J-S59003-16 

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

COMMONWEALTH OF PENNSYLVANIA, 1 IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

v. 

ANDRE ROMERO, 

Appellee 

Appellant No. 2143 EDA 2015 

Appeal from the PCRA Order Entered June 4, 2015 

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP- 51 -CR- 0102891 -2006 

BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD, J.* 

MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 08, 2016 

Appellant, Andre Romero, appeals from the post- conviction court's 

June 4, 2015 order that denied, as untimely, his petition filed under the Post 

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

Briefly, Appellant was arrested and charged with various sexual 

offenses based on his assault of a six -year -old girl in a private room of a 

church while the church service was in progress. The girl immediately 

reported the incident and identified Appellant as her attacker. Appellant's 

case proceeded to a non -jury trial in February of 2007. The PCRA court 

summarized the ensuing procedural history of Appellant's case, as follows: 

On February 2, 2007, [] Appellant ... was found guilty by 

this [c]ourt, of one (1) count of Involuntary Deviate Sexual 

* Former Justice specially assigned to the Superior Court. 
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Intercourse with a child (IDSI), a felony of the first degree; 

Indecent Assault, a misdemeanor of the second degree; Simple 

Assault, a misdemeanor of the second degree; Indecent 

Exposure, a misdemeanor of the first degree; and Corrupting the 

Morals of a Minor..., a misdemeanor of the first degree. 

On May 2, 2007, this [c]ourt sentenced [] Appellant to six 

to twelve (6 -12) years of incarceration for the ISDI [offense] and 

no further penalty was imposed on the remaining charges. A 

timely appeal was filed, however since no appellate brief was 

filed, that appeal was dismissed on April 22, 2008. On October 

30, 2008, counsel filed a [PCRA] ... petition. On October 13, 

2009, this [c]ourt issued a ... Dismissal Notice pursuant to 

Pennsylvania Rule of Criminal Procedure 907. The PCRA petition 

was dismissed on November 13, 2009. An [a]ppeal was filed 

and the Superior Court affirmed the PCRA [c]ourt's dismissal of 

the PCRA petition on February 18, 2011. [Commonwealth v. 

Romero, 24 A.3d 458 (Pa. Super. 2011) (unpublished 

memorandum).] Appellant filed a Petition for Allowance of 

Appeal in the Pennsylvania Supreme Court which was denied on 

August 9, 2011. [Commonwealth v. Romero, 26 A.3d 1102 

(Pa. 2011).] 

Appellant's instant PCRA petition, his second, was filed on 

August 8, 2012 and was amended on November 14, 2012. A 

supplemental amended petition was filed for Appellant on August 

8, 2013. On May 15, 2015, this [c]ourt, after having reviewed 

all of the relevant pleadings and notes of testimony, filed a 

[Rule] 907 Dismissal Notice. Appellant filed a response to the 

Rule 907 Notice on June 4, 2015. On that same day, following a 

hearing, this second PCRA was formally dismissed as having 

been untimely filed. A Notice of Appeal was filed on July 4, 

2015, and on July 13, 2015, this [c]ourt ordered [] Appellant, 

pursuant to Pennsylvania Rule of Appellant Procedure 1925(b) to 

file a concise ... statement of errors complained of on appeal. 

Appellant filed a [Rule 1925(b)] Statement ... on August 3, 2015, 

however, on September 14, 2015, this [a]ppeal was dismissed 

for failure to file a docketing statement. On October 2, 2015, 

the Superior Court [v]acated its prior dismissal order and 

reinstated Appellant's appeal. 

PCRA Court Opinion (PCO), 11/30/15, at 1 -2 (footnotes omitted). 

On appeal, Appellant presents three questions for our review: 

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1. Whether the court incorrectly ruled that the petition was 

untimely where current counsel alleged in the petition that the 

confidential informant /police officer approached current counsel, 

advised counsel what he had seen inside the District Attorney's 

file, was advised to have [Appellant's] mother contact current 

counsel and she did so, where counsel thereafter advised 

[Appellant] of the discovered information, and where current 

counsel filed a PCRA Petition within 60 days of her discussion 

with the confidential informant /police officer? 

