J-S83027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :        IN THE SUPERIOR COURT OF
                                                :             PENNSYLVANIA
                                                :
               v.                               :
                                                :
                                                :
    DENNIS A. HOWARD                            :
                                                :
                      Appellant                 :        No. 1522 EDA 2017

                   Appeal from the PCRA Order April 21, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0000672-2007


BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J.

MEMORANDUM BY OLSON, J.:                                   FILED FEBRUARY 06, 2018

        Appellant, Dennis A. Howard, appeals pro se from the order entered on

April 21, 2017, dismissing his third petition filed under the Post-Conviction

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

        On January 29, 2008, a jury found Appellant guilty of first-degree

murder, possession of an instrument of crime, and persons not to possess a

firearm.1 On January 30, 2008, the trial court sentenced Appellant to serve

a mandatory term of life in prison without the possibility of parole for the

first-degree    murder      conviction    and       to    serve   concurrent   terms   of

imprisonment for the remaining convictions.                    We affirmed Appellant’s

judgment of sentence on September 4, 2009 and the Pennsylvania Supreme

____________________________________________


1   18 Pa.C.S.A. §§ 2502(a), 907(a), and 6105, respectively.
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Court denied Appellant’s petition for allowance of appeal on December 29,

2009.     Commonwealth v. Howard, 986 A.2d 1256 (Pa. Super. 2009)

(unpublished memorandum) at 1-3, appeal denied, 987 A.2d 159 (Pa.

2009).

        On July 15, 2010, Appellant filed his first PCRA petition and the PCRA

court    appointed    counsel     to   represent   Appellant      in   the   proceedings.

Ultimately, the PCRA court dismissed Appellant’s PCRA petition and, on

March     19,    2014,     this    Court   affirmed    the     PCRA      court’s    order.

Commonwealth v. Howard, 100 A.3d 312 (Pa. Super. 2014) (unpublished

memorandum) at 1-9.

        Appellant filed his second PCRA petition on April 7, 2014. The PCRA

court dismissed the petition on January 30, 2015, we affirmed the dismissal

on February 19, 2016, and the Pennsylvania Supreme Court denied

Appellant’s     petition   for    allowance   of   appeal    on    August     22,   2016.

Commonwealth v. Howard, 141 A.3d 599 (Pa. Super. 2016) (unpublished

memorandum) at 1-3, appeal denied, ___ A.3d ___, 208 EAL 2016 (Pa.

2016).

        Appellant filed the current PCRA petition – his third – on October 4,

2016.     Within the petition, Appellant acknowledged that his petition was

facially untimely; however, Appellant claimed that his petition fell under the

“governmental interference” exception to the PCRA’s time-bar. Appellant’s

Third PCRA Petition, 10/4/16, at 11; see also 42 Pa.C.S.A. § 9545(b)(1)(i).

Appellant claimed:

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        [Appellant’s] Constitutional right of due process was clearly
        violated when government official[s] violated U.S. Supreme
        Court ruling Brady v. Maryland[, 371 U.S. 812 (1963)]
        refusing to turn over all evidence pertaining to [his] case . .
        . , a full autopsy report was conducted of the [decedent’s]
        internal, external examination, bullet track, pictures of the
        [decedent’s] injuries, entrance [and exit] wounds, video
        recording reduce[d] to writing, body chart. Constitutional
        law 840. Due process. The suppression by the prosecution
        of evidence favorable to and requested by an accused
        violates due process where the evidence is material either
        to guilt or to punishment irrespective of the good or bad
        faith of the prosecution.

Id. at 4 (some internal capitalization omitted).

      Moreover, Appellant claimed that he first learned of his Brady claim

after he filed a request for public records under Pennsylvania’s Right-to-

Know Law (hereinafter “RTKL”).        See 65 P.S. §§ 67.101 et seq.        In

particular, Appellant claimed, on February 25, 2016, he sought the

“[c]ompleted autopsy report of [the decedent], bullet track, external

examination, video recording reduced to writing, physical pictures, [and]

body chart of the victim” in his case.   See Exhibit “A” to Appellant’s Third

PCRA Petition, 10/4/16, at 1.

