J-S09043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KEITA BRISBON,

                            Appellant                No. 1387 EDA 2016


                   Appeal from the PCRA Order April 15, 2016
                in the Court of Common Pleas of Chester County
               Criminal Division at Nos.: CP-15-CR-0000017-1997
                            CP-15-CR-0003141-2001


BEFORE: SHOGAN, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED MARCH 29, 2017

        Appellant, Keita Brisbon, appeals pro se from the denial of his second

petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§

9541-9546, as untimely. We affirm.

        The PCRA court aptly provided the following pertinent procedural and

factual history in its July 12, 2016 opinion:

               On November 10, 1996, in Coatesville, Pennsylvania,
        Ironne Cannon was shot in the street and critically injured. On
        May 18, 1998, Appellant pled guilty to attempted homicide and
        conspiracy in the shooting of Mr. Cannon. During his guilty plea
        hearing, Appellant admitted to being present, and involved,
        when Joseph Taylor shot Mr. Cannon as an act of revenge for an
        earlier beating. On April 16, 2001, Mr. Cannon died from his
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       injuries.   Appellant was subsequently charged with murder,
       convicted, and sentenced to life in prison on November 20,
       2003.     On May 12, 2005, the Pennsylvania Superior Court
       affirmed Appellant’s judgment of sentence for first degree
       murder. (See Commonwealth v. Brisbon, 880 A.2d 3 (Pa.
       Super. 2005)). On October 13, 2005, the Pennsylvania Supreme
       Court denied Appellant’s petition for allowance of appeal. (See
       Commonwealth v. Brisbon, 887 A.2d 231 (Pa. 2005)). On
       February 27, 2006, the United States Supreme Court denied his
       petition for writ of certiorari. (See Brisbon v. Pennsylvania,
       546 U.S. 1219 (2006)).

             On February 17, 2006, Appellant filed his first petition
       under the [PCRA]. One claim Appellant raised was that his
       counsel was ineffective for failing to obtain results from a
       gunshot residue test performed on his hands shortly after the
       shooting. [The PCRA court] found this claim without merit in
       that Appellant had been found guilty of being either the principal
       or an accomplice in the murder of Mr. Cannon, and whether or
       not he actually fired a shot on the night of November 10, 1996
       was immaterial to his finding of guilt. Accordingly, [the PCRA
       court] dismissed his petition on July 25, 2006. The Superior
       Court affirmed that order on October 15, 2007.               (See
       Commonwealth v. Brisbon, 943 A.2d 309 (Pa. Super. 2007)).

              On September 3, 2015, Appellant filed the instant petition.
       [The PCRA court] reviewed the petition, found that it was
       untimely, and on February 18, 2016, provided to Appellant the
       mandatory twenty-day notice of [its] intent to dismiss his
       petition. See Pa.R.Crim.P. 907(1). [Appellant responded pro se
       on March 25, 2016.] On April 15, 2016, [the court] dismissed
       his second PCRA petition. [Appellant timely appealed.1]

(PCRA Court Opinion, 7/12/16, at 1-2) (citations provided).

       Appellant raises three questions for our review:


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1
  Pursuant to the court’s order, Appellant filed a statement of errors
complained of on appeal on May 19, 2016. The PCRA court filed an opinion
on July 12, 2016. See Pa.R.A.P. 1925.



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        I.     Whether the withholding of exculpatory Atomic Absorption
        test kit results caused a violation of Brady[2] Rule?

        II.  Whether the availability now of exculpatory evidence that
        was thought not to exist constitutes newly discovered evidence
        meets [sic] 42 Pa.C.S.A. § 9545(b)(1)(i-iii), (2)?

        III. Whether       [the]    prosecutor  knowingly      committed
        government interference by concealing the findings of the atomic
        absorption test kit result no. H9707609-C from []Appellant prior
        to and after a specific request was made for this evidence meets
        [sic] 42 Pa.C.S.A. § 9543(a)(2)?

(Appellant’s Brief, at 4) (unnecessary capitalization omitted).

        Before we are able to consider the merits of Appellant’s claims on

appeal, we must determine whether the PCRA court properly determined

that his petition was untimely, and that, therefore, it did not have

jurisdiction to decide its merits. (See Order, 4/15/16; PCRA Ct. Op., at 1).

              We review an order dismissing a petition under the PCRA
        in the light most favorable to the prevailing party at the PCRA
        level. This review is limited to the findings of the PCRA court
        and the evidence of record. We will not disturb a PCRA court’s
        ruling if it is supported by evidence of record and is free of legal
        error. This Court may affirm a PCRA court’s decision on any
        grounds if the record supports it. We grant great deference to
        the factual findings of the PCRA court and will not disturb those
        findings unless they have no support in the record. However, we
        afford no such deference to its legal conclusions. Further, where
        the petitioner raises questions of law, our standard of review is
        de novo and our scope of review is plenary.

