J-S24036-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KEVIN CANNADY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1818 EDA 2021

Appeal from the PCRA Order Entered August 12, 2021

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-1218351-1987

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

MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 8, 2022

Kevin Cannady (Cannady) appeals from the order of the Court of 

Common Pleas of Philadelphia County (PCRA court) dismissing as untimely his

petition for relief filed under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. 

§§ 9541-9546. We affirm.

In 1989, Cannady and a co-conspirator were convicted of first-degree 

murder and related offenses for robbing and killing two men. Because the 

jury was unable to agree on the death penalty, the trial court sentenced both 

Cannady and his co-conspirator to life sentences. This Court affirmed 

Cannady’s judgment of sentence on direct appeal, and our Supreme Court 

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* Retired Senior Judge assigned to the Superior Court.
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denied his petition for allowance of appeal. Commonwealth v. Cannady, 

590 A.2d 356 (Pa. Super. 1991), appeal denied, 600 A.2d 950 (Pa. 1991).

Over the past three decades, Cannady has filed a series of PCRA 

petitions—all of which the PCRA court dismissed.1 On July 9, 2014, Cannady 

filed this, his eighth, PCRA petition. In his petition, he alleged that the 

Commonwealth failed to disclose a promise of leniency to its key witness at 

trial in return for his testimony. Recognizing that his petition was untimely, 

Cannady asserting the governmental interference and newly-discovered fact 

timeliness exceptions to the PCRA’s one-year jurisdictional time-bar.

While his petition was pending, Cannady filed various supplements and 

amendments to his petition raising new claims. Eventually, on June 17, 2021, 

the PCRA court issued notice of its intent to dismiss the petition without 

hearing under Pa.R.Crim.P. 907, explaining that Cannady had failed to 

properly invoke an exception to the time-bar. After the PCRA court formally 

dismissed the petition on August 12, 2021, Cannady timely filed this appeal 

and raises two issues for review:

I. Did the PCRA court abuse its discretion in dismissing 

[Cannady’s] most recent PCRA, Supplemental Petition, and any 

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1 Cannady appealed from the dismissal of his second, third, fourth and sixth 

petitions. In each instance, this Court affirmed the dismissals in unpublished 

memorandums. Commonwealth v. Cannady, 841 A.2d 571 (Pa. Super. 

2003) (second petition); Commonwealth v. Cannady, 895 A.2d 645 (Pa. 

Super. 2006) (third petition); Commonwealth v. Cannady, 931 A.2d 42 (Pa. 

Super. 2007) (fourth petition); Commonwealth v. Cannady, 48 A.3d 489 

(Pa. Super. 2012) (sixth petition).
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Responses to the Notice of Intent to Dismiss pursuant to Rule 907, 

where said court failed to properly apply the standards of Rule 907 

where the Notice only stated its intention to dismiss without

stating [whether] or not the PCRA was in fact untimely or being 

dismissed on any other grounds.

II. Did the PCRA court abuse its discretion as a matter of law by 

dismissing Appellant’s most recent PCRA petition as untimely 

without an evidentiary hearing where said facts were clearly based 

upon Newly-Discovered Facts relating to a Brady violation which

if proven entitled [Cannady] to an evidentiary hearing to 

determine if he met the requirements of 9545(b)(1)(ii).

Cannady’s Brief at 4.2

In his first issue, Cannady contends that the PCRA court’s Rule 907

notice was defective because it did not contain adequate reasoning for 

dismissing his petition as untimely, particularly about him invoking the newlydiscovered facts exception under 42 Pa.C.S. § 9545(b)(1)(ii). Cannady 

believes that the PCRA Court, by not specifically addressing the exception in 

its explanation for dismissal, deprived him of the opportunity to file a response 

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2 Whether a PCRA petition is timely filed is a question of law over which our 

standard of review is de novo and our scope of review is plenary. 

Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citations 

omitted). “The standard of review of an order dismissing a PCRA petition is 

whether that determination is supported by the evidence of record and is free 

of legal error.” Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa. Super.

2017). “[A] PCRA court has discretion to dismiss a PCRA petition without a 

hearing if the court is satisfied that there are no genuine issues concerning 

any material fact; that the defendant is not entitled to post-conviction 

collateral relief; and that no legitimate purpose would be served by further 

proceedings.” Commonwealth v. Brown, 161 A.3d 960, 964 (Pa. Super.

2017) (citations omitted).
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and seek leave to amend his petition and correct any material defects. We 

disagree.

As this Court has explained, “[t]he purpose behind a Rule 907 predismissal notice is to allow a petitioner an opportunity to seek leave to amend 

his petition and correct any material defects, the ultimate goal being to permit 

merits review by the PCRA court of potentially arguable claims.” 

Commonwealth v. Rykard, 55 A.3d 1177, 1189 (Pa. Super. 2012) (internal 

citation omitted).

After review, we find the PCRA court gave more than an adequate 

explanation of its intent to dismiss to allow Cannady an opportunity to seek 

leave to amend his petition and correct the material defects. Contrary to 

Cannady’s contentions, the Rule 907 notice unmistakably informed him that 

his “petition is untimely filed and does not invoke an exception to the 

timeliness provision of the [PCRA] 42 [Pa.C.S.] § 9545(b)(1)(i)-(iii).” Rule 

907 Notice, 6/17/21.

As the PCRA court explained:

This Court has reviewed your various petitions asserting 

numerous claims. Before this Court can consider the merits of 

your claims, it must address the timeliness of your petition,

because PCRA time limitations implicate this Court’s jurisdiction. 

Under the PCRA, your petition must be filed within one year of the 

date the judgment of sentence became final, unless one of the 

exceptions set forth in 42 Pa. Cons. Stat. § 9545(b)(l)(i)-(iii) 

applies.

