J-S71009-16

* Retired Senior Judge assigned to the Superior Court. 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

JAMES MCINTOSH

Appellant No. 676 EDA 2016

Appeal from the PCRA Order February 10, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0210661-2001

BEFORE: BOWES, PANELLA AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.: FILED OCTOBER 19, 2016

James McIntosh appeals from the February 10, 2016 order dismissing 

his second PCRA petition as untimely filed. We affirm. 

On August 22, 1994, Appellant, Travis Hall, and several other men 

decided to rob Marie’s Variety Store, which contained drugs and cash and 

was located in Philadelphia. Travis Hall drove a van carrying his armed coconspirators to the targeted location, where Asley Espuet and Skirvy Powell 

were present. The assailants pretended to be police conducting a drug raid, 

and, when Powell attempted to escape, he was shot three times and 

wounded. After taking the money and cash, the cohorts forced Espuet into 

the van, and, during their escape, shot and killed him. 
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In 1996, Travis Hall was arrested in connection with a federal 

prosecution involving a bank robbery. Powell told authorities about the 

events of August 22, 1994; as a result, Appellant was taken into custody in 

2000 for his participation in the crimes. In July 2002, a jury convicted 

Appellant of second-degree murder, robbery, aggravated assault, 

kidnapping, criminal conspiracy, and possession of an instrument of crime. 

The court sentenced Appellant to life imprisonment for murder and a 

concurrent, aggregate term of twenty-seven and one-half to fifty-five years 

incarceration for the other offenses. 

After sentencing, Appellant filed a direct appeal, in which we affirmed, 

Commonwealth v. McIntosh, 849 A.2d 607 (Pa.Super. 2004) 

(unpublished memorandum). His subsequent petition for allowance of 

appeal was denied. Commonwealth v. McIntosh, 860 A.2d 489 (Pa. 

2004). While Appellant did not seek review in the United States Supreme 

Court, he filed a timely PCRA petition. Counsel was appointed and filed an 

amended PCRA petition. Relief was ultimately denied, and we affirmed on 

appeal. Commonwealth v. McIntosh, 964 A.2d 440 (Pa.Super. 2008) 

(unpublished memorandum), appeal denied, 980 A.2d 110 (Pa. 2009). 

Appellant filed his second PCRA petition on August 23, 2012, and 

amended it on April 5, 2013. After the court issued notice of its intent to 

dismiss the petitions without a hearing, Appellant responded with another 

amendment to the PCRA petition on July 5, 2015. On November 30, 2015, 
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Appellant filed a document that we will construe as a third amendment to 

the PCRA petition. This appeal followed the February 10, 2016 dismissal of 

Appellant’s petition for PCRA relief as time barred. 

Appellant’s brief does not contain a statement of issues involved; 

hence, we summarize his appellate positions: 1) he is entitled to relief under 

the Supreme Court’s pronouncement in Miller v. Alabama, 132 S.Ct. 2455 

(2012); 2) he properly invoked an exception to PCRA’s time constraints 

when he averred that the Commonwealth withheld exculpatory evidence 

relating to Commonwealth witnesses James Robert and Travis Hall; and 3) 

he satisfied the newly-discovered evidence exception in the November 30, 

2015 filing.1 

Initially, we observe that this Court reviews the “denial of PCRA relief 

to determine whether the findings of the PCRA court are supported by the 

record and free of legal error.” Commonwealth v. Roane, 142 A.3d 79, 86 

(Pa. Super. 2016) (quoting Commonwealth v. Treiber, 121 A.3d 435, 444 

(Pa. 2015)). Herein, the PCRA court dismissed Appellant’s PCRA petition as 

untimely. 

____________________________________________

1 We note that Appellant does not fully develop his latter two positions in his 

appellate brief, and instead, continually refers us to filings that he made in 

the trial court. While we could deem those issues waived, in the interests of 

justice we have endeavored to address them in a cogent manner. 
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All PCRA petitions must be filed within one year of the date a 

defendant’s judgment becomes final unless an exception to the one-year 

time restriction applies. 42 Pa.C.S. § 9545(b)(1). 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); see also Commonwealth v. Chester, 895 A.2d 520, 

522 (Pa. 2006).

To calculate the one-year filing deadline, we first determine when 

Appellant’s judgment of sentence became final. “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). Appellant’s petition for allowance of appeal was denied on 

September 14, 2004, and, since he did not seek review with the United 

States Supreme Court, his judgment of sentence became final ninety days 

thereafter, or on December 13, 2004. Miller, supra (where our Supreme 

Court denies allowance of appeal and no further review is sought, a 

defendant’s sentence becomes final when the ninety-day period for filing a 

petition for a writ of certiorari expires). Appellant had until December 13, 

2005, to file a timely PCRA petition, and the instant petition, presented in 

2012 and amended during 2013 and 2015, is patently untimely. There are 

three exceptions to the one-year time bar of § 9545:
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(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.

42 Pa.C.S. § 9545(b)(1)(i-iii). “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)(2).

Appellant first seeks relief under Miller v. Alabama, supra, which 

was made fully retroactive in Montgomery v. Louisiana, 136 S.Ct. 718 

(2016).2 Miller held that it was unconstitutional to impose a mandatory 

term of life imprisonment without parole on juvenile homicide offenders. 

