,

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Appellant filed a document that we will construe as a third amendment to

the PCRA petition. This appeal followed the February 10, 2016 dismissal of

Appellant’s petition for PCRA relief as time barred.

       Appellant’s brief does not contain a statement of issues involved;

hence, we summarize his appellate positions: 1) he is entitled to relief under

the Supreme Court’s pronouncement in Miller v. Alabama, 132 S.Ct. 2455

(2012); 2) he properly invoked an exception to PCRA’s time constraints

when he averred that the Commonwealth withheld exculpatory evidence

relating to Commonwealth witnesses James Robert and Travis Hall; and 3)

he satisfied the newly-discovered evidence exception in the November 30,

2015 filing.1

       Initially, we observe that this Court reviews the “denial of PCRA relief

to determine whether the findings of the PCRA court are supported by the

record and free of legal error.” Commonwealth v. Roane, 142 A.3d 79, 86

(Pa. Super. 2016) (quoting Commonwealth v. Treiber, 121 A.3d 435, 444

(Pa. 2015)). Herein, the PCRA court dismissed Appellant’s PCRA petition as

untimely.



____________________________________________


1
  We note that Appellant does not fully develop his latter two positions in his
appellate brief, and instead, continually refers us to filings that he made in
the trial court. While we could deem those issues waived, in the interests of
justice we have endeavored to address them in a cogent manner.



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     All PCRA petitions must be filed within one year of the date a

defendant’s judgment becomes final unless an exception to the one-year

time restriction applies. 42 Pa.C.S. § 9545(b)(1).     If a PCRA petition is

untimely, “neither this Court nor the trial court has jurisdiction over the

petition.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014).

(citation omitted); see also Commonwealth v. Chester, 895 A.2d 520,

522 (Pa. 2006).

     To calculate the one-year filing deadline, we first determine when

Appellant’s judgment of sentence became final. “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.”         42 Pa.C.S. §

9545(b)(3).   Appellant’s petition for allowance of appeal was denied on

September 14, 2004, and, since he did not seek review with the United

States Supreme Court, his judgment of sentence became final ninety days

thereafter, or on December 13, 2004. Miller, supra (where our Supreme

Court denies allowance of appeal and no further review is sought, a

defendant’s sentence becomes final when the ninety-day period for filing a

petition for a writ of certiorari expires). Appellant had until December 13,

2005, to file a timely PCRA petition, and the instant petition, presented in

2012 and amended during 2013 and 2015, is patently untimely. There are

three exceptions to the one-year time bar of § 9545:

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        (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-iii). “Any petition invoking an exception provided

in paragraph (1) shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

       Appellant first seeks relief under Miller v. Alabama, supra, which

was made fully retroactive in Montgomery v. Louisiana, 136 S.Ct. 718

(2016).2    Miller held that it was unconstitutional to impose a mandatory

term of life imprisonment without parole on juvenile homicide offenders.

Appellant asserts that the case created a newly-recognized constitutional

right applicable to him and his claim falls within the exception contained in §

9545(b)(1)(iii). The record establishes that Appellant was born in 1953 and

was forty-one years old in 1994, when these crimes were committed.

Appellant maintains that Miller has language suggesting that it may apply to
____________________________________________


2
 We observe that the Miller claim was presented in the 2012 PCRA petition,
and was facially timely.



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adults and that it should under the equal protection clause.            However,

Miller’s holding was firmly premised upon the unique characteristics of a

juvenile’s mind in contrast to that of an adult.      It does not imply to any

extent that adults cannot be sentenced to a mandatory term of life

imprisonment without parole.         See Commonwealth v. Cintora, 69 A.3d

759 (Pa.Super. 2013) (Miller inapplicable to a defendants who were

nineteen and twenty-one when they committed murders).                   We reject

Appellant’s equal protection argument as wholly undeveloped, and thus

conclude that PCRA relief was properly denied in connection with Appellant’s

invocation of Miller.