Your judgement of sentence for first degree murder and 

other charges became final in 1991, ninety days after the 

Pennsylvania Supreme Court denied allocator, and the time for 
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filing a petition for writ of certiorari with the United States 

Supreme Court expired. See U.S. Sup. Ct. R. 13. Your petitions, 

filed on July 9, 2014, September 10, 2015, February 23, 2017, 

November 1, 2017 and March 19, 2018, were therefore manifestly 

untimely. See 42 Pa. Cons. Stat. §9545(b)(1). Thus, for this 

Court to have jurisdiction to review the merits of your claims, the

burden fell upon you to plead and prove that one of the 

enumerated exceptions to the timeliness provision set forth in 42 

Pa. Cons. Stat. §9545(b) applied to your case.

In your 2014 and 2015 petitions, you assert that the 

government failed to disclose alleged favorable treatment of a key 

witness, William Leak, including an alleged statement that the

Commonwealth withheld from you, wherein Leak said he was the 

killer. These allegations appear to be attempting to satisfy the 

governmental interference exception, § 9545 (b)(1)(i), by

claiming that the Commonwealth improperly withheld information 

from you. Although a Brady violation may fall within the 

governmental interference exception to the PCRA time-bar, the

petitioner must plead and prove the failure to previously raise the 

claim was the result of interference by government officials, and 

the information could not have been obtained earlier with the 

exercise of due diligence. Commonwealth v. Breakiron, 781 

A.2d 94, 98 (Pa. 2001). Here, you have failed to present any 

evidence in support of the allegations contained in your petitions, 

other than your statements in the petitions themselves. You 

have not specified when or how you discovered this 

information, and particularly, why you were not able to 

obtain this information previously, nor have you provided 

any corroborating documentation or evidence. As such, 

these claims do not overcome the timeliness exception.

Id. at 1-2 (emphasis added).

Cannady’s claim seems to be that because the PCRA court stated that 

he was attempting to invoke the governmental interference exception, he was 

unable to surmise that the PCRA court was also finding that he failed to 

properly invoke the newly-discovered evidence exception. To the contrary, as 

the above discussion shows, the PCRA court’s comment about the 
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governmental interference exception was not intended to be limiting, but 

instead, merely addresses Cannady’s assertion that the Commonwealth 

improperly withheld the information about the witness. In any event, as we 

have highlighted above, the PCRA court warned Cannady that he had failed to 

(1) disclose when or how he discovered the alleged new facts, (2) explain why 

he was unable to discover these new facts before, and (3) provide any 

corroborating documentation of evidence of the new facts. Besides the PCRA 

court stating that he failed to invoke any exception, this discussion 

unmistakably informed Cannady of the deficiency he would have needed to 

address in any response if he wished to avoid his petition being untimely. 

Thus, his first issue lacks merit.3

In his second issue, Cannady asserts that the PCRA court abused its 

discretion in not granting him an evidentiary hearing on his claim that the key 

witness at his trial testified under a promise of leniency, and that this would 

have constituted a newly-discovered fact for purposes of the timeliness 

exception under 42 Pa.C.S. § 9545(b)(1)(ii).

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3 Regardless of any defect in the Rule 907 notice, which we find there was 

none, no relief would be due. See Commonwealth v. Taylor, 65 A.3d 462, 

468 (Pa. Super. 2013) (holding that even if a notice of intent was not issued 

and the issue is raised on appeal, it does not automatically warrant reversal 

where the petition is untimely). As explained in the second issue, Cannady 

failed to properly plead and prove any of the timeliness exceptions, including 

the newly-discovered facts exceptions.
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A PCRA petition, “including a second or subsequent petition, shall be 

filed within one year of the date the judgment becomes final.” 42 Pa.C.S.

§ 9545(b)(1). “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.” 42 Pa.C.S. § 9545(b)(3). Because the timeliness requirements 

of the PCRA are jurisdictional in nature, courts cannot address the merits of 

an untimely petition. See Commonwealth v. Moore, 247 A.3d 990, 998

(Pa. 2021).

Cannady’s judgment of sentence became final in 1991. Because he did 

not file this petition until 2014, it is facially untimely and he must plead and 

prove the exceptions to the PCRA’s timeliness requirements. The exceptions 

to the PCRA’s jurisdictional time-bar are set forth in 42 Pa.C.S. § 9545(b)(1), 

which provides as follows:

(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:

(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 
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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. § 9545(b)(1)(i)-(iii). Any petition invoking one of these exceptions 

“shall be filed within one year of the date the claim could have been 

presented.” 42 Pa.C.S. § 9545(b)(2).

Cannady alleges he was unaware that the main witness at his trial, 

William Leak, testified under a grant of leniency. Cannady, however, learned 

about this during trial and moved for a mistrial. As this Court summarized on 

direct appeal when Cannady challenged the trial court’s denial of a mistrial:

William Leak testified as a Commonwealth witness under a grant 

of immunity. When Cannady became aware of this during Leak’s 

direct examination, he moved for a mistrial, contending that the 

prosecution had failed to give timely notice thereof. The trial court 

determined that the failure to give notice had been unintentional 

and denied the motion for mistrial. However, the court granted 

an early recess so that the circumstances surrounding the grant 

of immunity could be fully investigated by Cannady’s counsel and 

directed the Commonwealth to supply such information. ...

Cannady, 590 A.2d at 359.

Cannady utterly fails to address this fact in his petition, nor does he 

attempt to explain why or how he would be unaware of this fact when he 

raised it both at trial and on direct appeal. Thus, the PCRA court correctly 

concluded that Cannady failed to properly plead a timeliness exception to the 

PCRA’s jurisdiction time-bar.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/8/2022