J

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

COMMONWEALTH OF PENNSYLVANIA

v.

DARRYL JENKINS

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1140 EDA 2023 Appeal from the PCRA Order Entered April 20, 2023 In the Court of Common Pleas of Bucks County Criminal Division at No: CP

- 09

- CR

- 0004817

- 2017
COMMONWEALTH OF PENNSYLVANIA

v.

DARRYL JENKINS

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1141 EDA 2023 Appeal from the PCRA Order Entered April 20, 2023 In the Court of Common Pleas of Bucks County Criminal Division at No: CP

- 09

- CR

- 0005615

- 2016

BEFORE: BOWES, J., STABILE, J., and DUBOW, J. MEMORANDUM BY STABILE, J.: FILED FEBRUARY 29, 2024 Appellant, Darryl Jenkins, appeals pro se from the order entered on April
20, 2023 in the Court of Common Pleas of Buck County (PCRA court) , which dismissed his petition for collateral relief under the Post Conviction Relief Act,
42 Pa.C.S.A. §§ 9541

- 9546, as untimely. Upon review, we affirm.

The factual and procedural background is not at issue here. Brief ly, a jury convicted Appellant of unlawful contact with a minor, corruption ofJ

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minors, and indecent assault

– person less than 16 years of age. On September 22, 2017, the trial court sentenced Appellant to an aggregate term

of 11 1⁄2 to 23 years’ incarceration for all convictions. We affirmed Appellant’s
judgment of sentence o n May 23, 2019. On November 14, 2019, our Supreme

Court denied Appellant’s petition for allowance of appeal. See

Commonwealth v. Jenkins , No. 981 EDA 2018 , unpublished memorandum (Pa. Super. filed May 23, 2019 ), appeal denied, 219 A.3d 1106 (Pa. 2019). On February 21, 2020, Appellant filed his first PCRA petition , and a fter

counsel was appointed , the petition was denied on August 24, 2021. Appellant
timely appealed to this Court on October 12, 2021

. We affirmed the order denying PCRA relief on July 14, 20 22. See Commonwealth v. Jenkins , No.

1968 EDA 202 1, unpublished memorandum (Pa. Super. filed July 14 , 2022). Appellant did not seek further review before our Supreme Court. On January 19, 2023, Appellant filed the underlying petition , 1 in which

he filed a motion for discovery and alleg ed the discovery of a Brady 2 violation

. On February 22, 2023, the PCRA court issued a notice of intent to dismiss , noting that the PCRA petition was untimely and meritless , and that the motion for discovery would be fruitless as the after

- discovered evidence claim was refuted in the petition itself

. In response, Appellant refiled his second PCRA

_________________ __________ ______ ____ _______

1 The petition was titled “Petition After

- Discovered Evidence .” The PCRA court treated it a s PCRA petition. Appellant does not challenge the PCRA court’s characterization.

2 Brady v. Maryland , 373 U.S. 83 (1963).J

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petition , along with the motion for discovery. On April 20, 2023, the PCRA

court denied Appellant’s petition and motion without a hearing. This appeal

followed.

The issues raised before us all pertain to the merits, not the timeliness, of the underlying petition. 3 While it is difficult to make sense of Appellant’s
repetitive and verbose filings, we can discern, within the various arguments
raised by Appellant , some discussion about the timeliness of his claim s . T he

thrust of the argument is that the instant petition is timely under the newly

discovered facts exception to the PCRA’s jurisdictional time

- bar

. The newly

discovered fact is the information about Ms. Patterson ( mother of the victim and Appellant’s then

- paramour) . Specifically, Appellant argues that the

Commonwealth committed a Brady violation by fail ing to inform Appellant

that Ms. Patterson was prescribed opioid narcotics . Appellant asserts that he

discover ed the new fact on December 8, 2022 , and filed the underlying
petition within 60 days (presumably referring to Section 9545(b)(2) ) 4 of the disposition of his previous appeal

.

_________________ __________ ______ ____ _______

3 See PCRA petition, 1/19/23, at 5 (unnumbered).

4 We note that subsection 9545(b)(2) was amended, effective December 24, 2018, to provide petitioners with one year to invoke a timeliness exception regarding “claims arising on Dec. 24, 2017 or thereafter.” 42 Pa.C.S. A. § 9545(b)(2); Section 3 of Act 2018, Oct. 24, P.L. 894, No. 146, effective in 60 days. Because the petition at issue here was filed on January 19, 2023 , after the effe c tive date of the amendment, the amendment is applicable here. In any event, the underlying petition was filed within 60 days of the discovery of (Footnote Continued Next Page)J

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On appeal,
[w]e review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. Commonwealth v. Burkett , 5 A.3d 1260, 1267 (Pa. Super. 2010). This review is limited to the findings of the PCRA court and the evidence of record. Id

. We will not disturb a PCRA court’s ruling if it is supported by evidence of record and is free of legal
error. Id.

