J-S34012-17

* Retired Senior Judge specially 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.

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 
J-S34012-17

- 2 -

130 (Pa.Super. 2004) (unpublished memorandum), appeal denied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(Pa.Super. 2012) (unpublished memorandum).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: 
J-S34012-17

- 3 -

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: 
J-S34012-17

- 4 -

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. 
J-S34012-17

- 5 -

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 
J-S34012-17

- 6 -

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. AbuJamal, 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