J-S81045-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

KEVIN J. LOWRY

                            Appellant                 No. 1458 EDA 2015


                   Appeal from the PCRA Order April 30, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0704141-1982


BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                    FILED DECEMBER 16, 2016


        Appellant Kevin J. Lowry appeals pro se from the Order entered in the

Court of Common Pleas of Philadelphia County on April 30, 2015, dismissing

as untimely his second petition filed pursuant to the Post Conviction Relief

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

        In 1983, Appellant was convicted of first-degree murder, criminal

conspiracy and possessing an instrument of crime. On April 12, 1984,

Appellant was sentenced to life imprisonment on the murder conviction

along with consecutive prison terms of five (5) years to ten (10) years on

the conspiracy conviction and two and one-half (2½) years for the weapons

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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offense.      This Court affirmed Appellant’s judgment              of sentence   on

September 6, 1985, and Appellant did not file a petition for allowance of

appeal with our Supreme Court.

       On April 6, 1987, Appellant filed his first petition pursuant to the Post

Conviction Hearing Act, pro se, which was later withdrawn without prejudice

on May 12, 1988. Appellant filed a pro se PCRA petition on November 28,

1995, and counsel was appointed.               After a thorough review of the record,

counsel filed a “no-merit” letter pursuant to Turner/Finley1 on October 23,

1996, wherein he advised the PCRA court that the issues Appellant had

raised in his pro se petition lacked merit and that, in his view, there were no

others of arguable merit which could be raised in an amended petition. On

December 11, 1996, the PCRA court denied Appellant’s petition, and this

Court affirmed on April 6, 1998.           On September 10, 1998, our Supreme

Court denied Appellant’s petition for allowance of appeal.

       On August 13, 2012, Appellant filed a second PCRA petition. 2              On

November 24, 2014, Appellant filed an amended PCRA petition wherein he


____________________________________________


1
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988).
2
   Therein, Appellant claimed he was entitled to relief under the newly
recognized constitutional right exception to the PCRA time-bar in light of the
United States Supreme Court’s decision in Miller v. Alabama, 132 S.Ct.
2455 (2012). See 42 Pa.C.S.A. § 9545(b)(1)(iii). Although the PCRA court
considered the merits of this claim in its Rule 1925(a) opinion, Appellant has
abandoned it on appeal. See Commonwealth v. Bullock, 948 A.2d 818,
(Footnote Continued Next Page)


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claimed he was entitled to relief in light of newly-discovered evidence in the

form of recantation testimony by a key Commonwealth witness, Mr. John

Johnson. He further asserted he was entitled to relief due to governmental

interference as a result of the Commonwealth’s failure to inform him that Mr.

Johnson had been promised leniency at his sentencing in an unrelated

armed robbery matter in exchange for his testimony at Appellant’s trial. In

support of these claims, Appellant attached to his amended PCRA petition a

certification of an individual affiliated with the Pennsylvania Innocence

Project at Temple University Beasley School of Law, Mr. Nick Kato. Therein,

Mr. Kato related that Mr. Johnson had informed him during an interview on

November 5, 2014, he had fabricated his identification of Appellant in an

effort to receive a lighter sentence in his pending criminal matter.

      On April 30, 2015, the PCRA court entered its order dismissing the

petition as untimely filed, and Appellant filed a timely notice of appeal on

May 7, 2015.       Thereafter, the PCRA court filed a letter with this Court

requesting that the matter be remanded for appointment of counsel and

reassignment.     In a Per Curiam Order of February 1, 2016, this Court

directed the PCRA court to certify and transmit the record after determining

Appellant’s eligibility for court appointed counsel and to file an opinion

pursuant to Pa.R.A.P. 1925(a).             On February 7, 2016, the PCRA court
                       _______________________
(Footnote Continued)

823 (Pa.Super. 2008) (stating an issue identified on appeal but not
developed in an appellant’s brief is abandoned and, therefore, waived).



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entered an order denying Appellant’s motion for the appointment of counsel,

and on May 9, 2016, it filed its Memorandum Opinion pursuant to Pa.R.A.P.

1925(a).

      In his brief, Appellant presents the following Statement of the

Questions Involved:

      Did the PCRA court while violating due process erroneously deny
      Appellant an evidentiary hearing thus ignoring the protocol set
      [sic] Com. v. Pander and PA. Rule of Criminal 902(A)(15)?

      Did the PCRA court err in dismissing Petitioner’s PCRA as
      untimely and denied an evidentiary hearing when it was filed
      within sixty days upon discovery of governmental interference?

Appellant’s Brief at 8 (unnecessary capitalization omitted).

