J-A15045-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BRIAN CHARLES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1209 MDA 2023

Appeal from the PCRA Order Entered August 4, 2023

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

No(s): CP-22-CR-0003727-1994

COMMONWEALTH OF PENNSYLVANIA

v.

BRIAN CHARLES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1210 MDA 2023

Appeal from the PCRA Order Entered August 4, 2023

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

No(s): CP-22-CR-0003728-1994

COMMONWEALTH OF PENNSYLVANIA

v.

BRIAN CHARLES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1211 MDA 2023

Appeal from the PCRA Order Entered August 4, 2023

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

No(s): CP-22-CR-0003729-1994

COMMONWEALTH OF PENNSYLVANIA :

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA
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v.

BRIAN CHARLES 

Appellant

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: No. 1212 MDA 2023

Appeal from the PCRA Order Entered August 4, 2023

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

No(s): CP-22-CR-0000456-1995

BEFORE: DUBOW, J., BECK, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: AUGUST 16, 2024

Appellant Brian Charles appeals from the order of the Court of Common 

Pleas of Dauphin County denying his petition pursuant to the Post Conviction 

Relief Act (PCRA).1 We affirm the dismissal of this untimely petition.

Appellant was arrested and charged in 1994 with criminal homicide, 

conspiracy, robbery, and related charges in connection with a crime spree in 

which several individuals committed multiple armed robberies on the same 

evening and fatally shot Michael Middleton. One of Appellant’s co-defendants, 

Shabon Tucker, entered a guilty plea in connection with his role and agreed 

to testify against Appellant at his trial. This Court previously summarized the 

procedural history of this case as follows:

On April 13, 1995, following a jury trial, [A]ppellant was found 

guilty of first degree murder, two counts of robbery, one count of 

robbery of a motor vehicle, one count of possession of prohibited 

offensive weapons, and four counts of criminal conspiracy. On 

May 19, 1995, [A]ppellant was sentenced to life imprisonment 

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* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S.A. §§ 9541-9546.
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followed by a consecutive term of five to ten years’ imprisonment. 

After a timely appeal was filed, this [C]ourt vacated [A]ppellant’s 

judgment of sentence on May 8, 1996, and remanded the case for 

an evidentiary hearing on [A]ppellant's ineffectiveness claims. 

Evidentiary hearings took place on June 28, 1996. The trial court 

held that [A]ppellant’s ineffectiveness claims were without merit 

and reinstated the judgment of sentence on September 19, 1996. 

On March 5, 1998, still on direct appeal, this [Court] affirmed the 

trial court’s decision denying [A]ppellant relief. Our [S]upreme 

[C]ourt denied allocatur on August 12, 1998. Appellant did not 

seek review with the United States Supreme Court.

Commonwealth v. Charles, 33 MDA 2017, at *2 (Pa.Super. filed December 

6, 2017 (unpublished memorandum)).

Thereafter, Appellant sought collateral review by filing two PCRA 

petitions which were denied and have no bearing on this appeal. On March 8, 

2023, Appellant filed the instant pro se PCRA petition in which he claimed the 

Commonwealth committed a due process violation pursuant to Brady v. 

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) by failing to 

disclose an understanding it had with Shabon Tucker, Appellant’s codefendant, that he would receive leniency from the prosecution in exchange 

for his testimony against Appellant. 

Appellant conceded that his petition was facially untimely but claimed 

he met both the governmental interference and newly discovered fact 

exceptions to the PCRA’s time limitations. Specifically, Appellant asserted had 

been searching for Tucker’s criminal docket sheet for over two decades but it 

was not until March 4, 2022, that Appellant received information from a family 

friend that government officials had docketed Tucker’s sentencing file under 

another name, “Shavon Tucker.” Appellant argued that the “alteration of the 
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docket served to constructively impede any ability for [Appellant] to know of 

any deals, implications, or understandings of leniency between Tucker and the 

prosecutor in exchange for his cooperation and testimony against 

[Appellant].” Petition, 3/8/23, at 2.

As such, Appellant indicated he only recently secured Tucker’s 

September 15, 1995 sentencing transcript which Appellant alleged contained 

evidence supporting his claim that Tucker had received a “hugely mitigated 

sentence” in exchange for his testimony and this understanding had not been 

disclosed by the prosecution in violation of Brady. Petition, at 17. While 

Appellant cited to Tucker’s sentencing transcript, Appellant did not attach the 

transcript to the petition despite claiming that he had done so.

On April 5, 2023, the Commonwealth filed a response arguing that 

Appellant’s petition was patently untimely. While the Commonwealth 

admitted Tucker was charged for the shared offenses under the alias of

“Shavon Tucker,” it claimed it was not responsible for creating Tucker’s alias, 

but it was Tucker who created the rendition of his name. The Commonwealth 

argued that Tucker’s docket sheets have been accessible to the public and 

Appellant has failed to show due diligence in searching using Tucker’s alias.

