J-S29022-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ABDUL YUSUF HARDY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 832 EDA 2019

Appeal from the PCRA Order Entered February 25, 2019

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

No(s): CP-51-CR-0428501-1993, 

CP-51-CR-0428551-1993, CP-51-CR-0428571-1993, 

CP-51-CR-0428591-1993

COMMONWEALTH OF PENNSYLVANIA

v.

ABDUL YUSUF HARDY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 835 EDA 2019

Appeal from the PCRA Order Entered February 25, 2019

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

No(s): CP-51-CR-0428501-1993, 

CP-51-CR-0428551-1993, CP-51-CR-0428571-1993, 

CP-51-CR-0428591-1993

COMMONWEALTH OF PENNSYLVANIA

v.

ABDUL YUSUF HARDY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 836 EDA 2019

Appeal from the PCRA Order Entered February 25, 2019
J-S29022-20

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

No(s): CP-51-CR-0428501-1993, 

CP-51-CR-0428551-1993, CP-51-CR-0428571-1993, 

CP-51-CR-0428591-1993

COMMONWEALTH OF PENNSYLVANIA

v.

ABDUL YUSUF HARDY 

Appellant

:

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 837 EDA 2019

Appeal from the PCRA Order Entered February 25, 2019

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

No(s): CP-51-CR-0428501-1993, 

CP-51-CR-0428551-1993, CP-51-CR-0428571-1993, 

CP-51-CR-0428591-1993

BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY NICHOLS, J.: FILED FEBRUARY 23, 2021

Appellant Abdul Yusuf Hardy appeals from the order dismissing his 

fourth Post Conviction Relief Act1 (PCRA) petition as untimely and meritless. 

Appellant contends that the PCRA court erred because his “Brady/Giglio”

2

claim established a time-bar exception and required a new trial. We affirm.

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* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.

2 United States v. Giglio, 405 U.S. 150 (1972); Brady v. Maryland, 373 

U.S. 83 (1963).
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This Court previously summarized the factual background of Appellant’s 

underlying conviction as follows: 

In October of 1992, [Appellant] and two other men allegedly 

pistol-whipped Demond Jackson.[fn4] Approximately one month 

later, [A]ppellant was socializing in Jarrett’s bar. Attoy Davis and 

Hassan Muldrow were also present in the bar. Davis had 

previously informed Muldrow that [A]ppellant had participated in 

striking Jackson. Muldrow, who was intoxicated, approached 

[A]ppellant and confronted him with regard to his role in the 

beating. A heated argument ensued during which Muldrow’s 

friends, Davis, Sean Ballard[fn5] and Bernard Beard became 

involved. However, further conflict was avoided by the 

intervention of other bar patrons and/or acquaintances of the 

parties.

[fn4] One of the men whom [A]ppellant accompanied accused 

[Demond] Jackson of shooting his nephew, Harry. 

[Demond] Jackson denied committing this crime.

[fn5] Earlier that evening Sean Ballard and his friend, Ron 

Wyatte, had an altercation with Stanley Williams, one of 

[A]ppellant’s co-defendants. During this incident, Ballard 

spoke with Williams’ friend, Eric Crawley. Wyatte had been 

drinking and believed that a confrontation occurred. As a 

result, he intervened and punched or shoved Crawley. 

Williams came to Crawley's defense, punched Wyatte and 

displayed a .38 caliber weapon. Wyatte then left. Ballard 

purportedly smoothed things over between himself, Crawley 

and Williams by explaining that Wyatte had been drunk.

Ballard spoke with Attoy Davis regarding the argument with 

[A]ppellant. Ballard then departed. Upon exiting the bar, Sean 

Ballard was seen approaching or talking with a group of several 

men. Moments later, he was fatally shot in the abdomen by one 

of the men in the group. 

Shortly after the argument in the bar had ended, Beard, Muldrow, 

and a third friend, Earl Spearman, also left the bar and got into 

Beard’s vehicle.[fn6] Spearman, who was seated in the passenger 

seat heard gunshots and turned to see [A]ppellant firing upon the 

vehicle. Although wounded, Beard was able to drive a short 

distance before he lost consciousness and caused the car to crash. 

Spearman emerged from the shooting and accident unscathed. 
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Unfortunately, Beard and Muldrow sustained multiple gunshot 

wounds and died as a result of their injuries.