      Preliminarily, we must determine whether Appellant’s instant PCRA

petition was timely filed. See Commonwealth v. Hutchins, 760 A.2d 50

(Pa.Super. 2000).     “Our standard of review is whether the PCRA court’s

order is supported by the record and without legal error.” Commonwealth

v. Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008) (citation omitted).

      Pennsylvania law makes it clear that no court has jurisdiction to hear

an untimely PCRA petition.     Commonwealth v. Robinson, 575 Pa. 500,

837 A.2d 1157 (2003). The most recent amendments to the PCRA, effective

January 19, 1996, provide that a PCRA petition, including a second or

subsequent petition, shall be filed within one year of the date the underlying

judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed

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


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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.A. §

9545(b)(3).

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused. 42 Pa.C.S.A. § 9545(b)(1).        To invoke an exception, a

petition must allege and the petitioner must prove:

      (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 the law of this Commonwealth or the Constitution or
               law 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 Pennsylvania after
               the time period provided in this section and has been
               held by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      “We emphasize that it is the petitioner who bears the burden to allege

and prove that one of the timeliness exceptions applies.” Commonwealth

v. Marshall, 596 Pa. 587, 596, 947 A.2d 714, 719 (2008) (citation

omitted). Additionally, as this Court often has explained, all of the time-bar

exceptions are subject to a separate deadline.

             The statutory exceptions to the timeliness requirements of
      the PCRA are also subject to a separate time limitation and must
      be filed within sixty (60) days of the time the claim could first

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       have been presented. See 42 Pa.C.S.A. § 9545(b)(2). The sixty
       (60) day time limit . . . runs from the date the petitioner first
       learned of the alleged after-discovered facts. A petitioner must
       explain when he first learned of the facts underlying his PCRA
       claims and show that he brought his claim within sixty (60) days
       thereafter.

Commonwealth v. Williams, 35 A.3d at 44, 53 (Pa.Super. 2011) (citation

omitted).

       In the case sub judice, Appellant was sentenced on April 12, 1984, and

this Court affirmed his judgment of sentence on September 6, 1985.

Appellant did not file a petition for allowance of appeal; therefore,

Appellant’s judgment of sentence became final thirty days thereafter, on

October 6, 1985, when the time for seeking allocator with our Supreme

Court expired.     See 42 Pa.C.S.A. § 9545(b)(3) (providing “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[ ]”). In

Appellant’s case, a timely first petition for post-conviction relief would have

had to have been filed by January 16, 1997, pursuant to the grace period

provided for petitioners whose judgments of sentence became final prior to

the effective date of the amended PCRA.      Commonwealth v. Davis, 916

A.2d   1206,     1208-09   (Pa.Super.   2007)   (explaining   that   the   1995

amendments to the PCRA provide that if a judgment of sentence became

final before the January 16, 1996, the effective date of the amendments, a

PCRA petition will be considered timely if filed within one year of the

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effective date of the amendments, or by January 16, 1997; however, this

grace period applies only to first PCRA petitions). Appellant filed the instant

PCRA petition, his second, on August 13, 2012; therefore, it is patently

untimely.     As such, the PCRA court could not address the merits of

Appellant’s petition unless a timeliness exception applies.

       Appellant attempts to invoke the timeliness exception of 42 Pa.C.S.A.

§   9545(b)(1)(ii).     Appellant     explains   that   in   June   of    2009,   “field

investigators” with the Pennsylvania Innocence Project at Temple University

Beasley School of Law agreed to examine his case at which time “it was

discovered that the one and only eye-witness in [Appellant’s] murder

conviction had initially identified another man as the perpetrator. See N.T.

12/8/82 pg. 1388.”            Brief of Appellant at 11 (emphasis in original).3

Appellant states that upon further investigation, that witness, Mr. Johnson,

was interviewed at his home on November 5, 2014, at which time he

revealed to Mr. Kato and Mr. Dan Giordano he was not sure whom the

perpetrator had been and stated that he had identified Appellant only

because he had been promised leniency by both police and prosecutors

concerning pending armed robbery charges against him.                    Id. at 12, 15.

Appellant maintains that there was no possibility for him to have obtained
____________________________________________


3
  We note that the transcript from this date spans only 32 pages and
pertains to Appellant’s “petition to modify an extension of Rule 1100.” N.T.,
12/8/82, at 2.




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the exculpatory evidence sooner, in light of the Commonwealth’s withholding

from the defense that Mr. Johnson had been offered and received leniency.

Id. at 14.4 As such, Appellant asserts the PCRA court erred in dismissing his

petition without first holding an evidentiary hearing.