In addition, the Commonwealth asserted that there was no Brady 

violation as the prosecution disclosed all relevant information to the defense.

In his testimony at Appellant’s trial, Tucker asserted that he had entered an 

open guilty plea to robbery and two counts of conspiracy to commit robbery 

with Appellant and two other co-defendants. Commonwealth Response, 
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4/5/23, at 11 (citing Notes of Testimony (N.T.), Trial, 4/10/95 - 4/13/95, at 

190-92). The Commonwealth pointed out that Tucker indicated at Appellant’s 

trial that his cooperation with the prosecution was going to be made known to 

the trial court at sentencing on his charges. Commonwealth Response, at 12 

(citing N.T., Trial, at 190-92). Further, the Commonwealth argued that 

Appellant did not support its allegation that Tucker received undisclosed 

leniency as he failed to attach Tucker’s sentencing transcript to his petition as 

required by Pa.R.Crim.P. 902.

On June 14, 2023, the PCRA court filed an order and opinion in which it 

gave notice of its intent to dismiss the petition without a hearing pursuant to 

Pa.R.Crim.P. 907. On July 5, 2023, Appellant filed a pro se objection to the 

PCRA court’s Rule 907 notice.

On August 4, 2023, the PCRA court entered an order formally dismissing 

the petition, finding that Appellant had failed to establish one of the PCRA 

timeliness exceptions. The PCRA court found that a public docket search 

reveals numerous criminal dockets under both Shabon and Shavon Tucker and 

links the names as aliases. Since the criminal docket sheets were available 

since Tucker’s sentencing in 1994, the PCRA court found Appellant failed to 

show that the facts of his underlying claim could not have been ascertained 

by due diligence within the timeliness restrictions of the PCRA. Further, the 

PCRA court rejected any suggestion that governmental officials impeded 

Appellant’s efforts to find Tucker’s docket sheets as it was Tucker himself who 

created the alias. This timely appeal followed.
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As a preliminary matter, it is well-established that “the PCRA's 

timeliness requirements are jurisdictional in nature and must be strictly 

construed; courts may not address the merits of the issues raised in a petition 

if it is not timely filed.” Commonwealth v. Walters, 135 A.3d 589, 591 

(Pa.Super. 2016) (citations omitted). Generally, a PCRA petition “including a 

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

judgment of sentence becomes final.” 42 Pa.C.S.A. § 9545(b)(1). A judgment 

of sentence becomes final at the conclusion of direct review or the expiration 

of the time for seeking the review. 42 Pa.C.S.A. § 9545(b)(3).

However, Pennsylvania courts may consider an untimely PCRA petition 

if the petitioner explicitly pleads and proves one of the three exceptions 

enumerated in Section 9545(b)(1), which are as follows:

(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.A. § 9545(b)(1)(i)-(iii). Additionally, the PCRA currently requires 

that “[a]ny petition invoking an exception ... shall be filed within one year of 

the date the claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).

“The PCRA petitioner bears the burden of proving the applicability of one of 
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the exceptions.” Commonwealth v. Spotz, 641 Pa. 717, 723, 171 A.3d 675, 

678 (2017).

As noted above, Appellant was sentenced on May 19, 1995, this Court 

affirmed the judgment of sentence on March 5, 1998, and the Supreme Court 

denied Appellant’s petition for allowance of appeal on August 12, 1998. As 

Appellant did not file a petition for a writ of certiorari with the Supreme Court 

of the United States, his judgment of sentence became final on November 12, 

1998, upon the expiration of the ninety-day period to seek certiorari review. 

Appellant filed the instant petition in March 2023, over twenty-four years after 

his judgment of sentence became final.

As noted above, Appellant attempted to invoke the governmental 

interference and newly-discovered fact exceptions to the PCRA time bar, 

asserting that the Commonwealth interfered with his ability to raise his Brady

claim sooner by failing to disclose that it had an understanding with Tucker 

that he would receive leniency in exchange for testifying against Appellant. In 

addition, Appellant faults the Commonwealth for failing to correct Tucker’s 

“lie” when he testified at Appellant’s trial that the prosecution had made no 

promises to him to induce him to serve as a witness against Appellant. 

Appellant asserts that Tucker’s transcripts show that the prosecution did 

indeed extend Tucker leniency and contends that he was prevented from 

finding the transcripts as Tucker’s criminal case was docketed under his alias.

