J-S34012-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                   v.

ROBERT FELTS

                         Appellant                 No. 2127 EDA 2016


                Appeal from the PCRA Order June 15, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0901423-2001


BEFORE: BOWES, SOLANO, AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                             FILED JULY 14, 2017

     Robert Felts appeals from the order denying his third pro se PCRA

petition as untimely. We affirm.

     This matter arose from a June 2001 robbery that resulted in the

shooting death of one of the three victims. On February 4, 2003, following a

jury trial, Appellant was convicted of first-degree murder, three counts of

robbery, burglary, conspiracy, a violation of the Uniform Firearms Act,

possession of an instrument of crime, and two counts of recklessly

endangering another person. Thereafter, the court sentenced Appellant to

life imprisonment for first-degree murder, and concurrent sentences for the

remaining convictions.    Appellant filed an appeal to this Court, and we

affirmed his judgment of sentence.    Commonwealth v. Felts, 855 A.2d


* Retired Senior Judge specially assigned to the Superior Court.
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130   (Pa.Super.    2004)    (unpublished    memorandum),       appeal    denied

Commonwealth v. Felts, 860 A.2d 121 (Pa. 2004).

      Appellant filed two previous PCRA petitions, neither of which garnered

relief. Appellant’s second such petition, filed on December 14, 2009, raised,

inter alia, a claim that trial counsel was ineffective for failing to investigate

the criminal history of one of the prosecution’s witnesses, and the purported

getaway driver, Marcus Gibson.      The PCRA court dismissed the petition as

untimely, and we affirmed.        Commonwealth v. Felts, 60 A.3d 572

(Pa.Super. 2012) (unpublished memorandum).

      Appellant, acting pro se, filed the instant PCRA petition, his third, on

August 21, 2012.       Appellant asserted a claim pursuant to Miller v.

Alabama, 132 S.Ct. 1733 (2012). On March 5, 2013, Appellant abandoned

that challenge and amended his petition to assert a violation of Brady v.

Maryland, 373 U.S. 83 (1963). Appellant contended that the prosecution

withheld evidence of Mr. Gibson’s criminal history, and sought discovery to

further pursue the matter.       Appellant also relied on this assertion to

overcome the PCRA’s statutory time-bar, stating that the Commonwealth’s

failure to disclose this evidence constituted unconstitutional government

interference.   The PCRA court issued a Rule 907 notice of its intent to

dismiss the petition, and, on June 15, 2016, dismissed Appellant’s petition

as untimely. This timely appeal followed.

      Appellant raises two questions for our review:

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   I.       Did the PCRA court err in refusing to permit discovery so as to
            demonstrate a Brady violation?

   II.      Can 42 Pa.C.S. § 9543.1 be reconciled with Brady insofar as
            it limits discovery requests to DNA testing?

Appellant’s brief at 4 (unnecessary capitalization omitted).

         We have long held that all PCRA petitions, including subsequent

petitions, must be filed within one year of the date that a defendant’s

judgment becomes final unless an exception to the one-year time restriction

applies. 42 Pa.C.S. § 9545(b)(1). This time-bar is jurisdictional in nature.

As such, 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). Whether a petition is timely is

a question of law. Thus, our standard of review is de novo and our scope of

review is plenary.        Commonwealth v. Hudson, 156 A.3d 1194, 1197

(Pa.Super. 2017).

         When a PCRA petition is untimely, the petitioner must plead and prove

that one of the statutory exceptions applies.      Id. If no exception applies,

then the petition must be dismissed, as this Court cannot consider its merits.

Id. The PCRA sets forth the relevant provisions as follows:

         (b) Time for filing petition.-

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



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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 law of the United States;

              ii.   the facts upon which the claim is predicated were
                    unknown to the petition 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.

          (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. § 9545(b)(1) and (2).

      Here, Appellant’s petition for allowance of appeal to the Pennsylvania

Supreme Court was denied on September 17, 2004. Thus, his judgment of

sentence became final on December 16, 2004, following the expiration of his

ninety-day allowance to petition the United States Supreme Court for

review.   See Commonwealth v. Felts, 60 A.3d 572 (Pa.Super. 2012)

(unpublished memorandum) at *7. Appellant had until December 16, 2005,

to file a timely PCRA petition. However, he filed the instant PCRA petition on

August 21, 2012, rendering his petition facially untimely. In order for this

Court to have jurisdiction over this matter, Appellant must plead and prove

one of the three statutory exceptions specified above.




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      In order to overcome the PCRA time-bar, Appellant pled that the

Commonwealth’s failure to disclose evidence of Mr. Gibson’s alleged criminal

history violated the dictates of Brady, supra. Appellant’s allegation in this

regard is that he could not have raised this claim in a timely PCRA petition

because the Commonwealth withheld the evidence.             He supports this

contention by referring to testimony offered at trial. Essentially, Appellant

avers that he identified Mr. Gibson to the police as an accomplice in his

crimes relying on a photograph they provided. That photograph was marked

with a “PP-number,” or police photo number.        Appellant’s brief at 9-10.

However, Mr. Gibson was not arrested until two days after Appellant

identified him. Thus, he claims that Mr. Gibson must have had a prior arrest

record, otherwise the police would not have allocated him a PP-number, and

the Commonwealth violated Brady when it did not apprise him of that

information.

      We find that Appellant has not satisfied the requirements necessary to

establish the government interference exception to the statutory time-bar.

In his brief, Appellant states that, at the conclusion of trial, he “informed

trial counsel of his belief [that Mr. Gibson] had a criminal record.” Id. at 7.

Appellant has long suspected that Mr. Gibson had a criminal history.        As

such, Appellant could have raised a claim that the Commonwealth violated

Brady on direct appeal or during his first timely PCRA petition, which he

filed on August 11, 2006. Indeed, Appellant raised a claim that trial counsel

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was ineffective for failing to investigate Mr. Gibson’s suspected criminal

history, relying on the same evidence of record that he presents herein, in

his second PCRA petition filed on December 14, 2009.           PCRA Petition,

12/14/09, at 20-22.

      Appellant did not introduce the instant Brady claim until he filed an

amended third PCRA petition on March 5, 2013, more than a decade after

his trial, and nearly seven years after his initial PCRA petition.        See

Amended PCRA Petition, 3/5/13, at 3-4.       Even though an alleged Brady

violation may constitute a viable claim of government interference for the

purpose of the PCRA’s statutory time-bar, see Commonwealth v. Abu-

Jamal, 941 A.2d 1263, 1268 (Pa. 2008), Appellant has not proven that he

filed his petition within sixty-days of the date that the claim could have been

presented.    42. Pa.C.S. § 9545(b)(2).     Hence, the PCRA court properly

concluded that his petition was untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2017




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