[fn6] Beard, Muldrow and Spearman left the bar before Sean 

Ballard.

Appellant was ultimately apprehended several months later and 

charged with various offenses arising out of the shootings. Three 

other men, Mack “Quidar” Alderman, Stanley Williams and 

Mohammed El-Akram were also arrested in connection with the 

above shootings. The charges against the four men were 

consolidated and a joint trial was held from May 23 through June 

17, 1994.[3] The jury convicted [A]ppellant of the offenses 

involving Beard, Muldrow and Spearman as well as the weapons’

violations. Appellant was acquitted of conspiracy and the murder 

of Ballard, however.

Commonwealth v. Hardy, 677 A.2d 1264, 02444 Philadelphia, 1994, at 1-

3 (Pa. Super. filed Feb. 26, 1996) (unpublished mem.) (some footnotes 

omitted). On June 17, 1994, after the jury was unable to reach a decision on 

the application of the death penalty for Appellant’s murder convictions, the 

trial court sentenced Appellant to two consecutive terms of life imprisonment.

____________________________________________

3 We add that at trial, the Commonwealth introduced Demond Williams’ prior 

inconsistent statement to police regarding “the pistol-whipping incident” as 

substantive evidence of Appellant’s motive for the shooting. See Hardy, 

02444 Philadelphia, 1994, at 8-10 (rejecting Appellant’s direct appeal claims 

that the trial court erred in admitting prior bad acts evidence and that Demond 

Williams’ prior statements should not have been admitted as substantive 

evidence). 

In addition to Spearman’s testimony identifying Appellant as the person who 

shot into the car, the Commonwealth presented evidence from Clarence 

Reeder about the fight inside the bar and the shootings, as well as Reeder’s 

identification of Appellant as one of the shooters. 
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This Court affirmed the judgments of sentence on February 26, 1996, 

and our Supreme Court denied allowance of appeal on November 27, 1996. 

Commonwealth v. Hardy, 686 A.2d 1308 (Pa. 1996). Appellant did not file 

a petition for writ of certiorari in the United States Supreme Court. 

Appellant unsuccessfully sought post-conviction relief in a timely, first 

PCRA petition, as well as two untimely PCRA petitions.4 Appellant, through 

present counsel, filed the instant PCRA petition, his fourth, on January 8, 

2018, alleging: 

12. The petition is “timely” under the exception to the PCRA for 

governmental interference based on the suppression of 

exculpatory or impeachment material under Brady/Giglio. The 

materials involved were part of the public record but not available 

to [Appellant] who was incarcerated. [Appellant] was only able to 

get the materials when a friend of the family hired a lawyer to 

represent him.

13. Based on exceptional circumstances, I respectfully request 

the Court order the production of the prosecution’s H-File[5] and 

the production of exculpatory or impeachment material relative to 

all witnesses including [Demond] Jackson, Reeder and Spearman 

under Brady/Giglio.

14. The issues which I have raised in this petition have not been 

finally litigated or waived because of the following: claims of 

ineffective assistance of counsel must be presented in a PCRA 

____________________________________________

4 Appellant was appointed PCRA counsel for his first PCRA petition. See 

Commonwealth v. Hardy, 3753 Philadelphia 1998, at 3 (Pa. Super. filed 

Feb. 2, 2000). Appellant also unsuccessfully sought relief in a federal habeas 

corpus proceeding in 2003. 

5 Our Supreme Court has referred to an “H-file” as an investigating homicide 

detective’s file. See Commonwealth v. Natividad, 200 A.3d 11, 17 (Pa. 

2019).
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petition. Materiality of Brady material was discovered within the 

last 60 days.

PCRA Pet., 1/8/18, at 2-3. According to Appellant, the Commonwealth 

suppressed information that Demond Jackson and Reeder engaged in prior 

bad acts, had prior convictions, and obtained some benefit for testifying 

against him.

6

 See Mem. of Law, 1/8/18, at 15, 21-22. 

On September 17, 2018, the Commonwealth filed a motion to dismiss 

Appellant’s PCRA petition. The Commonwealth claimed that Appellant’s 

alleged new information concerning Demond Jackson did not establish an 

exception to the PCRA time bar. Mot. to Dismiss, 9/17/18, at 6. 