. . . We grant great deference to the factual findings of the PCRA court and will not disturb those findings un less they have no support in the record. Commonwealth v. Carter , 21 A.3d 680, 682 (Pa. Super. 2011). However, we afford no such deference to its legal conclusions. Commonwealth v. Paddy , 15 A.3d 431, 442 (Pa. 2011); Commonwealth v. Reaves , 923 A.2d 1119, 1124 (Pa. 2007). Further, where the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Colavita , 993 A.2d 874, 886 (Pa. 2010).

Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
All PCRA petitions, “including a second or subsequent petition, shall be
filed within one year of the date the judgment becomes final,” 5 unless an

_________________ __________ ______ ____ _______ the new fact

. Because , as explained infra , Appellant failed to meet the newly

discovered facts exception, compliance with Section 9545(b)(2) is , however, of no moment

.

5 It is undisputed that the underlying PCRA petition is facially untimely. Appellant was sentenced on September 22, 2017 . On May 3, 20 19 , we affirmed the judgment of sentence. On November 14 , 2019, our Supreme Court denied Appellant’s petition for allowance of appeal. If no petition for writ of certiorari is filed with the United States Supreme Court, as in the instant case, the judgment of sentence becomes final at the expiration of the 90

- day peri od available to petition the United States Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13.1. Accordingly, Appellant’s judgment of sentence became final for purposes of the PCRA on February 12, 2020 . Appellant had one year to file a timely PCRA petition ( i.e. , February 12 , (Footnote Continued Next Page)J

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exception to timeliness applies. 42 Pa.C.S.A. § 9545(b)(1). 6 “The PCRA’s
time restrictions are jurisdictional in nature. Thus, if a PCRA petition is
untimely, neither this Court nor the [PCRA] court has jurisdiction over the
petition. Without jurisdiction, we simply do not have the legal authority to

address the substantive claims.” Commonwealth v. Chester , 895 A.2d 520,
522 (Pa. 2006) (internal citations and quotation marks omitted) (overruled on
other grounds by Commonwealth v. Small , 238 A.3d 1267 (Pa. 2020)). As
timeliness is separate and distinct from the merits of Appellant’s underlying
claims, we first determine whether this PCRA petition is timely

filed. Commonwealth v. Stokes , 959 A.2d 306, 310 (Pa. 2008)
(consideration of Brady claim separate from consideration of its timeliness).
If it is not timely, we cannot address the substantive claims raised in the
petition. Id.
As noted above, Appellant first claims that he discovered a Brady

violation and that he timely filed the underlying petition within the time

restrictions of Section 9545(b)(2)

.

_________________ __________ ______ ____ _______ 20 21 ). The underlying petition was filed on January 19 , 202 3 , which is approximately 2 years after his judgment of sentence became final. Thus, the underlying PCRA petition is facially untimely.

6 The one

- year time limitation can be overcome if a petitioner (1) alleges and proves one of the three exceptions set forth in Section 9545(b)(1)(i)

- (iii) of the PCRA, and (2) files a petition raising this exception within one year of the date the claim coul d have been presented. 42 Pa.C.S.A. § 9545(b)(2). At issue here is the newly

- discovered facts exception , Section 9545(b)(ii).J

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A Brady violation claim may qualify as a newly

- discovered fact, as long

as petitioner establish es that: 1) “the facts upon which the claim was
predicated were unknown” and 2) the fact “could not have been ascertained
by the exercise of due diligence.” 42 Pa.C.S. A. § 9545(b)(1)(ii) ; s ee also

Commonwealth v. Bennett , 930 A.2d 1264, 1271

- 72 (Pa. 2007). “ If the
petitioner alleges and proves these two components, then the PCRA court has
jurisdiction over the claim under this subsection. ” Bennett, supra (citing

Commonwealth v. Lambert , 884 A.2d 848, 85 2 (Pa. 2005) ).
Regarding the first claim, the PCRA first court noted that , Appellant, in
his own petition, stated:

The Facts in these violations are based in part of the resp o nde nts [sic] recoll ection of accounts that were not investigated by counsel of which the respondent did not find any relevance in at the time because of his lack of familiarity with the law.
PCRA Court Opinion, 6/20/23 , at 13 ( quoting PCRA petition, at 10).