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2013), appeal

denied, 64 A.3d 631 (Pa. 2013) (citations omitted).

____________________________________________


2
    Brady v. Maryland, 373 U.S. 83 (1963).



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      Here, the PCRA court found that Appellant’s second PCRA petition was

untimely and that he failed to plead and prove any exception to the PCRA

time-bar. (See PCRA Ct. Op., at 3-4). We agree.

      It is well-settled that:

      A PCRA petition, including a second or subsequent one, must be
      filed within one year of the date the petitioner’s judgment of
      sentence became final, unless he pleads and proves one of the
      three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
      judgment becomes final at the conclusion of direct review by this
      Court or the United States Supreme Court, or at the expiration
      of the time for seeking such review.             42 Pa.C.S.[A.] §
      9545(b)(3).        The PCRA’s timeliness requirements are
      jurisdictional; therefore, a court may not address the merits of
      the issues raised if the petition was not timely filed.          The
      timeliness requirements apply to all PCRA petitions, regardless of
      the nature of the individual claims raised therein. The PCRA
      squarely places upon the petitioner the burden of proving an
      untimely petition fits within one of the three exceptions. . . .

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations

and footnote omitted).

      In the case sub judice, Appellant’s judgment of sentence became final

on February 27, 2006, when the United States Supreme Court denied his

petition for writ of certiorari.   See 42 Pa.C.S.A. § 9545(b)(3); see also

Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa. 1999). Therefore, he

had one year from that date to file a petition for collateral relief unless he

pleaded and proved that a timing exception applied.       See 42 Pa.C.S.A. §

9545(b)(1)(i)-(iii).   Hence, Appellant’s current petition, filed on September

3, 2015, is untimely on its face unless he pleads and proves one of the

statutory exceptions to the time-bar.

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      Section 9545 of the PCRA provides only three exceptions that allow for

review of an untimely PCRA petition: (1) the petitioner’s inability to raise a

claim because of governmental interference; (2) the discovery of previously

unknown facts that would have supported a claim; and (3) a newly-

recognized constitutional right. See id. When a petition is filed outside the

one-year time limit, petitioners must plead and prove the applicability of one

of   the   three   exceptions     to   the   PCRA   timing   requirements.   See

Commonwealth v. Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012) (“If

the petition is determined to be untimely, and no exception has been pled

and proven, the petition must be dismissed without a hearing because

Pennsylvania courts are without jurisdiction to consider the merits of the

petition.”) (citation omitted).    Also, a PCRA petition invoking one of these

statutory exceptions must “be filed within [sixty] days of the date the claim

could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).

      Here, Appellant attempts to argue the applicability of the after-

discovered facts and governmental interference exceptions to the PCRA’s

time-bar on the basis of the Commonwealth’s alleged Brady violation. See

id. at § 9545(b)(1)(i), (ii).          Specifically, Appellant argues that the

Commonwealth denied the existence of any gunpowder residue test results

on the basis that it elected not to pursue testing, but that he later

discovered they did exist when he obtained them directly from the

laboratory. (See Appellant’s Brief, at 8-11).


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      As a preliminary matter, we note that the issue regarding the

exculpatory nature of the gunshot residue test results was previously

litigated.

      Section 3544 of the PCRA provides, in pertinent part, that:

      [A]n issue has been previously litigated if . . . the highest
      appellate court in which the petitioner could have had review as
      a matter of right has ruled on the merits of the issue; or it has
      been raised and decided in a proceeding collaterally attacking
      the conviction or sentence.

42 Pa.C.S.A. § 9544(a)(2), (3).     Further, “it is well-settled that a PCRA

petitioner cannot obtain additional review of previously litigated claims by

presenting new theories of relief . . . .” Commonwealth v. Sneed, 45 A.3d

1096, 1112 (Pa. 2012) (citation omitted).

      In addressing Appellant’s first PCRA petition, a panel of this Court

observed:

            In his third issue, Appellant argues the Commonwealth
      withheld exculpatory evidence of gunshot residue test results,
      which would have proven Appellant did not fire the weapon used
      to kill the victim.   Appellant contends the Commonwealth’s
      suppression of this evidence violated Brady, supra, which
      prohibits the withholding of evidence favorable to the accused,
      regardless of whether bad faith was involved in the
      Commonwealth’s decision not to use the evidence. Appellant
      claims the Commonwealth’s decision not to procure the test
      results after Appellant pleaded guilty to attempted murder
      compromised Appellant’s ability to present an effective defense
      at the homicide trial.    Appellant concludes the prosecution
      violated his due process right to a fair trial by suppressing
      exculpatory evidence.

            Instantly, . . . Appellant was convicted of being either the
      principal or an accomplice in the victim’s murder. Thus, the
      gunshot residue test results would not necessarily have

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      exculpated Appellant of the charges against him, even if the
      results were to show Appellant was not the shooter.

