J-S45005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

BRANDON DANTE BARNES,

                            Appellant                No. 784 WDA 2015


                 Appeal from the PCRA Order of April 17, 2015
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0001507-2010


BEFORE: OLSON, DUBOW AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                                FILED JULY 13, 2016

        Appellant, Brandon Dante Barnes, appeals pro se from the order

entered on April 17, 2015, dismissing his third petition filed pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        On March 3, 2011, Appellant pleaded guilty to murder in the third

degree.1 On April 19, 2011, the trial court sentenced Appellant to serve 20

to 40 years’ imprisonment, in accordance with the terms of the negotiated

plea.     Appellant did not file a notice of appeal from his judgment of

sentence.

        On August 11, 2011, Appellant filed a timely, pro se PCRA petition and

the PCRA court appointed counsel to represent Appellant.            However,
____________________________________________


1
    18 Pa.C.S.A. § 2502(c).



*Retired Senior Judge assigned to the Superior Court.
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appointed counsel petitioned for and was permitted to withdraw. The PCRA

court dismissed Appellant’s PCRA petition without a hearing on January 31,

2012. PCRA Court Order, 1/31/12, at 1. Appellant did not file a notice of

appeal from the PCRA court’s order.

      On December 13, 2012, Appellant filed a second, pro se PCRA petition.

The PCRA court dismissed the petition as untimely on March 5, 2013. PCRA

Court Order, 3/5/13, at 1-2.

      Appellant filed his third PCRA petition on February 25, 2015. Within

this pro se petition, Appellant claimed that “the Commonwealth violated

[Appellant’s] due process rights by withholding material impeaching and

exculpatory evidence at the time of trial, causing [Appellant] to plead

guilty.”     Appellant’s Third PCRA Petition, 2/25/15, at 6.          Specifically,

Appellant claimed:      “[o]n January 18, 2015, [Appellant’s] mother advised

him that his trial attorney, Mr. Matthew Gerald Porsch[,] told her that the

Commonwealth did not turn over the ‘Ballistic Reports’ in this case until after

he had been sentenced.        That the Ballistic Report indicated that the gun

involved in this case ‘misfired.’” Id. at 7.

      Further, Appellant attached to his PCRA petition an affidavit from his

mother, Aisha Barnes. In relevant part, the affidavit declared:

           (2). While in the office of my [son’s] attorney . . . I learned
           that the Ballistic Reports involving the gun alleged in this
           case[ w]ere not provided to my [son’s] attorney . . . until
           after my son had [pleaded] guilty[] and [was] sentenced.




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        (3). My son called me on January 18, 2015. While in
        conversation with my son[,] I told him that his attorney told
        me that the Ballistic [R]eports didn’t come back until after
        trial.

                                     ...

        (5). The attorney told me that the Ballistic Reports indicated
        that the gun misfired.

Affidavit of Aisha Barnes, dated 2/1/15, at 1.

      On April 17, 2015, the PCRA court dismissed Appellant’s third PCRA

petition without a hearing. As the PCRA court explained:

        The [p]etition claims to present “exculpatory evidence that
        has subsequently become available,” yet [Appellant]
        presents no evidence, only the hearsay statement of his
        mother.     [Appellant] has not presented the ballistics[]
        report, affidavit of his counsel, or set forth how a test after
        the fact on the firearm would be determinative of his
        innocence and vitiate a voluntary and knowing plea of
        guilty. Further, there is no evidence as to when this report
        was in fact turned over or what its exact contents are, or
        why he did not or could not have learned of its existence in
        the four (4) years since the entry of his plea. At this point,
        [Appellant] is woefully short of meeting his burden of
        persuasion and proof.

PCRA Court Opinion, 3/13/15, at 1.

      Appellant filed a timely notice of appeal to this Court. We now affirm

the dismissal of Appellant’s patently untimely, serial PCRA petition.

      The PCRA contains a jurisdictional time-bar, which is subject to limited

statutory exceptions.    This time-bar demands that “any PCRA petition,

including a second or subsequent petition, [] be filed within one year of the

date that the petitioner’s judgment of sentence becomes final, unless [the]


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petitioner pleads [and] proves that one of the [three] exceptions to the

timeliness requirement . . . is appropriate.” Commonwealth v. McKeever,

947 A.2d 782, 785 (Pa. Super. 2008); see also 42 Pa.C.S.A. § 9545(b).

Further, since the time-bar implicates the subject matter jurisdiction of our

courts, we are required to first determine the timeliness of a petition before

we are able to consider any of the underlying claims. Commonwealth v.

