J-S83027-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DENNIS A. HOWARD 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1522 EDA 2017

Appeal from the PCRA Order April 21, 2017

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

No(s): CP-51-CR-0000672-2007

BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J.

MEMORANDUM BY OLSON, J.: FILED FEBRUARY 06, 2018

Appellant, Dennis A. Howard, appeals pro se from the order entered on 

April 21, 2017, dismissing his third petition filed under the Post-Conviction 

Relief Act (PCRA), 42 Pa.C.S.A. § 9541-9546. We affirm.

On January 29, 2008, a jury found Appellant guilty of first-degree 

murder, possession of an instrument of crime, and persons not to possess a 

firearm.1 On January 30, 2008, the trial court sentenced Appellant to serve 

a mandatory term of life in prison without the possibility of parole for the 

first-degree murder conviction and to serve concurrent terms of 

imprisonment for the remaining convictions. We affirmed Appellant’s 

judgment of sentence on September 4, 2009 and the Pennsylvania Supreme 

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1 18 Pa.C.S.A. §§ 2502(a), 907(a), and 6105, respectively.
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Court denied Appellant’s petition for allowance of appeal on December 29, 

2009. Commonwealth v. Howard, 986 A.2d 1256 (Pa. Super. 2009) 

(unpublished memorandum) at 1-3, appeal denied, 987 A.2d 159 (Pa. 

2009).

On July 15, 2010, Appellant filed his first PCRA petition and the PCRA 

court appointed counsel to represent Appellant in the proceedings. 

Ultimately, the PCRA court dismissed Appellant’s PCRA petition and, on 

March 19, 2014, this Court affirmed the PCRA court’s order. 

Commonwealth v. Howard, 100 A.3d 312 (Pa. Super. 2014) (unpublished 

memorandum) at 1-9.

Appellant filed his second PCRA petition on April 7, 2014. The PCRA 

court dismissed the petition on January 30, 2015, we affirmed the dismissal 

on February 19, 2016, and the Pennsylvania Supreme Court denied 

Appellant’s petition for allowance of appeal on August 22, 2016. 

Commonwealth v. Howard, 141 A.3d 599 (Pa. Super. 2016) (unpublished 

memorandum) at 1-3, appeal denied, ___ A.3d ___, 208 EAL 2016 (Pa. 

2016).

Appellant filed the current PCRA petition – his third – on October 4, 

2016. Within the petition, Appellant acknowledged that his petition was 

facially untimely; however, Appellant claimed that his petition fell under the 

“governmental interference” exception to the PCRA’s time-bar. Appellant’s 

Third PCRA Petition, 10/4/16, at 11; see also 42 Pa.C.S.A. § 9545(b)(1)(i). 

Appellant claimed:
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[Appellant’s] Constitutional right of due process was clearly 

violated when government official[s] violated U.S. Supreme 

Court ruling Brady v. Maryland[, 371 U.S. 812 (1963)] 

refusing to turn over all evidence pertaining to [his] case . . 

. , a full autopsy report was conducted of the [decedent’s] 

internal, external examination, bullet track, pictures of the 

[decedent’s] injuries, entrance [and exit] wounds, video 

recording reduce[d] to writing, body chart. Constitutional 

law 840. Due process. The suppression by the prosecution 

of evidence favorable to and requested by an accused 

violates due process where the evidence is material either 

to guilt or to punishment irrespective of the good or bad 

faith of the prosecution.

Id. at 4 (some internal capitalization omitted).

Moreover, Appellant claimed that he first learned of his Brady claim 

after he filed a request for public records under Pennsylvania’s Right-toKnow Law (hereinafter “RTKL”). See 65 P.S. §§ 67.101 et seq. In 

particular, Appellant claimed, on February 25, 2016, he sought the 

“[c]ompleted autopsy report of [the decedent], bullet track, external 

examination, video recording reduced to writing, physical pictures, [and]

body chart of the victim” in his case. See Exhibit “A” to Appellant’s Third 

PCRA Petition, 10/4/16, at 1. 

On April 4, 2016, the Medical Examiner’s Office “sent a final response 

partially denying [Appellant’s right-to-know] request. Among the bases for 

the denial, the City asserted the criminal investigative records exemption 

found in Section 708(b)(16) of the RTKL.” Id. On May 20, 2016, the 

appeals officer of the Office of the District Attorney of Philadelphia finally

denied Appellant’s appeal under the RTKL. Id. at 1-3.
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On February 10, 2017, the PCRA court notified Appellant that it 

intended to dismiss his PCRA petition in 20 days, without holding a hearing. 