Appellant asserts that the case created a newly-recognized constitutional 

right applicable to him and his claim falls within the exception contained in § 

9545(b)(1)(iii). The record establishes that Appellant was born in 1953 and 

was forty-one years old in 1994, when these crimes were committed. 

Appellant maintains that Miller has language suggesting that it may apply to 

____________________________________________

2 We observe that the Miller claim was presented in the 2012 PCRA petition, 

and was facially timely. 
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adults and that it should under the equal protection clause. However, 

Miller’s holding was firmly premised upon the unique characteristics of a 

juvenile’s mind in contrast to that of an adult. It does not imply to any 

extent that adults cannot be sentenced to a mandatory term of life 

imprisonment without parole. See Commonwealth v. Cintora, 69 A.3d 

759 (Pa.Super. 2013) (Miller inapplicable to a defendants who were 

nineteen and twenty-one when they committed murders). We reject 

Appellant’s equal protection argument as wholly undeveloped, and thus 

conclude that PCRA relief was properly denied in connection with Appellant’s 

invocation of Miller. 

Appellant also asserts that the Commonwealth violated Brady v. 

Maryland, 373 U.S. 83 (1963), by withholding evidence regarding two 

Commonwealth witnesses. “Although a Brady violation may fall within the 

governmental interference exception, 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. Abu-Jamal, 

941 A.2d 1263, 1268 (Pa. 2008); see also Commonwealth v. Porter, 35 

A.3d 4 (Pa. 2012). 

In his April 5, 2013 amendment, Appellant averred that the 

Commonwealth violated Brady by withholding evidence that Commonwealth 

witness James Roberts, who was arrested on February 24, 2011 for a 
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murder committed on February 1, 1999, was under investigation for that 

crime when he testified at Appellant’s 2002 trial. Appellant would have us 

surmise that the Commonwealth knew in 2002 that Roberts committed the 

1999 murder, even though Roberts was not arrested until 2011, and that 

this fact should have been disclosed to him for impeachment purposes. 

Appellant provides not a scintilla of proof that the Commonwealth 

knew in 2002 that Roberts committed the 1999 crime and shielded that fact 

from him. Bare assertions that the government was in possession of and hid 

evidence from a defendant, when those assertions are unaccompanied by 

any type of support, are insufficient to invoke the governmental interference 

exception. Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008). 

Additionally, Roberts was arrested in 2011, and this Brady claim was first 

presented in 2013. Appellant did not properly invoke the governmental 

interference exception for the additional reason that he failed to establish 

that he exercised due diligence in presenting this claim. 

Appellant’s next issue on appeal concerns Travis Hall. In his July 5, 

2015 amendment, Appellant raised another Brady violation by contending 

that he should have been informed by the prosecution that, during the 1996 

federal bank robbery investigation, Hall gave a statement similar to the one 

herein, i.e., Hall told police that he had driven the get-away car. See 

Commonwealth v. Roney, 79 A.3d 595 (Pa. 2013) (where the 

Pennsylvania Supreme Court set forth the contents of Hall’s 1996 statement 
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about his involvement in the bank robbery). Appellant asserts that he could 

have impeached Hall with the statement made in connection with the federal 

bank robbery.

In his July 5, 2015 amendment, Appellant averred that he first learned 

about Hall’s 1996 statement on June 9, 2015, from an unidentified jailhouse 

source. Not only was the Roney decision, which clearly outlined the 

contents of Hall’s statement, published on October 30, 2013, Appellant knew 

about Hall’s involvement in the 1996 bank robbery because it was revealed 

at Appellant’s 2002 trial that Hall was prosecuted and sentenced in that 

matter. Appellant proffers no explanation as to why, employing due 

diligence, he could not have discovered Hall’s 1996 statement before June 9, 

2015. Hence, we conclude that the governmental interference exception 

does not apply to this claim. 

Appellant’s final position is that he properly invoked the newlydiscovered facts exception in his November 30, 2015 amendment. This 

exception “requires petitioner to allege and prove that there were ‘facts’ that 

were ‘unknown’ to him and that he exercised ‘due diligence’” in discovered 

those facts. Commonwealth v. Bennett, 930 A.2d 1264, 1270 (Pa. 2007). 

Appellant’s averment relates to a June 29, 2015 affidavit, which was filed of 

record herein on November 30, 2015, from Richard Rasheed Corbin, a fellow 

inmate. Therein, Corbin attested that James Roberts told Corbin that he lied 

at Appellant’s trial. This claim is premised upon a hearsay statement made 
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by Roberts to Corbin. As our High Court articulated in Abu-Jamal, supra at 

1269, “a claim based on inadmissible hearsay does not implicate” the newly 

discovered evidence exception. Additionally, Appellant did not raise his 

claim within sixty days of when it first could have been presented. Corbin’s 

affidavit is dated March 28, 2015, and it was given to defendant on June 29, 

2015. Appellant did not present his claim based upon the affidavit until 

November 30, 2015, which was outside the sixty days permitted under § 

9545(b)(2). 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/19/2016