       At the outset, we note that the Commonwealth asserts Appellant has

waived the claims he presents herein for failure to raise them properly

below.    Commonwealth’s Brief at 7 n. 6.        Indeed, our Supreme Court has

stated that:

       Notwithstanding the PCRA court's indulgence in addressing all of
       Appellant's claims, it was Appellant's duty to identify where in
       the record the supplemental petitions were authorized and/or
       reconstruct the record if such authorization was provided off the
       record. Appellant has failed to do so, even though this defect
       was raised by both the PCRA court and the Commonwealth. This
       Court has condemned the unauthorized filing of supplements and
       amendments to PCRA petitions, and has held that such claims
       raised in such supplements are subject to waiver. See
       Commonwealth v. Elliott, 80 A.3d 415 (Pa. 2013);
       Commonwealth v. Roney, ––– Pa. ––––, 79 A.3d 595, 615
       (2013); Commonwealth v. Porter, 613 Pa. 510, 35 A.3d 4, 12
       (2012). Thus, although the vast majority of Appellant's claims
       were raised in his first counseled Amended Petition, certain
       claims, which are discussed below, were raised for the first time
       in   an    apparently    unauthorized    supplemental   petition;
       accordingly, we find those claims to be waived.

Commonwealth v. Reid, 627 Pa. 78, 94–95, 99 A.3d 427, 437 (2014).

       Herein, the claims Appellant sets forth for this Court’s review were

raised in his amended PCRA petition filed over two years after he filed his
____________________________________________


4
  In setting forth this claim, Appellant purports to invoke 42 Pa C.S.A.
9545(b)(1)(i), supra.



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second PCRA petition, and the record is devoid of evidence the PCRA court

authorized the filing of the amended petition. Notwithstanding, to the extent

Appellant raised the after-discovered evidence exception to the PCRA time

bar by supplementing his second PCRA petition within 60 days of his alleged

discovery of the purported newly-discovered evidence and of the alleged

governmental interference, we will consider the merits of these claims.

      Our Supreme Court previously has stressed that the newly-discovered

evidence exception in Section 9545(b)(1)(ii) requires a petitioner to allege

and prove that there were “facts” that were “unknown” to him and that he

could not have ascertained those facts by the exercise of “due diligence.”

Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264, 1270-72 (2007).

The Supreme Court unequivocally has explained the exception set forth in

subsection (b)(1)(ii) does not require a merits analysis of the underlying

claim. Commonwealth v. Abu–Jamal, 596 Pa. 219, 941 A.2d 1263, 1268

(2008). Rather, the exception requires a petitioner to prove only that the

facts were unknown to him and he exercised due diligence in discovering

those facts. Bennett, 593 Pa. at 393, 930 A.2d at 1270; See also

Commonwealth v. Breakiron, 566 Pa. 323, 330-31, 781 A.2d 94, 98

(2001) (rejecting attempt to invoke Section 9545(b)(1)(ii) because appellant

failed to offer any evidence that he exercised due diligence in obtaining facts

upon which his claim was based).




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      To invoke Section 9545(b)(1)(ii), a petitioner, must prove that “(1) the

evidence has been discovered after trial and it could not have been obtained

at or prior to trial through reasonable diligence; (2) the evidence is not

cumulative; (3) it is not being used solely to impeach credibility; and (4) it

would likely compel a different verdict.” Commonwealth v. D’Amato, 579

Pa. 490, 519, 856 A.2d 806, 823 (2004) (citations omitted).        Moreover,

“[d]ue diligence demands that the petitioner take reasonable steps to

protect his own interests. A petitioner must explain why he could not have

learned the new fact(s) earlier with the exercise of due diligence. This rule

is strictly enforced.”   Commonwealth v. Williams, 35 A.3d 44, 53

(Pa.Super. 2011) (citations omitted). Further, “[t]he focus of the exception

is on the newly discovered facts, not on a newly discovered or newly willing

source for previously known facts.” Commonwealth v. Marshall, 596 Pa.

587, 596, 947 A.2d 714, 720 (2008) (emphasis in original).