The Commonwealth further asserted that Appellant and his present 

counsel “were well-aware that Demond Jackson had testified in the other 

matter more than a year before” filing the instant petition in January 2018. 

Id. In support, the Commonwealth attached to its motion to dismiss a letter 

to Appellant from Appellant’s present counsel dated November 28, 2016, in 

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6 Although Appellant referenced Spearman in his petition, Appellant did not 

assert that he discovered new information regarding Spearman. Instead, 

citing the transcript of his own trial, he asserted that Spearman’s identification 

of Appellant was unreliable. See Mem. of Law, 1/8/18, at 22. 

We add that while Appellant cited to various trial transcripts that he allegedly

attached to his PCRA petition, Appellant did not provide those exhibits. 

Similarly, in his brief in this appeal, Appellant cites to transcripts that were 

allegedly included in a reproduced record. However, those citations do not 

correspond to any part of a trial transcript. Lastly, we note that the trial record 

and trial transcripts transmitted to this Court are incomplete. 
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which counsel discussed Demond Jackson. Id. at 6 & Ex. A. The 

Commonwealth stated: “[Appellant] apparently circulated this letter among 

his fellow inmates (and thereby waived attorney-client privilege), because at 

least one of the other defendants in the unrelated matter has attached it to 

his court filings, thereby making it accessible to the Commonwealth.”7 Id. at 

6 n.2. The Commonwealth did not discuss Appellant’s claim that it suppressed 

information regarding Reeder.8 

On November 19, 2018, Appellant filed a response in opposition to the 

Commonwealth’s motion to dismiss. Appellant restated his claims that he 

timely filed his PCRA petition in light of the Commonwealth’s Brady violation 

and that the new information required a new trial. Opp’n to Mot. to Dismiss, 

11/19/18, at 3-12. Appellant also denied the Commonwealth’s assertion that 

he was aware of the information regarding Demond Jackson for more than 

one year before filing the instant PCRA petition, stating:

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7 Among the results of a Westlaw search for “Francisco Azcona” is 

Commonwealth v. Trice, 2308 EDA 2017, 2018 WL 5783844 (Pa. Super. 

filed Nov. 5, 2018) (unpublished mem.). The results for a Westlaw search of 

“Demond Jackson” also lists Trice as a result, as well as an unpublished 

memorandum in Commonwealth v. Abdullah, 2029 EDA 2016, 2017 WL 

2261660 (Pa. Super. filed May 23, 2017) (unpublished mem.). As noted 

below, Appellant’s present counsel asserts that she represented Naree 

Abdullah at some point during the prosecution of Abdullah for the killing of 

Azcona. 

8 The Commonwealth further asserted that even if Appellant timely presented 

the information, he could not prove prejudice requiring a new trial because 

there was overwhelming evidence of his guilt based on the identifications by

Reeder and Spearman.
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It’s fair to say that [Appellant’s present] counsel represented 

Naree Abdullah at some point in the litigation [involving the killing 

of Azcona]. It’s fair to say that [counsel] was aware that Mr. 

Abdullah claimed that Demond Jackson was a liar. Even so, 

[counsel] could not reasonably believe that the Commonwealth 

would use a known liar to testify in two trials. Furthermore, the 

[PCRA c]ourt should hold a hearing to determine how [the 

Commonwealth] obtained a copy of a letter which was intended 

to be attorney-client privileged work product. 

Id. at 3. 

On January 28, 2019, the PCRA court issued a Pa.R.Crim.P. 907 notice 

of its intent to dismiss the instant PCRA petition. In its notice, the PCRA court 

checked a box next to the statement that “[t]he issues raised in the [PCRA]

petition filed by your attorney are without merit.” Notice, 1/28/19. Appellant 

filed a response that restated the issues raised in his PCRA petition and 

opposition to the Commonwealth’s motion to dismiss. 

On February 25, 2019, the PCRA court entered the order dismissing 

Appellant’s petition “based upon [l]ack of [m]erit.” Order 2/25/19. The PCRA 

court did not address Appellant’s claim that the Commonwealth’s inclusion of 

the November 28, 2016 letter from his present counsel violated an attorneyclient privilege. 