(Commonwealth        v.   Brisbon,   No.   2187    EDA    2006,   unpublished

memorandum, at **14-15 (Pa. Super. filed Oct. 15, 2007) (one case citation

omitted)).

      We recognize that Appellant’s claim in his first PCRA petition was

slightly different than the one raised herein.      In his first petition, he

maintained that the Commonwealth’s Brady violation was its decision not to

perform gunshot residue testing. (See id.). Here, Appellant argues that the

Commonwealth committed a Brady violation when it misrepresented that

test results did not exist, when, in fact, they did. (See Appellant’s Brief, at

4, 8-11). However, regardless of whether the results did or did not exist,

the issue of whether they could be exculpatory has been previously litigated,

and Appellant cannot argue that issue again under the guise of new legal

theories. See Sneed, supra at 1112.

      Moreover, even if we did not consider Appellant’s issue previously

litigated, we have undertaken our own review and conclude that he fails to

establish either the governmental interference or after-discovered fact

exception to the timeliness requirements. (See Appellant’s Brief, at 8-11).

            It is well-settled that a Brady violation can fall within the
      governmental interference exception.         Commonwealth v.
      Breakiron, 566 Pa. 323, 330-31, 781 A.2d 94, 98 (2001).
      However, . . . Appellant . . . must plead and prove that the
      information could not have been discovered earlier with the
      exercise of due diligence. Id. Further, in order to prevail under
      the newly discovered evidence exception, Appellant must plead

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      and prove that the facts upon which the claim is predicated were
      unknown to him and could not have been ascertained earlier by
      the exercise of due diligence. Commonwealth v. Bronshtein,
      561 Pa. 611, 752 A.2d 868 (2000). In addition Appellant must
      show that these new facts constitute “exculpatory evidence” that
      “would have changed the outcome of the trial if it had been
      introduced.” [] Yarris, [supra at 591].

Commonwealth v. Sattazahn, 869 A.2d 529, 535 (Pa. Super. 2005).

      In this case, we recognize that the trial court’s December 20, 2005

order denied Appellant’s request for the production of the laboratory results

under the mistaken belief that they did not exist, where the Commonwealth

did not request that they be performed. (See Order, 12/20/05). However,

Appellant fails to establish that he acted with due diligence to obtain the

results, which he failed to request until approximately ten years after the

court’s order, and over fifteen years after the laboratory report actually was

prepared. (See Appellant’s Brief, at 8-11; Pennsylvania State Police Bureau

of Forensic and Criminal Identification Lab Report H9707609-C, 3/16/98).

Therefore, because Appellant has not established that he acted with due

diligence, he has failed to plead and prove the applicability of the

governmental interference exception. See Sattazahn, supra at 535.

      We also conclude that the laboratory results do not fall under the

newly discovered facts exception because they are not exculpatory or

material. As the PCRA court explained:

      Appellant was found guilty as either the principal or an
      accomplice in Mr. Cannon’s murder.          A principal and his
      accomplice share equal responsibility for their criminal acts. See
      Commonwealth v. Cox, 686 A.2d 1279, 1286 (Pa. 1996)[,

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     cert. denied, 522 U.S. 999 (1997)].         Accordingly, whether
     Appellant actually fired the shots that ultimately killed Mr.
     Cannon, and/or whether or not gunshot residue was found on his
     hands was immaterial to Appellant’s guilt in this case.
     [Therefore,] . . . the evidence offered would not be considered
     “exculpatory evidence” that “would have changed the outcome
     of the trial[.]” 42 Pa.C.S.A. § 9543(a)(2)(vi)[.] . . .

(PCRA Ct. Op., at 3-4) (case citation formatting provided).

     We agree with the PCRA court. In fact, the laboratory report obtained

by Appellant stated: “The above results do not indicate [Appellant] had or

had not recently discharged a firearm; they simply indicate the barium and

antimony present on [his] hands . . . at the time when the swabbings were

taken was of no significance.”       (Pennsylvania State Police Bureau of

Forensics and Criminal Identification Lab Report H9707609-C, 3/16/98).

Therefore, not only are the results immaterial to the crime charged, they are

not exculpatory and do not make it likely that the jury would have reached a

different result if they had been available at the time of trial.        See

Sattazahn, supra at 535.      Accordingly, the trial court did not abuse its

discretion when it found that Appellant failed to plead and prove the

applicability of the after-discovered facts exception to the PCRA time-bar.

See id.

     For all of the foregoing reasons, where the laboratory test results were

neither exculpatory nor material, and Appellant failed to exercise due

diligence in obtaining them, we conclude that he has failed to plead and

prove the applicability of a timeliness exception. See Sattazahn, supra at


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535. The PCRA court properly dismissed his petition. See Rykard, supra

at 1183.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/29/2017




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