J-S09043-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KEITA BRISBON,

Appellant No. 1387 EDA 2016

Appeal from the PCRA Order April 15, 2016

in the Court of Common Pleas of Chester County

Criminal Division at Nos.: CP-15-CR-0000017-1997

CP-15-CR-0003141-2001

BEFORE: SHOGAN, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED MARCH 29, 2017

Appellant, Keita Brisbon, appeals pro se from the denial of his second 

petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 

9541-9546, as untimely. We affirm.

The PCRA court aptly provided the following pertinent procedural and 

factual history in its July 12, 2016 opinion:

On November 10, 1996, in Coatesville, Pennsylvania, 

Ironne Cannon was shot in the street and critically injured. On 

May 18, 1998, Appellant pled guilty to attempted homicide and 

conspiracy in the shooting of Mr. Cannon. During his guilty plea 

hearing, Appellant admitted to being present, and involved, 

when Joseph Taylor shot Mr. Cannon as an act of revenge for an 

earlier beating. On April 16, 2001, Mr. Cannon died from his 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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injuries. Appellant was subsequently charged with murder, 

convicted, and sentenced to life in prison on November 20, 

2003. On May 12, 2005, the Pennsylvania Superior Court 

affirmed Appellant’s judgment of sentence for first degree 

murder. (See Commonwealth v. Brisbon, 880 A.2d 3 (Pa. 

Super. 2005)). On October 13, 2005, the Pennsylvania Supreme 

Court denied Appellant’s petition for allowance of appeal. (See 

Commonwealth v. Brisbon, 887 A.2d 231 (Pa. 2005)). On 

February 27, 2006, the United States Supreme Court denied his 

petition for writ of certiorari. (See Brisbon v. Pennsylvania, 

546 U.S. 1219 (2006)).

On February 17, 2006, Appellant filed his first petition 

under the [PCRA]. One claim Appellant raised was that his 

counsel was ineffective for failing to obtain results from a 

gunshot residue test performed on his hands shortly after the 

shooting. [The PCRA court] found this claim without merit in 

that Appellant had been found guilty of being either the principal 

or an accomplice in the murder of Mr. Cannon, and whether or 

not he actually fired a shot on the night of November 10, 1996 

was immaterial to his finding of guilt. Accordingly, [the PCRA 

court] dismissed his petition on July 25, 2006. The Superior 

Court affirmed that order on October 15, 2007. (See 

Commonwealth v. Brisbon, 943 A.2d 309 (Pa. Super. 2007)).

On September 3, 2015, Appellant filed the instant petition. 

[The PCRA court] reviewed the petition, found that it was 

untimely, and on February 18, 2016, provided to Appellant the 

mandatory twenty-day notice of [its] intent to dismiss his 

petition. See Pa.R.Crim.P. 907(1). [Appellant responded pro se

on March 25, 2016.] On April 15, 2016, [the court] dismissed 

his second PCRA petition. [Appellant timely appealed.1]

(PCRA Court Opinion, 7/12/16, at 1-2) (citations provided).

Appellant raises three questions for our review:

____________________________________________

1

Pursuant to the court’s order, Appellant filed a statement of errors 

complained of on appeal on May 19, 2016. The PCRA court filed an opinion

on July 12, 2016. See Pa.R.A.P. 1925.
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I. Whether the withholding of exculpatory Atomic Absorption 

test kit results caused a violation of Brady[

2

] Rule?

II. Whether the availability now of exculpatory evidence that 

was thought not to exist constitutes newly discovered evidence 

meets [sic] 42 Pa.C.S.A. § 9545(b)(1)(i-iii), (2)?

III. Whether [the] prosecutor knowingly committed 

government interference by concealing the findings of the atomic 

absorption test kit result no. H9707609-C from []Appellant prior 

to and after a specific request was made for this evidence meets 

[sic] 42 Pa.C.S.A. § 9543(a)(2)?

(Appellant’s Brief, at 4) (unnecessary capitalization omitted).