We begin by noting that our courts have held that “[i]t is well-settled a 

Brady violation may fall within the governmental interference exception.” 
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Commonwealth v. Natividad, 650 Pa. 328, 356, 200 A.3d 11, 28 (2019)

(quoting Commonwealth v. Breakiron, 566 Pa. 323, 781 A.2d 94, 98 

(2001)). However, our Supreme Court has held that “[a]lthough a Brady

violation may fall within the governmental interference exception, the 

petitioner must plead and prove that the failure to previously raise the claim 

was the result of interference by governmental officials and that the 

information could not have been obtained earlier with the exercise of due 

diligence.” Commonwealth v. Abu-Jamal, 596 Pa. 219, 227, 941 A.2d 

1263, 1268 (2008) (citing Breakiron, 566 Pa. at 330-31, 781 A.2d at 98).

See also Commonwealth v. Stokes, 598 Pa. 574, 582–83, 959 A.2d 306, 

311–12 (2008) (same).

To satisfy the newly-discovered fact exception to the PCRA time bar, a 

petitioner must show that “he did not know the facts upon which he based his 

petition and could not have learned those facts earlier by the exercise of due 

diligence.” Commonwealth v. Balestier-Marrero, 314 A.3d 549, 554 

(Pa.Super. 2024) (quoting Commonwealth v. Brown, 111 A.3d 171, 176 

(Pa.Super. 2015)). “Due diligence demands that the petitioner take 

reasonable steps to protect his own interests. A petitioner must explain why 

he could not have learned of the new fact(s) earlier with the exercise of due 

diligence.” Commonwealth v. Myers, 303 A.3d 118, 121–22 (Pa.Super. 

2023) (quoting Commonwealth v. Williams, 35 A.3d 44, 53 (Pa. Super. 

2011)).
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We begin by noting that although Appellant’s claim is largely based on 

his contention that Tucker’s sentencing transcript shows that Tucker received 

undisclosed leniency in exchange for his testimony against Appellant, 

Appellant failed to attach the transcript to his petition, which is not a part of 

the record before us. Our rules of criminal procedure require that in a PCRA 

petition, “[t]he defendant shall attach to the petition any affidavits, records, 

documents, or other evidence which show the facts stated in support of the 

grounds for relief, or the petition shall state why they are not attached.” 

Pa.R.Crim.P. 902(D). 

However, while Appellant failed to attach the relevant transcript in 

violation of Rule 902, the PCRA court did not provide any indication in its Rule 

907 notice that it intended to dismiss Appellant’s petition without a hearing

based his failure to provide documents in support of his allegations. This 

notice would have given Appellant the opportunity to supplement his pro se 

petition with the missing transcript.

Even if we overlook this deficiency, we still affirm the order of dismissal 

due to Appellant's failure to plead or prove due diligence in pursuing collateral 

relief. We agree with the PCRA court’s finding that Appellant failed to show 

that he could not have uncovered Tucker’s sentencing transcript sooner with 

the exercise of due diligence. Appellant cannot claim he was diligent in his 

twenty-eight year search to uncover Tucker’s September 15, 1995 sentencing

transcript when Tucker’s docket sheets were publicly accessible. While 

Appellant claimed that he was prevented from finding Shabon Tucker’s docket 
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sheets as the relevant charges were docketed under his alias of Shavon 

Tucker, the PCRA court emphasized that “Mr. Tucker’s criminal history is 

[listed] under both names when a public search is completed under his aliases 

and birth date.” Rule 907 notice, 6/14/23, at 6. 

We are not persuaded by Appellant’s reliance on our Supreme Court’s 

decision in Commonwealth v. Small, 662 Pa. 309, 238 A.3d 1267 (2020), 

which held that there is no longer a “public record presumption” pursuant to 

which a court had been permitted to find that information available to the 

public is not a fact that was previously “unknown” to the petitioner. 

Nevertheless, the Small Court clarified that the fact “that [Appellant] is 

relieved of the public record presumption does not mean that [Appellant] 

prevails.... The textual requirements of the time-bar exception remain.” Id.

at 340, 238 A.3d at 1286. Therefore, “although Small eliminates the public 

record presumption, it does not abrogate the requirement that petitioners 

perform due diligence to discover the facts upon which their claim is 

predicated.” Myers, 303 A.3d at 123 (quoting Commonwealth v. Keener, 

No. 1165 WDA 2021, 2022 WL 2359373, at *4 (Pa.Super. June 30, 2022) 

(unpublished memorandum)).

