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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. J-S34012-17
130 (Pa.Super. 2004) (unpublished memorandum), appeal denied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(Pa.Super. 2012) (unpublished memorandum).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:
-3- J-S34012-17
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.
-4- J-S34012-17
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
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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. J-S34012-17
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:
-2- J-S34012-17
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:
-3- J-S34012-17
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.
-4- J-S34012-17
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
-5- J-S34012-17
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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