2. Whether the PCRA [c]ourt erred in failing to hold an in camera 

hearing with the alleged confidential informant /police officer 

regarding his observations within Appellant's DA's Office file and 

his conversations with the assigned Assistant District Attorney 

thereafter when the officer observed a statement from: a 

witness (named Bernie or Avery) that, in violation of Brady,['] 

was not provided to the defense prior to trial where the 

statement was from a Hispanic male who was dressed in a green 

Eagles shirt during the church service; was related to witnesses 

who questioned Appellant before police arrival and who testified 

at trial; where the other male was close in age to [] Appellant; 

and where this male had access to the complainant during the 

alleged time of the incident? 

3. Where trial counsel, as an officer of the court, represented 

that these were facts told directly to her, and that the 

confidential informant /police officer would be subject to negative 

ramifications or disciplinary action from the police department 

for sharing his findings in an open court or in a signed written 

affidavit, did the court err in failing to grant additional time to 

obtain written documentation or affidavit from the confidential 

informant /police officer, and /or whether the court erred in failing 

to conduct an in camera interview to make findings regarding 

the credibility of the confidential informant /police officer, and to 

hold an evidentiary hearing to determine whether [Appellant] 

received a fair trial when this exculpatory evidence [was 

unavailable]? 

Appellant's Brief at 3 -4. 

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

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This Court's standard of review regarding an order denying a petition 

under the PCRA is whether the determination of the PCRA court is supported 

by the evidence of record and is free of legal error. Commonwealth v. 

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the 

timeliness of Appellant's petition, because the PCRA time limitations 

implicate our jurisdiction and may not be altered or disregarded in order to 

address the merits of a petition. See Commonwealth v. Bennett, 930 

A.2d 1264, 1267 (Pa. 2007). Under the PCRA, any petition for post - conviction relief, including a second or subsequent one, must be filed within 

one year of the date the judgment of sentence becomes final, unless one of 

the following exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i) -(iii) applies: 

(b) Time for filing petition.- - (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; 

(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. 

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42 Pa.C.S. § 9545(b)(1)(i)- (iii). Any petition attempting to invoke one of 

these exceptions "shall be filed within 60 days of the date the claim could 

have been presented." 42 Pa.C.S. § 9545(b)(2). 

Here, Appellant's judgment of sentence became final on May 22, 2008, 

thirty days after this Court dismissed his appeal from the judgment of 

sentence. See 42 Pa.C.S. § 9545(b)(3) (stating that a judgment of 

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

the time for seeking the review); Pa.R.A.P. 1113(a) (stating that "a petition 

for allowance of appeal shall be filed with the Prothonotary of the Supreme 

Court within 30 days of the entry of the order of the Superior Court sought 

to be reviewed "). Accordingly, his petition filed on August 8, 2012, was 

patently untimely and, for this Court to have jurisdiction to review the merits 

thereof, Appellant must prove that he meets one of the exceptions to the 

timeliness requirements set forth in 42 Pa.C.S. § 9545(b). 

Instantly, Appellant argues that he meets the after -discovered 

evidence exception of section 9545(b)(1)(ii), and the governmental 

interference exception of section 9545(b)(1)(i). In support of these 

arguments, he claims that a police officer (whom Appellant does not name, 

and whom he did not identify in his petitions filed below) informed his 

current PCRA counsel that the Commonwealth failed to turn over to 

Appellant, during pretrial discovery, a statement from an individual named 

"Bernie." According to Appellant, Bernie's statement would have supported 

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a defense that Bernie was the perpetrator of the crimes for which Appellant 

was convicted. Specifically, Appellant maintains that, 

the statement from Bernie included information indicating 

Bernie: was present during the church services at [the church 

where the incident occurred] at the time of the incident; [he] 

wore an Eagles shirt to church that day[, as did Appellant]; [he] 

was close in age to [] Appellant on the date of the incident; and 

[he] told police he saw the complainant at or near the bathroom 

at the time of the incident. 