Appellant separately filed timely notices of appeal at each of the abovecaptioned trial court docket numbers.9

 The PCRA court did not order a 

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9 Each of the four records involved in this case contain an electronically filed 

notice of appeal stamped by the clerk of the court as accepted for review at 

four different times. Moreover, present counsel represented that she 

separately filed her notice of appeal in all four cases. The fact that all four 
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Pa.R.A.P. 1925(b) statement but filed a Rule 1925(a) opinion asserting that 

Appellant’s petition did not qualify for a timeliness exception and, in any event, 

failed to state a basis for PCRA relief.10 

Appellant, in his initial brief, presents the following issue for review:

The PCRA court abused its discretion when it denied the PCRA 

petition without first holding an evidentiary hearing into the claim 

that the convictions were the product of Brady/Giglio violations.

Appellant’s Brief at 2 (footnote omitted and some formatting altered). 

Appellant asserts that his claims that the Commonwealth failed to 

disclose information to impeach Demond Jackson and Reeder stated an 

exception to the PCRA time bar and established a basis for either a new trial, 

or a PCRA evidentiary hearing. Concerning the timeliness of his petition, 

Appellant cites Wearry v. Cain, 136 S. Ct. 1002 (2016), for the proposition 

that “Brady/Giglio claims cannot be time barred or defaulted in any event 

because such claims are regarded as hidden defects for which the prosecution 

is solely responsible.” Id. at 28. Further, relying on Dennis v. Sec'y, 

Pennsylvania Dep't of Corr., 834 F.3d 263, 285 (3d Cir. 2016), Appellant 

contends that “defense counsel has no obligation to hunt for Brady material, 

and that the U.S. Supreme Court has never stated that ‘due diligence’ is an 

element of a Brady claim.” Id. Essentially, Appellant contends that if “the 

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notices of appeal bore all four trial court docket numbers does not affect 

Appellant’s compliance with Commonwealth v. Walker, 185 A.3d 969 (Pa. 

2018). See Commonwealth v. Johnson, 236 A.3d 1141, 1144 (Pa. Super. 

2020) (en banc).

10 The PCRA court did not address Appellant’s claim regarding Reeder. 
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Commonwealth suppresses evidence vital to the defense, the Commonwealth 

may not defend the claim on an assertion that [a defendant] did not act with 

due diligence.” Id.

As to the merits of his claims, Appellant asserts that the information 

impeaching Demond Jackson and Reeder would have changed the outcome of 

the trial. Appellant contends that Demond Jackson’s testimony was critical to 

the Commonwealth’s theory that Appellant had motive to engage in the 

altercation at the bar and shoot into the vehicle. Id. at 34. Moreover, 

Appellant claims that the impeachment of Reeder’s identification of Appellant 

as one of the shooters could have changed the outcome of trial because 

Spearman’s testimony identifying Appellant as the person who shot into the 

car was not worthy of belief. Id. Appellant maintains that there was evidence 

indicating that he was not armed when he was in the bar, that he left the bar 

with a female before the shooting, and that there was no evidence indicating 

where he could have obtained a firearm before the shooting. Id. 

The Commonwealth responds that Appellant cannot establish a PCRA 

timeliness exception. Specifically, the Commonwealth emphasizes that 

because Appellant relies on information from separate and unrelated cases, 

there was no governmental interference. Commonwealth’s Brief at 8-9. The 

Commonwealth further claims that the information about Demond Jackson 

and Reeder was public information and therefore not Brady material. Id. at 

8-9. The Commonwealth adds that based on present counsel’s November 28, 

2016 letter to Appellant discussing Demond Jackson, Appellant cannot 
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establish that he filed his petition within one year of discovering the 

information. Id. at 7. 

Appellant filed a reply brief challenging, in part, the Commonwealth and 

the PCRA court’s suggestion that he possessed information regarding Demond 

Jackson in 2016 but waited until January 8, 2018, to file the instant PCRA 

petition. Appellant’s Reply Brief at 2. Appellant asserts that the suggestion

was “totally and completely false.” Id. Appellant requested that this Court 

require the Commonwealth “to explain the provenance of the letter[,]”

arguing:

Appellant believes the letter was attorney-client privileged 

correspondence taken from Naree Abdullah’s [a defendant in the 

killing of Azcona] by prison authorities from Naree Abdullah’s 

belongings as part of an investigation into who knew what about 

Demond Jackson and when. Appellant’s [present counsel] also 

represented Naree Abdullah. The Commonwealth has an ethical 

obligation to refrain from seizing attorney-client privileged 

correspondence. Appellant believes the Commonwealth should 

not reap a benefit from a violation of the attorney-client privilege. 