      Our Supreme Court also has stated that when a petitioner seeks a new

trial based upon alleged after-discovered evidence in the form of recantation

testimony, that petitioner must establish:

       (1) the evidence has been discovered after trial and it could not
      have been obtained at or prior to trial through reasonable
      diligence; (2) the evidence is not cumulative; (3) it is not being
      used solely to impeach credibility; and (4) it would likely compel
      a different verdict. Commonwealth v. Johnson, 600 Pa. 329,
      966 A.2d 523, 541 (2009); Commonwealth v. Washington,
      592 Pa. 698, 927 A.2d 586, 595-96 (2007); Commonwealth v.
      D'Amato, 579 Pa. 490, 856 A.2d 806, 823 (2004);
      Commonwealth v. Wilson, 538 Pa. 485, 649 A.2d 435 (1994).
      Further, the proposed new evidence must be producible and

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      admissible. [Commonwealth v. Scott, 470 A.2d 91, 93 (Pa.
      1983)].
Commonwealth v. Smith, 609 Pa. 605, 629, 17 A.3d 873, 887 (2011),

cert. denied, 133 S.Ct. 24 (2012). The Court further has instructed that:

      Recantation testimony is extremely unreliable. Commonwealth
      v. McCracken, 540 Pa. 541, 659 A.2d 541 (1995);
      Commonwealth v. Nelson, 484 Pa. 11, 398 A.2d 636 (1979);
      Commonwealth v. Coleman, 438 Pa. 373, 264 A.2d 649
      (1970). When the recantation involves an admission of perjury,
      it is the least reliable form of proof. Coleman. The trial court
      has the responsibility of judging the credibility of the
      recantation. Nelson. Unless the trial court is satisfied that the
      recantation is true, it should deny a new trial. Nelson;
      Coleman. An appellate court may not disturb the trial court's
      determination absent a clear abuse of discretion. Nelson.


Commonwealth v. Henry, 550 Pa. 346, 363, 706 A.2d 313, 321 (1997).

      Furthermore, we emphasize that:

      A PCRA court is only required to hold a hearing where the
      petition, or the Commonwealth's answer, raises an issue of
      material fact. When there are no disputed factual issues, an
      evidentiary hearing is not required. If a PCRA petitioner's offer of
      proof is insufficient to establish a prima facie case, or his
      allegations are refuted by the existing record, an evidentiary
      hearing is unwarranted.

Commonwealth v. Eichinger, 631 Pa. ___, ____, 108 A.3d 821, 849

(2014) (internal citations omitted). Also, for a petitioner to be entitled to an

evidentiary hearing pertaining to an exculpatory witness’s testimony, he

must include in his PCRA petition a signed certification as to each intended

witness stating the witness's name, address, date of birth and substance of

testimony and include any documents material to that witness’s testimony.




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Commonwealth v. Reid, 627 Pa. 78, 96, 99 A.3d 427, 438 (2014); See

also, 42 Pa.C.S.A. § 9545(d)(1); Pa.R.Crim.P.902(A)(15).

      Upon our review of the record, we conclude the PCRA court did not

abuse its discretion in finding Appellant failed to offer after-discovered

evidence or to demonstrate that government officials obstructed the

presentation of his claims. In the first instance, the sole evidence Appellant

presented along with his amended, second PCRA petition to support his

claims is a signed certification of Nick Kato relaying Mr. Johnson’s purported

proposed testimony. Appellant does not attach an affidavit or certification of

Mr. Giordano, another investigator allegedly involved in the matter, although

Appellant states numerous times in his appellate brief that Mr. Johnson

informed both men he had engaged in perjury at Appellant’s trial. Brief for

Appellant at 12.   Most importantly, Appellant has failed to attach either a

signed certification or an affidavit of Mr. Johnson, nor does he propose to call

Mr. Johnson to testify were he granted an evidentiary hearing.

      It is well-established that a claim based upon inadmissible hearsay

does not satisfy the newly-discovered evidence exception. See Abu-Jamal,

supra, 596 Pa. at 230, 941 A.2d at 1269.         In this regard, our Supreme

Court has stated the following:

      Any evidence relevant to the impeachment issue may be used
      against a witness, except that which is prohibited by the rules of
      evidence. Pa.R.E. 607(b). Hearsay, which is a statement made
      by someone other than the declarant while testifying at trial and
      is offered into evidence to prove the truth of the matter
      asserted, is normally inadmissible at trial. Pa.R.E. 801(c) & 802.

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      Impeaching a witness through the introduction of an inconsistent
      out-of-court statement will not be considered hearsay if the
      statement is: (1) under oath subject to the penalty of perjury at
      a trial, hearing, other proceeding, or deposition; (2) in writing
      and adopted by the declarant; and (3) a verbatim
      contemporaneous      recording of the oral statement. Pa.R.E.
      803.1(1).

Commonwealth v. Carson, 590 Pa. 501, 561, 913 A.2d 220, 254–55

(2006) (footnote omitted).

      Appellant relies upon this Court’s holding in Commonwealth v.

