J-S19041-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  Appellee              :
                                        :
          v.                            :
                                        :
BIRDELL BROCKINGTON,                    :
                                        :
                  Appellant             :    No. 2249 EDA 2018

               Appeal from the PCRA Order Entered June 27, 2018
                  in the Court of Common Pleas of Lehigh County
               Criminal Division at No(s): CP-39-CR-0002736-1997

BEFORE:        LAZARUS, J., KUNSELMAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                      FILED JUNE 12, 2019

     Birdell Brockington (Appellant) pro se appeals from the June 27, 2018

order denying his petition filed under the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546. We affirm.

           [Appellant’s] convictions stem from an incident on August
     2, 1997, when he and Kevin Taylor burglarized the home of
     Bruce Kight in order to steal personal items from him, and
     subsequently, Taylor shot Kight numerous times, killing him. On
     May 22, 1998, a jury convicted [Appellant] of first-degree
     murder, burglary, criminal trespass, theft by unlawful taking,
     and five counts of criminal conspiracy. Four days later, he was
     sentenced to an aggregate term of life imprisonment. A panel of
     this Court affirmed the judgment of sentence on July 31, 2000,
     and the Pennsylvania Supreme Court denied allowance of appeal
     on December 14, 2000. See Commonwealth v. Brockington,
     764 A.2d 1119 [] (Pa. Super. 2000) (unpublished
     memorandum), appeal denied, 764 A.2d 1064 (Pa. 2000).




* Retired Senior Judge assigned to the Superior Court.
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Commonwealth v. Brockington, 159 A.3d 590 at *1 (Pa. Super 2016)

(unpublished memorandum at 1).            Appellant’s first two PCRA petitions

resulted in no relief.

         Appellant filed the petition that is the subject of the instant appeal on

May 14, 2018.        Therein, Appellant argued that he was entitled to relief

because the trial court had given an erroneous jury instruction at Appellant’s

trial.    Pro se PCRA Petition, 5/14/2018.         Appellant claimed that two

timeliness exceptions applied to this otherwise untimely-filed third PCRA

petition. Id.

         The PCRA court issued a notice of its intent to dismiss Appellant’s

petition without a hearing, to which Appellant filed a response in opposition.

On June 27, 2018, the PCRA court entered an order dismissing Appellant’s

petition as an untimely-filed petition that failed to meet any timeliness

exception. Appellant filed a notice of appeal,1 and both Appellant and the

PCRA court complied with Pa.R.A.P. 1925.




1
  The record contains two notices of appeal, both appealing the PCRA court’s
June 27, 2018 order denying Appellant’s petition. See Notice of Appeal,
7/19/2018; Notice of Appeal, 7/31/2018. These notices of appeal are
materially similar, although Appellant’s July 31, 2018 notice of appeal
contains a certificate of service that his first notice of appeal lacks. Id. This
second notice of appeal was presumably filed to perfect the first. While the
latter notice of appeal was filed more than thirty days after the PCRA court’s
order, this is of no moment, as Appellant’s first, timely-filed notice of appeal
invoked this Court’s jurisdiction. See Commonwealth v. Williams, 106
A.3d 583 (Pa. 2014) (holding that a timely notice of appeal, irrespective if it
is otherwise defective, triggers the jurisdiction of the appellate court).

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     Before we may consider the issues Appellant presents on appeal for

our review, we must first determine whether Appellant has timely filed his

PCRA petition, as neither this Court nor the PCRA court has jurisdiction to

address the merits of an untimely-filed petition.   See Commonwealth v.

Lewis, 63 A.3d 1274, 1280-81 (Pa. Super. 2013) (quoting Commonwealth

v. Chester, 895 A.2d 520, 522 (Pa. 2006)) (“[I]f a PCRA petition is

untimely, neither this Court nor the [PCRA] court has jurisdiction over the

petition. Without jurisdiction, we simply do not have the legal authority to

address the substantive claims.”).