The PCRA Court then concluded:
[a] lthough Appellant allege[s] that the C ommonwealth failed to disclose crucial witness information in that Ms. Patterson was prescribed opioid narcotics, the only person Ap p ellant alleges knew that fact is himself

. See [PCRA] petition , p. 13 (“I would not have known to bring it up to my counsel unless counsel asked me abo ut it and I saw no [relevance] in it at the time.”).
PCRA Court 6/20 /23, at 13. In light of the foregoing, because Appellant knew of Ms. Patterson’s
prescription medication , we agree with the PCRA court that there was no
Brady violation with respect t o this information. See Lambert , 884 A.2d atJ

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856 (citing Commonwealth v. Morris , 822 A.2d 684, 696 ( Pa. 2003) for the
proposition that no Brady violation occurs where appellant knew or could have
uncovered evidence with reasonable diligence ) . Moreover, because the facts underlying this claim were known to A ppellant, it does not qualify under the
newly

- discovered fact exception and, thus, is untimely. Lambert , supra . Appellant also argues extensively ( and confusingly ) that the Commonwealth failed to disclose exculpatory information ( i.e. , statements made by Ms. Patterson to Appellant to the effect that investigating officer did
not want Appellant in the residence ) prior to or around the time of Appellant’s

arrest.

While raised as a Brady violation (and possibly as a newly

- discovered fact) , Appellant fails to recognize that he knew about these statements evenJ

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- 8

-

b efore trial , 7 and that as such, do not qualify as a Brady violation or a newly

discovered fact. See Lamber t , supra. 8

_________________ __________ ______ ____ _______

7 In his petition, Appellant stated (verbatim) :
After watchi ng the encounter from the body cam footage respond a nt ’s counsel sa id he did not think [Appellant]’s would be suppressed. But at the time respondant did not think to tell his counsel about the statement from Ms Patterson and counsel did not ask about the br eif interaction she and [ Appellant ] ha d at the house that day.
Appellant’s Brief at 19 (un numbered). The PCRA court clarified the context of Ms. Patterson’s statements as follows: “When Appellant arrived at home on the date of his arrest, Ms. Patterson was waiting outside with [investigating officer] and told Appellant [ that investigating officer] did not want Appellant to enter the residence.” PCRA Opinion, 6/20/23, at 14, n.12.

8 To the extent Appellant ’s argument can be construed as alleging that Brady violations he identified here qualify as governmental interference for purposes of Section 9545(b)(1), we note that : The governmental interference exception permits an otherwise untimely PCRA petition to be filed if it pleads and proves that 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[.]

Commonwealth v. Staton , 184 A.3d 949, 955 (Pa. 2018) (internal quotation marks and citations omitted) . This exception requires a petitioner to “show that but for the interference of a government actor ‘he could not have filed his claim earlier.’” Id. ( quoting Stokes , 959 A.2d at 310 ).
Appellant, here, provides no facts that would remotely support a finding of governmental interference. To the contrary, the record shows that Appellant was fully aware of the alleged violation s but never thought of pursuing them as he did fully appreciate the ir relevance , if any

.J

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Finally, t o the extent that Appellant raises claims of ineffective

assistance of PCRA counsel suggesting that the PCRA court should have raised
sus sponte the ineffectiveness of PCRA counsel under Commonwealth v.
Bradley , 261 A.3d 381 (Pa. 2021) , 9 no relief is due

. Nowhere in Bradley did
our Supreme Court introduce such a rule. To the contrary, Bradley reiterates

that the burden remains on petitioner s to assert and prove PCRA counsel’s

ineffectiveness

. See Bradley , 261 A.3d at 402.

Order affirmed.



### Date: 2/29/2024

_________________ __________ ______ ____ _______

9 “[A] PCRA petitioner may, after a PCRA court denies relief, and after obtaining new counsel or acting pro se, raise claims of PCRA counsel ’ s ineffectiveness at the first opportunity to do so, even if on appeal.” Bradley , 261 A.3d at 401. “In some instances, the record before the appellate court will be sufficient to allow for disposition of any newly

- raised ineffectiveness claims[; h]owever, in other cases, the appellate court may need to remand to the PCRA court for further development of the record and for the PCRA court to consider such claims as an initial matter.” Id. at 402 (citations omitted).

“ To be entitled to a remand, [ appellant ] must provide more than mere boilerplate assertions of PCRA counsel ’ s ineffectiveness. That is, he must establish that there are issues of material facts concerning claims challenging counsel ’ s stewardship and that relief may be available .” Commonwealth v. Parrish , 273 A.3d 989, 1006 (Pa. 2022) (citing Bradley , 261 A.3d at 402)).