J-S24012-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BRIAN K.THOMPSON 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 275 EDA 2022

Appeal from the PCRA Order Entered November 16, 2021

In the Court of Common Pleas of Chester County 

Criminal Division at No(s): CP-15-CR-0003498-2005

BEFORE: PANELLA, P.J., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY PANELLA, P.J.: FILED OCTOBER 21, 2022

Brian K. Thompson appeals from the order entered in the Chester 

County Court of Common Pleas on November 16, 2021, dismissing his serial 

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. 

§§ 9541-9546 as untimely. After careful review, we affirm. 

In July 2005, Thompson shot and killed his girlfriend, who was also the 

mother of his two children. At trial, Thompson claimed the shotgun went off 

accidentally while he was under the influence of drugs and alcohol. To rebut 

these claims, the Commonwealth presented the testimony of Richard Mack, a 

friend of Thompson, who contradicted Thompson’s testimony that he had been 

drinking or doing drugs on the morning in question. At the end of the jury 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-S24012-22

- 2 -

trial, Thompson was found guilty of first-degree murder and possessing an 

instrument of crime. On March 16, 2006, the trial court sentenced Thompson 

to an aggregate term of life imprisonment. 

Thompson filed a timely direct appeal, in which he argued, among 

multiple other claims, that the Commonwealth failed to turn over material 

about Mack's parole status and elicited false testimony from Mack that he was 

not on parole at the time of the murder. We affirmed the judgment of sentence 

and the Pennsylvania Supreme Court denied Thompson’s petition for 

allowance of appeal on November 19, 2008. 

In 2009, Thompson filed a timely pro se PCRA petition. Counsel was 

appointed, however Thompson was subsequently granted the right to proceed 

pro se with standby counsel. Thompson later filed a pro se amended PCRA 

petition, raising numerous issues including a claim of trial counsel 

ineffectiveness for failing to request a bill of particulars for all of Mack’s prior 

convictions. After a hearing, the PCRA court denied the PCRA petition. We 

affirmed the denial, and the Pennsylvania Supreme Court later denied 

Thompson’s petition for allowance of appeal.

In 2012, Thompson filed a second pro se PCRA petition, in which he 

argued the Commonwealth erred in suppressing Brady1 material regarding 

Mack’s pending charges at the time of trial, and for failing to correct false 

____________________________________________

1 Brady v. Maryland, 373 U.S. 83 (1963).
J-S24012-22

- 3 -

testimony from Mack. The PCRA court dismissed the petition as untimely. We 

affirmed the dismissal, and our Supreme Court later denied Thompson’s 

petition for allowance of appeal.

In 2018, Thompson filed his third pro se PCRA petition, in which he 

alleged the Commonwealth committed a Brady violation by withholding 

evidence regarding Mack’s prior criminal convictions. The PCRA court 

dismissed the petition as untimely. We affirmed the dismissal, and our 

Supreme Court later denied Thompson’s petition for allowance of appeal.

On September 3, 2021, Thompson filed the instant, fourth pro se PCRA 

petition. The grounds of this fourth petition mirrored the claims Thompson has 

previously raised on multiple occasions; Thompson asserted that information 

regarding Mack’s previous criminal history was withheld from him. The PCRA 

court subsequently issued notice of its intent to dismiss the petition without a 

hearing pursuant to Pa.R.Crim.P. 907, finding the petition untimely. After 

consideration of Thompson’s response, the PCRA court dismissed the petition. 

This timely appeal followed. 

Prior to reaching the merits of Thompson’s claims on appeal, we must 

consider the timeliness of his PCRA petition. See Commonwealth v. Miller, 

102 A.3d 988, 992 (Pa. Super. 2014). 

A PCRA petition, including a second or subsequent one, must be 

filed within one year of the date the petitioner’s judgment of 

sentence becomes 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 
J-S24012-22

- 4 -

the time for seeking such review. 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) (internal citations 

and footnote omitted). 