2

Although Appellant admits that he was aware that Tucker was sentenced 

on September 15, 1995, Appellant failed to explain to the PCRA court or appeal 

what efforts he took in the nearly twenty-eight year time period between 

____________________________________________

2 We may cite to unpublished memorandum decisions of this Court filed after 

May 1, 2019, for their persuasive value. See Pa.R.A.P. 126(b).
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Tucker’s sentencing and the filing of the instant petition in 2023 to determine 

what sentence his co-defendant received. While Appellant contends that he 

was “searching” to uncover the results of Tucker’s sentencing for over two 

decades, this bald allegation does not establish due diligence. We are 

unpersuaded that the docketing of Tucker’s charges under his alias excused 

Appellant from decades of inaction when Tucker’s charges were listed under 

both his name and his alias.

We similarly reject that Appellant’s suggestion that that he was not 

required to exercise any due diligence in bringing his Brady claim in the 

instant petition as he alleges that the prosecution essentially “lied” when it

failed to correct Tucker’s claim at Appellant’s trial that he had not received 

any promises from the Commonwealth in exchange for his testimony. 

Appellant cites the Supreme Court’s decision in Commonwealth v. 

Bagnall, 661 Pa. 123, 235 A.3d 1075 (2020) to support his argument that 

Appellant was not required to “even attempt to look for never-disclosed Brady

material hidden in a separately charged co-defendant’s sentencing transcript 

... where the Commonwealth elicited testimony that no such impeachment 

information existed.” Appellant’s Brief, at 18. 

In Bagnall, the appellant raised a Brady claim on direct appeal alleging 

that the Commonwealth failed to disclose to the defense that one of the 

prosecution witnesses received consideration in exchange for his testimony. 

The Office of the Attorney General (OAG), which had assumed Bagnall’s 

prosecution after the district attorney’s office was deemed to have a conflict, 
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claimed to have no knowledge of a previous cooperation agreement between 

the witness and the district attorney’s office. On appeal, the Supreme Court 

determined that the OAG was imputed with knowledge of the cooperation 

agreement of a key witness in Bagnall’s trial with the district attorney’s office. 

Id. at 149, 235 A.3d at 1090.

In addition, the Supreme Court also found that the lower courts erred 

in rejecting Bagnall’s Brady claim on the basis of their finding that Bagnall did 

not exercise due diligence in seeking to obtain a transcript of the witness’s 

guilty plea proceedings, which occurred before Bagnall’s trial. Id. at 150, 235 

A.3d at 1091. The Supreme Court noted that Bagnall repeatedly requested 

information as to whether the witness had received consideration in exchange 

for his cooperation and had been met with repeated denials by the 

prosecution. Id. at 150, 235 A.3d at 1091. The Supreme Court observed that 

Bagnall sought transcription of the witness’s plea proceedings which vaguely 

noted that the witness received leniency in light of his “cooperation.” Id. at

150-51, 235 A.3d at 1091. Given this ambiguity, Bagnall subpoenaed the 

testimony of the witness’s defense counsel, who clarified that the witness had 

in fact received a mitigated sentence in exchange for his cooperation in the 

Bagnall’s case. Based on these facts, the Supreme Court determined that 

Bagnall’s efforts “were more than reasonable” in seeking to uncover the 

existence of the agreement between the witness and the prosecution.

In this case, Appellant emphasizes the Supreme Court’s statement in 

Bagnall which provided that “[d]ue diligence does not require [the appellant]
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to assume that the prosecution and [its witness] were untruthful.” Id. at 151, 

235 A.3d at 1092. However, the Supreme Court did not determine that an 

appellant is relieved of his duty to exercise due diligence in uncovering 

evidence to support a Brady claim, but instead highlighted that “whether due 

diligence has been exercised is a fact-specific inquiry determined on a caseby-case basis; it does not require perfect vigilance and punctilious care, but 

merely a showing that the party has put forth a reasonable effort to obtain 

the information upon which a claim is based.” Id. at 151, 235 A.3d at 1091

(brackets and citation omitted, emphasis added).

While the PCRA court in this case did not assess the merits of whether 

there actually was an undisclosed agreement between Tucker and the 

prosecution in exchange for his testimony against Appellant, we agree that 

Appellant has failed to show that he put forth a reasonable effort to obtain 

evidence of the alleged agreement between Tucker and the prosecution. 

While Tucker testified at Appellant’s trial that he had hoped to receive leniency 

for his testimony against Appellant, Appellant failed to explain what efforts he 

made in the twenty-four years between Tucker’s 1995 sentencing and the 

filing of this petition to determine the outcome of Tucker’s 1995 sentencing

hearing. We cannot find the docketing of Tucker’s charges under his alias 

excused Appellant from his due diligence requirement when the relevant 

charges noted both Tucker’s name and alias.
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As Appellant has not satisfied either of his claimed exceptions to the 

PCRA's timeliness requirement, we affirm the PCRA court's order dismissing 

his petition.

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 8/16/2024