Appellant's Brief at 11. Appellant avers that the Commonwealth's 

withholding Bernie's statement violated Brady and constitutes governmental 

interference under section 9545(b)(1)(i) He also contends that Bernie's 

statement is after -discovered evidence that satisfies section 9545(b)(1)(ii). 

However, our review of the record reveals that Appellant did not 

properly raise either of these timeliness exceptions before the PCRA court. 

In Appellant's counseled PCRA petition filed on August 8, 2012, he made no 

mention of, let alone any attempt to plead or prove, the applicability of 

either of these timeliness exceptions. See Appellant's PCRA Petition, 

8/8/12, at 1 -4. Indeed, Appellant asserted at the end of his petition that it 

was timely -filed. Id. at 4. Moreover, Appellant did not even mention his 

discovery of Bernie's statement at all. Instead, he simply quoted the 

boilerplate language of section 9543(a)(2)(vi), which states: "The 

unavailability at the time of trial of exculpatory evidence that has 

subsequently become available and would have changed the outcome of the 

trial if it had been introduced." Id. at 3. However, section 9543(a)(2)(vi) 

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only applies to timely -filed petitions that assert after -discovered evidence 

claims; "a facially untimely PCRA petitioner attempting to raise a substantive 

after -discovered -evidence claim must first establish jurisdiction by pleading 

and proving an exception to the PCRA time -bar." Commonwealth v. 

Brown, 111 A.3d 171, 179 (Pa. Super. 2015). Here, Appellant clearly, 

failed to meet this burden in his initial petition filed on August 8, 2012. 

We acknowledge that Appellant filed two amendments to his August 

8th petition - one in November of 2012, and one in August of 2013. Initially, 

nothing in the record demonstrates that Appellant sought leave to file either 

of those amended petitions, or that the court granted him permission to do 

so, as required by Pa.R.Crim.P. 905(A). See Commonwealth v. Porter, 35 

A.3d 4, 12 (Pa. 2012) (holding that Rule 905 does not permit "self - authorizing" petitions, allowing a petitioner to "simply 'amend' a pending 

petition with a supplemental pleading;" instead, "the Rule explicitly states 

that amendment is permitted only by direction or leave of the PCRA court "). 

Moreover, it does not appear that the PCRA court considered the assertions 

presented in those amended petitions. See PCO at 5 (only discussing 

Appellant's failure to plead and prove the applicability of a timeliness 

exception in his initial petition filed in August of 2012). We ascertain no 

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error in the court's decision not to examine Appellant's amended petitions, 

which he did not seek leave of court to file.2 

In sum, the record supports the PCRA court's determination that 

Appellant failed to plead and prove the applicability of a timeliness 

exception. Thus, the court was without jurisdiction to address the merits of 

his after -discovered evidence and Brady claims. 

Order affirmed. 

2 In any event, we note that in Appellant's November 2012 petition, he again 

made no attempt to argue that Bernie's statement met a timeliness 

exception; instead, he only reiterated his assertion that he was entitled to 

PCRA relief under section 9543(a)(2)(vi), and added a boilerplate claim that 

the Commonwealth committed a Brady violation that entitled him to relief 

under section 9543(a)(2)(i). Thus, even if Appellant had been granted leave 

to file that November 2012 amendment, he would not have met his burden 

of pleading and proving the applicability of a timeliness exception. 

The same is true for Appellant's amended petition filed in August of 

2013. There, he provided a one -sentence, boilerplate reference to the 

governmental interference exception of section 9545(b)(1)(i), but he did not 

meaningfully develop that argument. See PCRA Petition, 8/8/13, at 9 

( "Petitioner further alleges that he is entitled to relief due to governmental 

interference for Brady violations. "). Additionally, at no point in Appellant's 

August 2013 petition did he explain why he could not have specifically 

discussed his discovery of Bernie's statement - and plead the applicability of 

a timeliness exception - in his August 2012 petition. Thus, even if the PCRA 

court had granted Appellant leave to file his August 2013 amended petition, 

we would conclude that his attempt to raise a boilerplate governmental - interference claim for the first time therein was well outside the 60 -day 

requirement of section 9545(b)(2). 

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Judgment Entered. 

J seph D. Seletyn, 

Prothonotary 

Date: 11/8/2016 

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