Before we are able to consider the merits of Appellant’s claims on 

appeal, we must determine whether the PCRA court properly determined 

that his petition was untimely, and that, therefore, it did not have 

jurisdiction to decide its merits. (See Order, 4/15/16; PCRA Ct. Op., at 1).

We review an order dismissing a petition under the PCRA 

in the light most favorable to the prevailing party at the PCRA 

level. This review is limited to the findings of the PCRA court 

and the evidence of record. We will not disturb a PCRA court’s 

ruling if it is supported by evidence of record and is free of legal 

error. This Court may affirm a PCRA court’s decision on any 

grounds if the record supports it. We grant great deference to 

the factual findings of the PCRA court and will not disturb those 

findings unless they have no support in the record. However, we 

afford no such deference to its legal conclusions. Further, where 

the petitioner raises questions of law, our standard of review is 

de novo and our scope of review is plenary.

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2013), appeal 

denied, 64 A.3d 631 (Pa. 2013) (citations omitted).

____________________________________________

2 Brady v. Maryland, 373 U.S. 83 (1963).
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Here, the PCRA court found that Appellant’s second PCRA petition was 

untimely and that he failed to plead and prove any exception to the PCRA 

time-bar. (See PCRA Ct. Op., at 3-4). We agree.

It is well-settled that:

A PCRA petition, including a second or subsequent one, must be 

filed within one year of the date the petitioner’s judgment of 

sentence became final, unless he pleads and proves one of the 

three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A 

judgment becomes final at the conclusion of direct review by this 

Court or the United States Supreme Court, or at the expiration 

of the time for seeking such review. 42 Pa.C.S.[A.] § 

9545(b)(3). The PCRA’s timeliness requirements are 

jurisdictional; therefore, a court may not address the merits of 

the issues raised if the petition was not timely filed. The 

timeliness requirements apply to all PCRA petitions, regardless of 

the nature of the individual claims raised therein. The PCRA 

squarely places upon the petitioner the burden of proving an 

untimely petition fits within one of the three exceptions. . . .

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations 

and footnote omitted).

In the case sub judice, Appellant’s judgment of sentence became final 

on February 27, 2006, when the United States Supreme Court denied his 

petition for writ of certiorari. See 42 Pa.C.S.A. § 9545(b)(3); see also 

Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa. 1999). Therefore, he 

had one year from that date to file a petition for collateral relief unless he 

pleaded and proved that a timing exception applied. See 42 Pa.C.S.A. § 

9545(b)(1)(i)-(iii). Hence, Appellant’s current petition, filed on September 

3, 2015, is untimely on its face unless he pleads and proves one of the 

statutory exceptions to the time-bar.
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Section 9545 of the PCRA provides only three exceptions that allow for 

review of an untimely PCRA petition: (1) the petitioner’s inability to raise a 

claim because of governmental interference; (2) the discovery of previously 

unknown facts that would have supported a claim; and (3) a newlyrecognized constitutional right. See id. When a petition is filed outside the 

one-year time limit, petitioners must plead and prove the applicability of one 

of the three exceptions to the PCRA timing requirements. See 

Commonwealth v. Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012) (“If 

the petition is determined to be untimely, and no exception has been pled 

and proven, the petition must be dismissed without a hearing because 

Pennsylvania courts are without jurisdiction to consider the merits of the 

petition.”) (citation omitted). Also, a PCRA petition invoking one of these 

statutory exceptions must “be filed within [sixty] days of the date the claim 

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

Here, Appellant attempts to argue the applicability of the afterdiscovered facts and governmental interference exceptions to the PCRA’s 

time-bar on the basis of the Commonwealth’s alleged Brady violation. See 

id. at § 9545(b)(1)(i), (ii). Specifically, Appellant argues that the 

Commonwealth denied the existence of any gunpowder residue test results 

on the basis that it elected not to pursue testing, but that he later 

discovered they did exist when he obtained them directly from the 

laboratory. (See Appellant’s Brief, at 8-11). 
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As a preliminary matter, we note that the issue regarding the 

exculpatory nature of the gunshot residue test results was previously 

litigated.