Pander, 100 A.2d 626 (Pa.Super. 2014) to support his conclusion the PCRA

court committed reversible error when relying upon the fact that Appellant

had failed to attach an affidavit from Mr. Johnson in denying him an

evidentiary hearing and in holding that Appellant failed to show he could not

have obtained the “witness recantation” evidence prior to the conclusion of

trial through the exercise of reasonable diligence. Brief for Appellant at 13.

In Pander, this Court indicated that there is no requirement for a petitioner

to file an affidavit to be entitled to an evidentiary hearing and noted it is

improper to affirm a PCRA court’s decision on the sole basis of inadequate

witness certification in instances where the PCRA court failed to provide

notice of the alleged defect.   Commonwealth v. Pander, 100 A.3d 626,

643 (Pa.Super. 2014), appeal denied, 631 Pa. 712, 109 A.3d 679 (2015)

citing Pa.R.Crim.P. 905(B); however, that case is not dispositive herein, for

it did not involve the newly-discovered evidence exception to the PCRA time-

bar, as the PCRA petition at issue therein had been timely filed. In addition,



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the PCRA court determined that were Appellant to offer the certification of

Nick Kato at an evidentiary hearing, such evidence would constitute an out-

of-court statement by Mr. Johnson relied upon for its truth; therefore,

Appellant has failed to produce evidence that would be admissible at an

evidentiary hearing to support his claim.

      Moreover, even had Appellant presented an affidavit or certification of

Mr. Johnson, he would not be entitled to relief for his failure to show he

exercised due diligence in setting forth this claim.   In an effort to explain

why there was “no possibility” for him to have discovered Mr. Johnson’s

recantation at an earlier date, Appellant generally maintains that he began

working with investigators in 2009, because he suffered from a “lack of

resources” prior thereto.   In 2009, the investigators allegedly set forth a

“nationwide search” and after “several months” “tracked, located and found

[Mr. Johnson] still living in Philadelphia.”    Brief for Appellant at 11.

Appellant does not clarify why Messrs. Kato and Giordano did not meet with

and interview Mr. Johnson until November of 2014, over five years after his

whereabouts became known. Thus, Appellant failed to meet his burden to

prove he was duly diligent in obtaining the alleged recantation testimony of

Mr. Johnson, or that he filed his amended PCRA petition within 60 days of

obtaining this claimed new evidence. As such, the PCRA court did not err in

dismissing the untimely PCRA petition without a hearing.




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      Also, Appellant has failed to establish the instant PCRA petition was

filed within 60 days of his discovery of alleged governmental interference.

Mr. Johnson was questioned on both direct examination and on cross-

examination at Appellant’s trial in 1983 regarding the pending criminal

charges against him.    Through the Commonwealth’s questioning, the jury

was made aware that Mr. Johnson had been charged with armed robbery in

two, separate incidents and that his trial in those matters had been

scheduled.   N.T. Trial, 3/8/1983, at 678. Mr. Johnson indicated that no one

in the District Attorney’s office had made any promises to encourage him to

testify, but did indicate that, at most, the prosecutor had told Mr. Johnson

that if he were ultimately convicted of any crime, he would “tell the Judge

that [Mr. Johnson] in fact had testified and cooperated in this case.” Id. at

670. Appellant admits in his appellate brief that he was able to glean from

police reports that Mr. Johnson pled guilty on June 7, 1983, and received

probation.   Brief for Appellant at 11-12.   While he baldly states that he

suffered from a “lack of resources” until 2009, he fails to explain why he was

unable to ascertain with the exercise of due diligence the sentence which Mr.

Johnson received in June of 1983 until almost three decades later. Indeed,

contrary to Appellant’s assertions, the fact that Mr. Johnson pled guilty and

received a five years of probation does not evince that he made a

clandestine deal with police and the prosecution in exchange for his

testimony against Appellant. Brief for Appellant at 21.


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       In   light   of   the   foregoing,      Appellant   has   failed   to   show   the

Commonwealth obstructed his ability to obtain the allegedly exculpatory

evidence.     See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10

(1963).5 Accordingly, as Appellant's petition is patently untimely and he has

failed to plead and prove the applicability of any exception to the PCRA's

time-of-filing requirements, the PCRA court lacked jurisdiction to consider

the merits of the issue Appellant raised in the petition and did not err in

dismissing it without an evidentiary hearing.

       Order affirmed.

       Judge Bowes joins the memorandum.

       Judge Moulton concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/2016



____________________________________________


5
  Specifically, a Brady claim requires a petitioner to show “(1) the
prosecutor has suppressed evidence, (2) the evidence, whether exculpatory
or impeaching, is helpful to the defendant, and (3) the suppression
prejudiced the defendant.” Commonwealth v. Carson, 590 Pa. 501, 913
A.2d 220, 244 (2006).




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