Id. at 3.11

Our review of the denial of PCRA relief is limited to “whether the record 

supports the PCRA court's determination and whether the PCRA court’s 

decision is free of legal error.” Commonwealth v. Lawson, 90 A.3d 1, 4 

(Pa. Super. 2014) (citation omitted). 

____________________________________________

11 The Commonwealth filed an application to file a response to Appellant’s 

reply brief, which this Court denied. 
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“[T]he timeliness of a PCRA petition is a jurisdictional requisite.” 

Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super. 2015). A PCRA 

petition, “including a second or subsequent petition, shall be filed within one 

year of the date the judgment becomes final” unless the petitioner pleads and 

proves one of three statutory exceptions. 42 Pa.C.S. § 9545(b)(1). The three 

statutory exceptions include the following:

(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). To invoke one of these exceptions, a 

petitioner raising a claim arising on or after December 24, 2017, must also file 

his petition within one year of the date the claim could have been presented. 

See 42 Pa.C.S. § 9545(b)(2). It is the PCRA petitioner’s “burden to allege 

and prove that one of the timeliness exceptions applies.” Commonwealth 

v. Albrecht, 994 A.2d 1091, 1094 (Pa. 2010) (citation omitted and some 

formatting altered).

Brady Violations as Exceptions to the PCRA Time Bar

Our Supreme Court has stated:
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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. Section 

9545(b)(1)(ii)'s exception requires the facts upon which the 

Brady claim is predicated were not previously known to the 

petitioner and could not have been ascertained through due 

diligence. [W]e clarified that § 9454(b)(1)(ii)'s exception does not 

contain the same requirements as a Brady claim, noting “we 

made clear the exception set forth in subsection (b)(1)(ii) does 

not require any merits analysis of the underlying claim. Rather, 

the exception merely requires that the ‘facts' upon which such a 

claim is predicated must not have been known to appellant, nor 

could they have been ascertained by due diligence.” 

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008) (citations 

omitted). A Brady claim may not be addressed on its merits until a PCRA

petitioner establishes that he timely filed his petition. See id.; 

Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008).

In Commonwealth v. Small, 238 A.3d 1267 (Pa. 2020), our Supreme 

Court abrogated the “public record presumption,” under which information 

that was a matter of public record could not be deemed “unknown” under 

Section 9545(b)(1)(ii). Small, 238 A.3d at 1286. Accordingly, the fact that 

information is “public” will not sustain a presumption that the information was

known to a petitioner for the purposes of an exception under Section 

9545(b)(1)(ii). 

However, Small relied on a statutory interpretation of Section 

9545(b)(1)(ii), which does not necessarily apply to Section 9545(b)(1)(i). 

Section 9545(b)(1)(i) requires a petitioner to establish suppression, or more 
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specifically, “interference by a governmental official,” to prove a timeliness 

exception. See 42 Pa.C.S. § 9545(b)(1)(i); Abu-Jamal, 941 A.2d at 1268; 

see also Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (noting 

that “[t]o prove a Brady violation, the defendant must show that: (1) the 

prosecutor has suppressed evidence; (2) the evidence, whether 

exculpatory or impeaching, is helpful to the defendant; and (3) the 

suppression prejudiced the defendant” (emphasis added)). Moreover, our 

Supreme Court has consistently stated that a petitioner must be duly diligent 

in discovering the information that gives rise to his Brady claim. Tharp, 101 

A.3d at 747; Stokes, 959 A.2d at 310 (noting that the proper questions with 

respect to timeliness of the petitioner’s Brady claim was whether the 

government interfered with the petitioner’s access to the postal service and 

police department files, and “whether the petitioner was duly diligent in 

seeking those files” (emphasis added)).