See PCRA Court Order, 2/10/17, at 1; Pa.R.Crim.P. 907(1). The PCRA court 

finally dismissed Appellant’s PCRA petition on April 21, 2017 and Appellant 

filed a timely notice of appeal to this Court. We now affirm the dismissal of 

Appellant’s patently untimely, serial PCRA petition.

“As a general proposition, we review a 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. Eichinger, 108 A.3d 

821, 830 (Pa. 2014). 

Before this Court can address the substance of Appellant’s claim, we 

must determine if this petition is timely. 

[The PCRA requires] a petitioner to file any PCRA petition 

within one year of the date the judgment of sentence 

becomes final. A judgment of sentence becomes final at 

the conclusion of direct review . . . or at the expiration of 

time for seeking review.

. . .

However, an untimely petition may be received when the 

petition alleges, and the petitioner proves, that any of the 

three limited exceptions to the time for filing the petition, 

set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are 

met. A petition invoking one of these exceptions must be 

filed within [60] days of the date the claim could first have 

been presented. In order to be entitled to the exceptions to 

the PCRA’s one-year filing deadline, the petitioner must 

plead and prove specific facts that demonstrate his claim 

was raised within the [60]-day timeframe.
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Commonwealth v. Lawson, 90 A.3d 1, 4-5 (Pa. Super. 2014) (some 

internal citations omitted) (internal quotations omitted).

In the present case, the PCRA court found Appellant’s petition to be 

untimely filed. PCRA Court Opinion, 6/21/17, at 1-8. We agree. 

Appellant’s judgment of sentence became final at the end of the day 

on March 29, 2010, which was 90 days after the Pennsylvania Supreme 

Court denied Appellant’s petition for allowance of appeal and Appellant’s 

time for filing a petition for writ of certiorari to the United States Supreme 

Court expired. See 42 Pa.C.S.A. § 9545(b)(3) (“A judgment becomes final 

at the conclusion of direct review, including discretionary review in the 

Supreme Court of the United States . . . , or at the expiration of time for 

seeking the review”); see also U.S. Sup. Ct. R. 13.1. The PCRA explicitly 

requires that a petition be filed “within one year of the date the judgment 

becomes final.” 42 Pa.C.S.A. § 9545(b)(1). As such, Appellant had until 

March 29, 2011 to file a timely PCRA petition. Since Appellant filed his 

current petition on October 4, 2016, the current petition is patently untimely 

and the burden thus fell upon Appellant to plead and prove that one of the 

enumerated exceptions to the one-year time-bar applied to his case. See

42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Perrin, 947 A.2d 1284, 

1286 (Pa. Super. 2008) (to properly invoke a statutory exception to the oneyear time-bar, the PCRA demands that the petitioner properly plead and 

prove all required elements of the relied-upon exception).
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Here, Appellant purports to invoke the “governmental interference” 

exception to the time-bar. This statutory exception provides:

(1) Any petition under this subchapter, including a second 

or subsequent petition, shall be filed within one year of the 

date the judgment 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[.]

. . .

(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.A. § 9545(b).

As our Supreme Court has explained, “[a]lthough 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. Stokes, 959 A.2d 306, 310 (Pa. 2008) (“the proper questions with 

respect to timeliness [under the governmental interference exception] are 

whether the government interfered with [a]ppellant's access to the [files], 

and whether [a]ppellant was duly diligent in seeking those files”).
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Within Appellant’s current petition, Appellant simply does not allege 

that government officials interfered with his ability to obtain or access the 

documents and Appellant never explains why he could not have obtained the 

files at an earlier time (such as at trial). See Appellant’s Third PCRA 

Petition, 10/4/16, at 1-18. Therefore, Appellant failed to properly plead the 

governmental interference exception to the PCRA’s one-year time-bar; and, 

since Appellant did not attempt to plead any other exception to the time-bar, 

we conclude that Appellant’s petition is time-barred and that our “courts are 

without jurisdiction to offer [Appellant] any form of relief.” Commonwealth 

v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011). 

Therefore, we affirm the PCRA court’s order, which dismissed 

Appellant’s third PCRA petition without holding a hearing.

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/6/18