Yarris, 731 A.2d 581, 586 (Pa. 1999). Our Supreme Court has explained:

        the PCRA timeliness requirements are jurisdictional in
        nature and, accordingly, a PCRA court is precluded from
        considering untimely PCRA petitions.              See, e.g.,
        Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)
        (stating that “given the fact that the PCRA’s timeliness
        requirements are mandatory and jurisdictional in nature, no
        court may properly disregard or alter them in order to reach
        the merits of the claims raised in a PCRA petition that is
        filed in an untimely manner”); Commonwealth v. Fahy,
        737 A.2d 214, 220 (Pa. 1999) (holding that where a
        petitioner fails to satisfy the PCRA time requirements, this
        Court has no jurisdiction to entertain the petition). . . .
        [Timeliness] is a threshold question implicating our subject
        matter jurisdiction and ability to grant the requested relief.

Commonwealth v. Whitney, 817 A.2d 473, 475-76 (Pa. 2003).

      In the case at bar, Appellant’s judgment of sentence became final in

2011. As Appellant did not file his current petition until February 25, 2015,

the current petition is patently untimely and the burden thus fell upon

Appellant to plead and prove that one of the enumerated exceptions to the

one-year time-bar applied to his case.     See 42 Pa.C.S.A. § 9545(b)(1);

Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa. Super. 2008) (to

properly invoke a statutory exception to the one-year time-bar, the PCRA


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demands that the petitioner plead and prove all required elements of the

relied-upon exception).

      Within Appellant’s PCRA petition, Appellant claimed that, at some point

in time, Appellant’s trial counsel told Appellant’s mother “that the Ballistic

Reports involving the gun alleged in this case[ w]ere not provided to my

[son’s] attorney . . . until after my son had [pleaded] guilty[] and [was]

sentenced . . . [and] the Ballistic Reports indicated that the gun misfired.”

Appellant’s Third PCRA Petition, 2/25/15, at 6; Affidavit of Aisha Barnes,

dated 2/1/15, at 1. As Appellant averred, his mother informed him of this

fact on January 18, 2015, during a telephone call.

      Appellant claims that the above allegations satisfy the “governmental

interference” and “after-discovered facts” exceptions to the time-bar. These

statutory exceptions provide:

        (1) Any petition under this subchapter, including a second
        or subsequent petition, shall be filed within one year of the
        date the judgment becomes final, unless the petition alleges
        and the petitioner proves that:

            (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[;]

                                        ...




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        (2) 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.A. § 9545(b).

      To invoke either exception, the petitioner is statutorily required to file

his petition “within 60 days of the date the claim could have been

presented.” Id. Our Supreme Court has explained that – to satisfy this “60-

day requirement” – a petitioner must plead facts demonstrating “when and

how” he discovered the information upon which the claim is based and then

plead facts explaining why “the information could not have been obtained

earlier with the exercise of due diligence.” Commonwealth v. Stokes, 959

A.2d 306, 310-311 (Pa. 2008); Commonwealth v. Breakiron, 781 A.2d

94, 98 (Pa. 2001). Moreover, because the “60-day requirement” of section

9545(b)(2) is a statutory mandate, the pleading rule is “strictly enforced.”

Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010);

Commonwealth v. Vega, 754 A.2d 714, 718 (Pa. Super. 2000).

      In the case at bar, Appellant did not plead: the date upon which his

trial counsel learned of the ballistic reports; the date upon which his mother

learned from his trial counsel about the ballistic reports; or, why Appellant

could not have learned of the existence of the reports sooner.       Therefore,

Appellant did not plead any facts to establish why “the information could not

have been obtained earlier with the exercise of due diligence.”   Stokes, 959

A.2d at 310-311.


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      Appellant has thus failed to plead that he filed his petition “within 60

days of the date the claim could have been presented.”          42 Pa.C.S.A.

§ 9545(b)(2).     As such, our “courts are without jurisdiction to offer

[Appellant] any form of relief.” Commonwealth v. Jackson, 30 A.3d 516,

523 (Pa. Super. 2011).      We affirm the PCRA court’s order, dismissing

Appellant’s third PCRA petition without a hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/13/2016




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