Here, Appellant does not dispute that his PCRA petition was untimely on 

its face. Instead, Appellant broadly claims that his petition qualified for an 

exception under Section 9545(b)(1)(i) because a defendant’s failure to 

exercise due diligence does not defeat a Brady claim. However, Appellant’s 

assertion goes to the merits of his underlying Brady claim and not the 

threshold question of whether he is entitled to relief under Section 

9545(b)(1)(i). Stokes, 959 A.2d at 310. Our Supreme Court has 

consistently rejected such an approach. See id. Therefore, we conclude that 
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Appellant’s principal legal argument fails.12 In any event, as discussed herein,

the record supports the PCRA court’s conclusion that Appellant failed to

establish a timeliness exception to the PCRA time bar.

Information Regarding Reeder

With respect to Reeder, Appellant acknowledges that he was aware of 

Reeder’s prior conviction for a 1991 burglary and the fact that Reeder received 

a favorable sentence for the conviction. Appellant’s Brief at 18. Quoting this 

Court’s unpublished memorandum from 2001 in an unrelated case, Appellant 

claims that the Commonwealth suppressed information that Reeder “is a 

known thief and robber who purportedly burglarized and stole cash, jewelry, 

and cocaine from a drug dealer’s residence in August[] 1991.” Id. (citation 

and quotation marks omitted). Appellant claims that the Commonwealth “only 

gave the jury a very sanitized version of Mr. Reeder’s criminal history” and 

that “[t]he jury was not informed that Mr. Reeder had a very long criminal 

history.” Id. 

Appellant further contends that the Commonwealth failed to disclose 

“benefits bestowed on . . . Reeder in exchange for his testimony.” Id. at 33. 

____________________________________________

12 We acknowledge that Appellant correctly argues that he is not required to 

show that he acted with diligence in discovering a claim of governmental 

interference based on a violation of the Commonwealth’s duty to disclose 

favorable evidence under Giglio and Brady. However, all of the cases 

Appellant cites in support of his argument discuss the merits of a Brady claim, 

and not the timeliness exception under Section 9545(b)(1)(i) and the PCRA’s 

requirement that a timeliness exception must be raised within the time 

prescribed by Section 9545(b)(2). 
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Specifically, Appellant alleges that the Commonwealth did not disclose the 

quashal of a firearms offense and “benefits given Reeder’s son.” Id. at 33. 

The Commonwealth responds that Appellant improperly cites to an 

unpublished opinion issued before May 1, 2019. Commonwealth’s Brief at 8 

n.5; see also Pa.R.A.P. 126(b). Further, the Commonwealth contends that 

the information that Appellant relies on “came to light in another, separate 

trial,” and emphasizes that because the information was public, “it was not 

Brady material withheld by the Commonwealth in violation of the law or 

Constitution of either this Commonwealth or the United States.” 

Commonwealth’s Brief at 9. 

Instantly, aside from his reliance on an unpublished memorandum of

this Court in an unrelated case, Appellant has provided no information or 

evidence that Reeder was “a known thief and robber,” who had a “very long 

criminal history,” or that he obtained benefits for his son. Further, Appellant 

failed to plead or prove that the Commonwealth actually suppressed or 

otherwise interfered with his ability to obtain this information. Lastly, 

Appellant does not allege that he exercised due diligence. Therefore, under 

these circumstances, we discern no reversible error in the PCRA court’s ruling,

and we conclude that Appellant failed to state a timeliness exception under 

Section 9545(b)(1)(i), and that no relief is due.

13

 

____________________________________________

13 In light of the absence of any “fact” supporting Appellant’s allegations, we 

further conclude that Appellant failed to establish any basis to prove that 

Appellant stated a timeliness exception under Section 9545(b)(1)(ii). 
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Information Regarding Demond Jackson

As to Demond Jackson, Appellant maintains that an unrelated 1996 trial 

concerning the killing of Francisco Azcona revealed the following:

[Demond] Jackson committed armed robberies, and sold drugs 

and the police looked the other way. [Demond] Jackson had open 

drug charges back in 1994. [Demond] Jackson was involved in a 

robbery/homicide in 1994 and never prosecuted for it. Jackson 

was shot in the hand on December 11, 1993 and he gave the 

police a completely false report for which he was never 

prosecuted. In February 27, 1995, Jackson gave a statement 

about the robbery/homicide of a grocery store.