      Appellant also asserts that the Commonwealth violated Brady v.

Maryland, 373 U.S. 83 (1963), by withholding evidence regarding two

Commonwealth witnesses. “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.” Commonwealth v. Abu-Jamal,

941 A.2d 1263, 1268 (Pa. 2008); see also Commonwealth v. Porter, 35

A.3d 4 (Pa. 2012).

      In   his   April   5,   2013   amendment,   Appellant   averred    that   the

Commonwealth violated Brady by withholding evidence that Commonwealth

witness James Roberts, who was arrested on February 24, 2011 for a

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murder committed on February 1, 1999, was under investigation for that

crime when he testified at Appellant’s 2002 trial. Appellant would have us

surmise that the Commonwealth knew in 2002 that Roberts committed the

1999 murder, even though Roberts was not arrested until 2011, and that

this fact should have been disclosed to him for impeachment purposes.

      Appellant provides not a scintilla of proof that the Commonwealth

knew in 2002 that Roberts committed the 1999 crime and shielded that fact

from him. Bare assertions that the government was in possession of and hid

evidence from a defendant, when those assertions are unaccompanied by

any type of support, are insufficient to invoke the governmental interference

exception.   Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008).

Additionally, Roberts was arrested in 2011, and this Brady claim was first

presented in 2013.      Appellant did not properly invoke the governmental

interference exception for the additional reason that he failed to establish

that he exercised due diligence in presenting this claim.

      Appellant’s next issue on appeal concerns Travis Hall. In his July 5,

2015 amendment, Appellant raised another Brady violation by contending

that he should have been informed by the prosecution that, during the 1996

federal bank robbery investigation, Hall gave a statement similar to the one

herein, i.e., Hall told police that he had driven the get-away car.          See

Commonwealth       v.   Roney,    79    A.3d   595   (Pa.   2013)   (where   the

Pennsylvania Supreme Court set forth the contents of Hall’s 1996 statement

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about his involvement in the bank robbery). Appellant asserts that he could

have impeached Hall with the statement made in connection with the federal

bank robbery.

        In his July 5, 2015 amendment, Appellant averred that he first learned

about Hall’s 1996 statement on June 9, 2015, from an unidentified jailhouse

source.     Not only was the Roney decision, which clearly outlined the

contents of Hall’s statement, published on October 30, 2013, Appellant knew

about Hall’s involvement in the 1996 bank robbery because it was revealed

at Appellant’s 2002 trial that Hall was prosecuted and sentenced in that

matter.     Appellant proffers no explanation as to why, employing due

diligence, he could not have discovered Hall’s 1996 statement before June 9,

2015.     Hence, we conclude that the governmental interference exception

does not apply to this claim.

        Appellant’s final position is that he properly invoked the newly-

discovered facts exception in his November 30, 2015 amendment.            This

exception “requires petitioner to allege and prove that there were ‘facts’ that

were ‘unknown’ to him and that he exercised ‘due diligence’” in discovered

those facts. Commonwealth v. Bennett, 930 A.2d 1264, 1270 (Pa. 2007).

Appellant’s averment relates to a June 29, 2015 affidavit, which was filed of

record herein on November 30, 2015, from Richard Rasheed Corbin, a fellow

inmate. Therein, Corbin attested that James Roberts told Corbin that he lied

at Appellant’s trial. This claim is premised upon a hearsay statement made

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by Roberts to Corbin. As our High Court articulated in Abu-Jamal, supra at

1269, “a claim based on inadmissible hearsay does not implicate” the newly

discovered evidence exception.     Additionally, Appellant did not raise his

claim within sixty days of when it first could have been presented. Corbin’s

affidavit is dated March 28, 2015, and it was given to defendant on June 29,

2015.     Appellant did not present his claim based upon the affidavit until

November 30, 2015, which was outside the sixty days permitted under §

9545(b)(2).

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/19/2016




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