      On April 4, 2016, the Medical Examiner’s Office “sent a final response

partially denying [Appellant’s right-to-know] request. Among the bases for

the denial, the City asserted the criminal investigative records exemption

found in Section 708(b)(16) of the RTKL.”          Id.   On May 20, 2016, the

appeals officer of the Office of the District Attorney of Philadelphia finally

denied Appellant’s appeal under the RTKL. Id. at 1-3.



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      On February 10, 2017, the PCRA court notified Appellant that it

intended to dismiss his PCRA petition in 20 days, without holding a hearing.

See PCRA Court Order, 2/10/17, at 1; Pa.R.Crim.P. 907(1). The PCRA court

finally dismissed Appellant’s PCRA petition on April 21, 2017 and Appellant

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

Appellant’s patently untimely, serial PCRA petition.

      “As a general proposition, we review a 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. Eichinger, 108 A.3d

821, 830 (Pa. 2014).

      Before this Court can address the substance of Appellant’s claim, we

must determine if this petition is timely.

        [The PCRA requires] a petitioner to file any PCRA petition
        within one year of the date the judgment of sentence
        becomes final.    A judgment of sentence becomes final at
        the conclusion of direct review . . . or at the expiration of
        time for seeking review.

                                      ...

        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), are
        met. A petition invoking one of these exceptions must be
        filed within [60] days of the date the claim could first have
        been presented. 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 [60]-day timeframe.




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Commonwealth v. Lawson, 90 A.3d 1, 4-5 (Pa. Super. 2014) (some

internal citations omitted) (internal quotations omitted).

      In the present case, the PCRA court found Appellant’s petition to be

untimely filed. PCRA Court Opinion, 6/21/17, at 1-8. We agree.

      Appellant’s judgment of sentence became final at the end of the day

on March 29, 2010, which was 90 days after the Pennsylvania Supreme

Court denied Appellant’s petition for allowance of appeal and Appellant’s

time for filing a petition for writ of certiorari to the United States Supreme

Court expired. See 42 Pa.C.S.A. § 9545(b)(3) (“A judgment becomes final

at the conclusion of direct review, including discretionary review in the

Supreme Court of the United States . . . , or at the expiration of time for

seeking the review”); see also U.S. Sup. Ct. R. 13.1. The PCRA explicitly

requires that a petition be filed “within one year of the date the judgment

becomes final.”   42 Pa.C.S.A. § 9545(b)(1).     As such, Appellant had until

March 29, 2011 to file a timely PCRA petition.       Since Appellant filed his

current petition on October 4, 2016, 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 demands that the petitioner properly plead and

prove all required elements of the relied-upon exception).


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      Here, Appellant purports to invoke the “governmental interference”

exception to the time-bar. This statutory exception provides:

        (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[.]

                                      ...

        (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).

      As our Supreme Court has explained, “[a]lthough 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. Stokes, 959 A.2d 306, 310 (Pa. 2008) (“the proper questions with

respect to timeliness [under the governmental interference exception] are

whether the government interfered with [a]ppellant's access to the [files],

and whether [a]ppellant was duly diligent in seeking those files”).




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      Within Appellant’s current petition, Appellant simply does not allege

that government officials interfered with his ability to obtain or access the

documents and Appellant never explains why he could not have obtained the

files at an earlier time (such as at trial).       See Appellant’s Third PCRA

Petition, 10/4/16, at 1-18. Therefore, Appellant failed to properly plead the

governmental interference exception to the PCRA’s one-year time-bar; and,

since Appellant did not attempt to plead any other exception to the time-bar,

we conclude that Appellant’s petition is time-barred and that our “courts are

without jurisdiction to offer [Appellant] any form of relief.” Commonwealth

v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011).

      Therefore, we affirm the PCRA court’s order, which dismissed

Appellant’s third PCRA petition without holding a hearing.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/6/18




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