### J-S59003-16
NON

### -PRECEDENTIAL DECISION - SEE 

### SUPERIORCOURT 

### I.O.P. 

### 65.37 COMMONWEALTH OF PENNSYLVANIA,

1 IN THE SUPERIORCOURT OF PENNSYLVANIA

v. ANDRE ROMERO, Appellee



### Appellant No. 2143 EDA 2015 Appeal 

### fromthe PCRA Order Entered June4, 2015 In the Court ofCommon 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 underthe Post Conviction ReliefAct (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 summarizedthe ensuing procedural 

### historyofAppellant's case, as 

### follows: On February 2, 2007, 

### [] Appellant

... was found 

### guilty by this 

### [c]ourt, of one (1) count of 

### Involuntary Deviate Sexual

* FormerJusticespecially assigned to

### the SuperiorCourt.

### J-S59003-16
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 ofthe

### firstdegree; and 

### Corrupting the Morals of a Minor..., a 

### misdemeanorofthe

### first degree. On May 2, 2007, this 

### [c]ourt sentenced 

### [] Appellantto six to 

### twelve (6

### -12)years of incarceration 

### forthe 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 ofCriminal 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 wasfiled 

### forAppellanton 

### 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 Noticeon June4, 2015. On 

### that sameday, 

### 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 

### ofAppellant Procedure 

### 1925(b) to file a concise

... 

### statement of 

### errors complained of on appeal. 

### Appellantfiled 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 CourtOpinion (PCO), 

### 11/30/15, at 1-2 

### (footnotes 

### omitted). On appeal,

### Appellantpresents

### three questions

### forour review: 

## -2

### J-S59003-16

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 /policeofficer? 2. 

### Whetherthe PCRA

### [c]ourt erred infailing 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 

### statementwas 

### 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 

### timeofthe 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 officerwould 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

### /orwhetherthe 

### courterred 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 Briefat 3-4.

1 

### Bradyv.

### Maryland, 373 U.S. 83 

### (1963). 

## -3

### J-S59003-16

This 

### Court's standard of review regarding an 

### order denying a 

### petition underthe PCRA is 

### whetherthe 

### determination ofthe 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 orsubsequent one, 

### must befiled 

### within
one

### year ofthe date the

### judgmentof sentence becomes

### final, unless one of the 

### following exceptionsset

### forth in 42 Pa.C.S. § 

### 9545(b)(1)(i)-(iii) applies: 

### (b)Time

### forfiling petition.-- (1) Any 

### petition under this subchapter, including a second or subsequent 

### petition, shall befiled 

### within one

### year ofthe 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 

### ofthe United 

### States; (ii) thefacts upon which the claim is predicated were unknown to 

### the 

### petitioner and could not have been ascertained bythe exerciseofdue 

### 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

### thatcourtto 

### apply 

### retroactively.


## -4

### J-S59003-16

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

### judgmentofsentence becamefinal 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 becomesfinal atthe conclusion of

### direct review orthe 

### expiration of the 

### time forseeking 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,

### forthis Courtto have

### jurisdictionto reviewthe 

### merits thereof, Appellant must prove 

### that he meets one 

### of the exceptions to 

### the timeliness requirements set

### forth in42 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 

### statementfrom an 

### individual named 

### "Bernie." According to 

### Appellant, Bernie's 

### statement would have 

### supported


## -5

### J-S59003-16

a defense 

### that Bernie was the 

### perpetrator ofthe crimes 

### forwhich 

### Appellant
was convicted. Specifically,

### Appellantmaintains

### 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 

### thatday[, as did

### Appellant]; [he] was close in age to 

### [] Appellant on the date ofthe incident; and 

### [he] told police he sawthe 

### complainant at or near the 

### bathroom atthe

### time ofthe incident. 

### Appellant's Brief at 11. 

### Appellant avers 

### that the 

### Commonwealth's withholding Bernie's 

### statementviolated Bradyand 

### constitutesgovernmental interference under section 

### 9545(b)(1)(i) He also contends 

### that Bernie's 

### statement is 

### after-discovered evidence

### thatsatisfies 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, Appellantasserted atthe 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 

### ofthe 

### trial if it had been 

### introduced." 

### Id. at 3. However, section 

### 9543(a)(2)(vi)


## -6

### J-S59003-16
only applies to 

### timely-filed petitions 

### that assert 

### after-discovered evidence claims; "a

### facially 

### untimely PCRA 

### petitionerattempting 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 

### meetthis burden in his 

### initial petition filed on 

### August8, 2012. We acknowledge 

### that Appellant filed two amendments to his 

### August
8th 

### petition - one in November of2012, and one in

### August of2013. 

### Initially, nothing in the record 

### demonstrates

### thatAppellantsought leave tofile 

### either ofthose 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 

### ofthe 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



## -7

### J-S59003-16

error in the 

### court's decision not to examine 

### Appellant's amended 

### petitions, which he did not seekleave 

### ofcourt 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

### withoutjurisdiction to address the 

### merits of his 

### after-discovered evidenceand 

### Bradyclaims. Order

### affirmed.

2 In any

### event, we note 

### that in

### Appellant's November2012 

### petition, heagain 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 ofsection 

### 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 interferencefor 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 ifthe 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 ofsection

### 9545(b)(2).


## -8

### J-S59003-16

Judgment Entered.

J seph D. 

### Seletyn, Prothonotary

Date: 

### 11/8/2016



## -9