J-S52028-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BRIAN SAUERWINE, 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 791 EDA 2019

Appeal from the PCRA Order Entered February 25, 2019,

in the Court of Common Pleas of Lehigh County,

Criminal Division at No(s): CP-39-CR-0003289-2006, 

CP-39-CR-0003290-2006, CP-39-CR-0003292-2006.

BEFORE: OTT, J., KUNSELMAN, J., and MCLAUGHLIN, J.

MEMORANDUM BY KUNSELMAN, J.: FILED NOVEMBER 06, 2019

Brian Sauerwine appeals pro se from the order denying as untimely his 

serial petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 

Pa.C.S.A. §§ 9541-9546. We affirm. 

In a prior appeal denying post-conviction relief, the PCRA court 

summarized the pertinent facts underlying Sauerwine’s criminal convictions 

as follows:

On numerous occasions between 2003 and 2006, 

[Sauerwine] sexually assaulted his three [young] nieces. All 

of the girls were five years old or younger at the time of the 

abuse, which occurred when they visited [Sauerwine’s] 

house. [Sauerwine] sexually assaulted each girl in the same 

manner. He would first ask the young girl to sit on his lap. 

He would then proceed to rub and touch the girl’s buttocks 

and genitals. [Sauerwine] also digitally penetrated the

vagina of one of the girls. 
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The children eventually reported the abuse to the mother 

of one of the girls. On March 27, 2006, the mother relayed 

the reports of abuse to Lehigh County Children and Youth 

Services. The Commonwealth subsequently filed three 

criminal informations against [Sauerwine], one for each 

victim.

On April 16, 2007, [Sauerwine] entered a guilty plea to 

indecent assault, 18 Pa.C.S. §3126(a)(7) and (b)(ii), in each 

of these three cases. This crime, a felony of the third 

degree, is committed when a perpetrator has indecent 

contact with a child who is younger than 13 years of age. 

Under the plea bargain, all other charges, some of which 

were serious felonies, were withdrawn. The plea bargain 

also required that the court give minimum confinement 

sentences which did not exceed the standard range of the 

sentencing guidelines. There was no plea bargain as to 

whether the sentences would run concurrently or 

consecutively.

Commonwealth v. Sauerwine, 6 A.3d 559 (Pa. Super. 2010), unpublished 

memorandum at 1-2 (citing PCRA Court Opinion, 12/16/09, at 2). 

On October 22, 2007, the trial court sentenced Sauerwine, consistent 

with the plea bargain, to an aggregate sentence of twenty-seven months to 

fifteen years in prison. Although Sauerwine filed a post-sentence motion, he 

later withdrew it. Sauerwine did not file a direct appeal.

Sauerwine filed a pro se PCRA petition on January 14, 2009. The PCRA 

court appointed counsel, and PCRA counsel filed an amended petition. The 

PCRA court held an evidentiary hearing on April 29, 2009. By order entered 

July 20, 2009, the PCRA denied the petition. We affirmed the denial of postconviction relief on July 13, 2010. Sauerwine, supra. Our Supreme Court 

denied Sauerwine’s petition for allowance of appeal on December 1, 2010. 

Commonwealth v. Sauerwine, 13 A.3d 478 (Pa. 2010).
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Thereafter, Sauerwine again unsuccessfully sought post-conviction relief 

by filing PCRA petitions in 2014 and 2017. On October 23, 2018, Sauerwine 

filed the PCRA petition at issue, his fourth. On November 19, 2018, the PCRA 

court issued Pa.R.Crim.P. 907 notice of its intention to dismiss the petition 

because it was untimely, and Sauerwine failed to prove an exception to the 

PCRA’s time bar. Sauerwine filed a response. By order entered February 25, 

2019, the PCRA court dismissed Sauerwine’s petition. This appeal followed.1 

Both Sauerwine and the PCRA Court have complied with Pa.R.A.P. 1925.

Before addressing the issues Sauerwine raises on appeal, we must first 

determine whether the PCRA court correctly determined that his current PCRA 

petition was untimely filed. This Court’s standard of review regarding an order 

dismissing a petition under the PCRA is to ascertain whether “the 

determination of the PCRA court is supported by the evidence of record and is 

free of legal error. The PCRA court’s findings will not be disturbed unless there 

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1 Sauerwine’s pro se notice of appeal inappropriately lists three docket 

numbers. See generally, Commonwealth v. Walker, 185 A.3d 969 (Pa. 

2018). Our review of the record reveals, however, that in its February 25, 

2019 order, the PCRA court informed Sauerwine that he had thirty days in 

which to file “a Notice of Appeal. Recently, this Court concluded that to 

instruct a pro se litigant in this manner constituted a breakdown in court 

operations such that, rather than quash pursuant to Walker, we could 

address the merits of the appeal. See Commonwealth v. Stansbury, 2019 

WL 4197218, ___ A.3d. ___ (Pa. Super. 2019). Since there may have been 

confusion by this instruction, we will do the same.

 
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is no support for the findings in the certified record.” Commonwealth v. 

Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013) (citations omitted). 

Generally, a petition for relief under the PCRA, including a second or 

subsequent petition, must be filed within one year of the date the judgment 

is final unless the petition alleges, and the petitioner proves, that an exception 

to the time for filing the petition, set forth at 42 Pa.C.S.A. sections 

9545(b)(1)(i), (ii), and (iii), is met.2 A PCRA petition invoking one of these 

statutory exceptions must “be filed within 60 days of the date the claims could 

have been presented.” See Commonwealth v. Hernandez, 79 A.3d 649, 

651-52 (Pa. Super. 2013) (citations omitted); see also 42 Pa.C.S.A. § 

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2 The exceptions to the timeliness requirement are:

(i) the failure to raise the claim previously was the result of 

interference of 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.A. §§ 9545(b)(1)(i), (ii), and (iii).
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9545(b)(2).3 Asserted exceptions to the time restrictions for a PCRA petition 

must be included in the petition, and may not be raised for the first time on 

appeal. Commonwealth v. Furgess, 149 A.3d 90 (Pa. Super. 2016).

Here, because Sauerwine did not file a direct appeal to this Court, his 

judgment of sentence became final thirty days thereafter, or on November 21, 

2007. See 42 Pa.C.S.A. § 9545(b)(3). Thus, for purposes of the PCRA’s time 

bar, Sauerwine had to file his first PCRA petition by November 21, 2008. 

Sauerwine filed his fourth PCRA petition on October 23, 2018. Thus, the 

petition is patently untimely, unless Sauerwine has satisfied his burden of 

pleading and proving that one of the enumerated exceptions applies. See

Hernandez, supra.

Sauerwine has failed to plead and prove any exception to the PCRA’s 

time bar. In his fourth petition, Sauerwine did not acknowledge the PCRA’s 

time restrictions or the exceptions thereto. In his pro se brief, Sauerwine sets 

forth several claims of ineffectiveness of counsel. Such allegations cannot 

establish an exception to the PCRA’s time bar. See, e.g., Commonwealth 

v. Edmiston, 65 A.3d 339, 349 (Pa. 2013) (explaining that allegations of 

ineffectiveness of counsel will not overcome the jurisdictional timeliness 

requirements of the PCRA). Therefore, the PCRA court correctly determined 

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3 Section 9545(b)(2) has since been amended to enlarge this period from sixty 

days to one year. See Act of 2018, October 24, P.L. 894, No. 146, §§ 2 and 

3. The sixty-day time period applies in this appeal.
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that it lacked jurisdiction to consider the merits of the Sauerwine’s fourth PCRA 

petition. We therefore affirm its order denying post-conviction relief. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/6/19