     Any PCRA petition, including second and subsequent petitions, must

either (1) be filed within one year of the judgment of sentence becoming

final, or (2) plead and prove a timeliness exception. 42 Pa.C.S. § 9545(b).2

     “For purposes of [the PCRA], 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). In this case, our Supreme Court denied Appellant’s petition




2
  There are also time restrictions on when a petitioner must file a petition
after a time-bar-exception claim has arisen. See 42 Pa.C.S. § 9545(b)(2).
On October 24, 2018, the General Assembly amended subsection 9545(b)(2)
in order to extend the time for filing a petition from 60 days to one year
from the date the claim could have been presented. See 2018
Pa.Legis.Serv.Act 2018-146 (S.B. 915), effective December 24, 2018.

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for allowance of appeal on December 14, 2000. Thus, Appellant’s May 14,

2018 petition is facially untimely.

      Nevertheless, we may consider an untimely-filed PCRA petition if

Appellant pleaded and proved one of three exceptions set forth in 42 Pa.C.S.

§ 9545(b)(1)(i-iii). Here, although inarticulately stated in his pro se PCRA

petition and his brief on appeal, Appellant’s petition arguably asserts the

newly-discovered evidence and retroactively-applied constitutional right

exceptions found at 42 Pa.C.S. § 9545(b)(1)(ii) (providing an exception

where “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”) and 42 Pa.C.S. § 9545(b)(1)(iii) (providing an exception where

“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”).        Specifically, Appellant relies upon Bennett v.

Superintendent Graterford SCI, 886 F.3d 268, 288 (3d Cir. 2018)

(holding “that the trial court’s jury instructions[ on conspiracy and

accomplice    liability   were   deficient insomuch as    they]   relieved the

Commonwealth of its burden of proving that Bennett had the specific intent

to kill, in violation of his right to due process under the United States

Constitution”).    Upon review, we find Appellant has not satisfied either

exception.


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J-S19041-19

      First, we reiterate that our Courts have expressly rejected the notion

that judicial decisions can be considered newly-discovered facts which would

invoke   the   protections       afforded   by    subsection   9545(b)(1)(ii).   See

Commonwealth v. Watts, 23 A.3d 980, 986 (Pa. 2011) (holding a judicial

opinion does not qualify as a previously unknown “fact” capable of triggering

the timeliness exception set forth in section 9545(b)(1)(ii) of the PCRA;

“[sub]section 9545(b)(1)(ii) applies only if the petitioner has uncovered facts

that could not have been ascertained through due diligence, and judicial

determinations are not facts”); Commonwealth v. Brandon, 51 A.3d 231,

235 (Pa. Super. 2012) (same).

      Secondly, in order to satisfy the retroactively-applied constitutional

right exception, Appellant must allege a constitutional right that was

recognized by our Supreme Court or the United States Supreme Court and

has been held to apply retroactively. 42 Pa.C.S. § 9545(b)(1)(ii). Bennett

does not meet any of these requirements.              Bennett was decided by the

Third Circuit Court of Appeals, not the Pennsylvania Supreme Court or the

United States Supreme Court and our independent review confirms that

neither Court has recognized Bennett as establishing a new constitutional

right3 nor has held any purported right to apply retroactively.



3
  We agree with the PCRA court’s reading of Bennett insomuch as it
determined that Bennett did not establish a new constitutional right. See
PCRA Court Opinion, 9/6/2018, at 5. To the contrary, Bennett merely
found that the jury instruction given at Bennett’s trial was deficient based on
(Footnote Continued Next Page)

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      Based upon the foregoing, we conclude Appellant’s petition was

untimely filed and he did not satisfy an exception to the timeliness

requirements.      Thus, the PCRA court lacked jurisdiction to review his

petition, and he is not entitled to relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/12/19




(Footnote Continued)   _______________________

existing due process rights.       See Bennett, supra 886      F.3d at 288
(concluding “that the trial court’s jury instructions         relieved the
Commonwealth of its burden of proving that Bennett had the    specific intent
to kill, in violation of his right to due process under the   United States
Constitution”).

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