Thompson’s judgment of sentence became final in 2009. The instant 

petition – filed more than 11 years later – is patently untimely. See Appellant’s 

Brief, at 10 (“Appellant concedes that his current PCRA petition [was] not filed 

within one-year of the judgment [of sentencing becoming final.]”). Thus, the 

PCRA court lacked jurisdiction to review Thompson’s petition unless he was 

able to successfully plead and prove one of the statutory exceptions to the 

PCRA’s time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). 

The PCRA provides three exceptions to its time bar: 

(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;

(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 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. 
J-S24012-22

- 5 -

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Exceptions to the time-bar must be pled in 

the petition, and may not be raised for the first time on appeal. See 

Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007); see also

Pa.R.A.P. 302(a) (providing that issues not raised before the lower court are 

waived and cannot be raised for the first time on appeal). Further, 

although this Court is willing to construe liberally materials filed 

by a pro se litigant, pro se status generally confers no special 

benefit upon an appellant. Accordingly, a pro se litigant must 

comply with the procedural rules set forth in the Pennsylvania 

Rules of the Court. This Court may quash or dismiss an appeal if 

an appellant fails to conform with the requirements set forth in 

the Pennsylvania Rules of Appellate Procedure. 

Commonwealth v. Lyons, 833 A.2d 245, 251–52 (Pa. Super. 2003) 

(citations omitted). Even liberally construed, Thompson has failed to plead 

and prove that any of his claims constitute a valid exception to the PCRA timebar. 

Thompson has invoked the newly-discovered fact and government 

interference exceptions to the PCRA's jurisdictional time-bar.2 These 

exceptions have plainly not been met. Thompson’s claim in his fourth PCRA 

petition rests on facts that he was aware of at the time he filed his previous 

petitions and appeals. He is attempting to show that evidence was withheld 

____________________________________________

2 Even if Thompson had alleged and argued that his claims qualified under 42 

Pa.C.S.A. § 9545(b)(1)(iii), the newly recognized Constitutional right 

exception, it would not change the outcome. See Commonwealth v. 

Kretchmar, 189 A.3d 459, 463-64 (Pa. Super. 2018) (explaining that 

changes in the application of the PCRA’s exceptions to the timebar do not 

qualify as new Constitutional rights for purposes of § 9545(b)(iii)). 
J-S24012-22

- 6 -

from him that he could have used to impeach a Commonwealth witness. 

Thompson merely seeks to relitigate his previously denied PCRA claims by 

relying on recent case law and additional information concerning Mack’s 

criminal history.

Thompson continues to raise the same or similar claims regarding Mack 

as he has raised in his direct appeal and previous PCRA petitions. He therefore 

essentially stands in the same position as he did filing his previous petitions 

and appeals. However, Thompson argues the merits of his petition should now 

be heard pursuant to the holding in Commonwealth v. Small, 238 A.3d 1267 

(Pa. 2020). In Small, the Pennsylvania Supreme Court discussed the “public 

record presumption” which imputes knowledge of facts to a PCRA petitioner 

the moment those facts become part of the public record, regardless of 

whether the petitioner remained ignorant of them despite exercising due 

diligence. The presumption was abandoned in Small, because as applied to 

incarcerated pro se petitioners, it is inconsistent with the plain language of the 

PCRA's newly-discovered evidence exception to the jurisdictional time-bar. 

See Small, 238 A.3d at 1283-1286.

According to Thompson, the decision in Small compels the PCRA court 

to recognize his petition as timely filed. However, Small is inapplicable here, 

where the underlying facts that Thompson puts forward are not “new,” much 

less newly-discovered evidence as defined by subsection 9545(b)(1)(ii) of the 

PCRA. 
J-S24012-22

- 7 -

We agree with the PCRA court that Small has no bearing on the present 

case because it is not a public records presumption that renders Thompson’s 

PCRA petition untimely. Thompson has evidenced his full awareness of the 

purported withholding of Mack’s criminal history by raising the same or similar 

claims numerous times since trial. Accordingly, because Thompson cannot 

satisfy the newly-discovered evidence or government interference exceptions 

to the PCRA's jurisdictional time-bar, the PCRA court did not err in finding 

Thompson’s petition untimely.

Order affirmed. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/21/2022