Appellant’s Brief at 16-17 (citations omitted). Appellant continues, “[Q]uite 

remarkably none of this information about Demond Jackson was divulged by 

the prosecution despite the fact that [Demond] Jackson’s prior out-of-court 

statement and his in-court testimony were used to prove a motive [at 

Appellant’s trial].” Id. at 17. Appellant further asserts that “[t]he information 

that Mr. Jackson was an informant for the police was not divulged to 

[Appellant].” Id. at 19.

As with his previous claim, Appellant provides no evidentiary basis for 

his assertions that “the police looked the other way” while Demond Jackson

committed “armed robberies” or “sold drugs.” Moreover, to the extent 

Appellant’s argument relies solely on Demond Jackson’s testimony at a 

subsequent and unrelated trial, Appellant cannot establish that the failure to 
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disclose testimony in a later trial evidenced governmental interference under 

Section 9545(b)(1)(i).14 See Stokes, 959 A.2d at 310. 

Appellant’s Request For Remand

As discussed previously, the Commonwealth has consistently 

maintained that Appellant failed to satisfy Section 9545(b)(2), which required 

him to file a PCRA petition within the statutory time from the date his claim 

could have been raised. See Mot. to Dismiss at 6 n.2. In support of its 

assertion, the Commonwealth relied on present counsel’s November 28, 2016 

letter to Appellant. See id. Although Appellant objected to the use of the 

letter in the PCRA court, the PCRA court did not address the objection and 

instead referred to the letter as evidence that Appellant did not promptly file 

the instant petition. As noted above, Appellant requested a remand to 

consider how the Commonwealth came into possession of the letter. See

Appellant’s Reply Brief at 3.

____________________________________________

14 Moreover, Appellant alleged no due diligence to support his claim that he 

discovered a previously unknown fact under Section 9545(b)(1)(ii). Unlike 

the information discussed in Small and Commonwealth v. Burton, 158 A.3d 

618 (Pa. 2017), Appellant’s characterization of testimony in a subsequent 

legal proceeding falls short of stating a “fact.” For example, in Small, the 

petitioner initially relied on statements in this Court’s decision discussing his 

codefendant’s testimony at trial and a subsequent PCRA hearing. Small, 238 

A.3d at 1273. The petitioner, however, eventually presented the PCRA court

with evidence based on the codefendant’s testimony at his own PCRA hearing. 

In Burton, the petitioner’s claim relied on information that a codefendant 

admitted to murdering the decedent and that an innocent man went to jail for 

crimes the codefendant committed. Burton, 158 A.3d at 622. Instantly, 

Appellant relies on his own characterization of Demond Jackson’s testimony 

without providing a foundation for his assertions, such as the transcript from 

the trial for the killing of Azcona. 
J-S29022-20

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For the reasons stated above, we find it unnecessary to consider the 

letter when determining that Appellant did not establish a time bar exception 

under Section 9545(b)(1)(i). In any event, we note that the Commonwealth 

asserted that it obtained the letter when a codefendant in the killing of Azcona 

filed it as part of a PCRA proceedings in that case. See Mot. to Dismiss at 6 

n.2. Appellant now claims that the Commonwealth obtained the letter during 

a search of one of present counsel’s other clients, who was also involved in 

the killing of Azcona. See Appellant’s Reply Brief at 3. However, Appellant 

did not raise this allegation in the PCRA court. Further, Appellant has failed 

to produce any evidence substantiating his claim that the Commonwealth 

improperly obtained the letter, nor did he rebut the Commonwealth’s assertion

that Appellant communicated the information to a third party who then placed 

the letter at issue in a separate PCRA proceeding. Under these circumstances, 

we discern no basis to remand for a determination concerning the propriety 

of the Commonwealth’s use of the November 28, 2016 letter. 

Conclusion

For the reasons stated herein, we find no error in the PCRA court’s 

conclusion that Appellant’s instant PCRA petition was untimely filed. Appellant

has not established meritorious arguments as he has failed to plead and prove 

that the Commonwealth interfered with his ability to his raise his claims prior 

to the instant filing. Moreover, Appellant has not raised any basis for a remand 

to determine how the Commonwealth came into possession of the November 

28, 2016 letter. Accordingly, finding no legal error or abuse of discretion, we 
J-S29022-20

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affirm the PCRA court’s order dismissing Appellant’s petition as untimely. See 

Lawson, 90 A.3d at 4. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/23/2021