Section 3544 of the PCRA provides, in pertinent part, that:

[A]n issue has been previously litigated if . . . the highest 

appellate court in which the petitioner could have had review as 

a matter of right has ruled on the merits of the issue; or it has 

been raised and decided in a proceeding collaterally attacking 

the conviction or sentence.

42 Pa.C.S.A. § 9544(a)(2), (3). Further, “it is well-settled that a PCRA 

petitioner cannot obtain additional review of previously litigated claims by 

presenting new theories of relief . . . .” Commonwealth v. Sneed, 45 A.3d 

1096, 1112 (Pa. 2012) (citation omitted).

In addressing Appellant’s first PCRA petition, a panel of this Court 

observed:

In his third issue, Appellant argues the Commonwealth 

withheld exculpatory evidence of gunshot residue test results, 

which would have proven Appellant did not fire the weapon used 

to kill the victim. Appellant contends the Commonwealth’s 

suppression of this evidence violated Brady, supra, which 

prohibits the withholding of evidence favorable to the accused, 

regardless of whether bad faith was involved in the 

Commonwealth’s decision not to use the evidence. Appellant 

claims the Commonwealth’s decision not to procure the test 

results after Appellant pleaded guilty to attempted murder 

compromised Appellant’s ability to present an effective defense 

at the homicide trial. Appellant concludes the prosecution 

violated his due process right to a fair trial by suppressing 

exculpatory evidence.

Instantly, . . . Appellant was convicted of being either the 

principal or an accomplice in the victim’s murder. Thus, the 

gunshot residue test results would not necessarily have 
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exculpated Appellant of the charges against him, even if the 

results were to show Appellant was not the shooter.

(Commonwealth v. Brisbon, No. 2187 EDA 2006, unpublished 

memorandum, at **14-15 (Pa. Super. filed Oct. 15, 2007) (one case citation 

omitted)).

We recognize that Appellant’s claim in his first PCRA petition was 

slightly different than the one raised herein. In his first petition, he 

maintained that the Commonwealth’s Brady violation was its decision not to 

perform gunshot residue testing. (See id.). Here, Appellant argues that the 

Commonwealth committed a Brady violation when it misrepresented that 

test results did not exist, when, in fact, they did. (See Appellant’s Brief, at 

4, 8-11). However, regardless of whether the results did or did not exist, 

the issue of whether they could be exculpatory has been previously litigated, 

and Appellant cannot argue that issue again under the guise of new legal 

theories. See Sneed, supra at 1112. 

Moreover, even if we did not consider Appellant’s issue previously 

litigated, we have undertaken our own review and conclude that he fails to 

establish either the governmental interference or after-discovered fact 

exception to the timeliness requirements. (See Appellant’s Brief, at 8-11).

It is well-settled that a Brady violation can fall within the 

governmental interference exception. Commonwealth v. 

Breakiron, 566 Pa. 323, 330-31, 781 A.2d 94, 98 (2001). 

However, . . . Appellant . . . must plead and prove that the 

information could not have been discovered earlier with the 

exercise of due diligence. Id. Further, in order to prevail under 

the newly discovered evidence exception, Appellant must plead 
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and prove that the facts upon which the claim is predicated were 

unknown to him and could not have been ascertained earlier by 

the exercise of due diligence. Commonwealth v. Bronshtein,

561 Pa. 611, 752 A.2d 868 (2000). In addition Appellant must 

show that these new facts constitute “exculpatory evidence” that 

“would have changed the outcome of the trial if it had been 

introduced.” [] Yarris, [supra at 591].

Commonwealth v. Sattazahn, 869 A.2d 529, 535 (Pa. Super. 2005).

In this case, we recognize that the trial court’s December 20, 2005 

order denied Appellant’s request for the production of the laboratory results 

under the mistaken belief that they did not exist, where the Commonwealth 

did not request that they be performed. (See Order, 12/20/05). However, 

Appellant fails to establish that he acted with due diligence to obtain the 

results, which he failed to request until approximately ten years after the 

court’s order, and over fifteen years after the laboratory report actually was 

prepared. (See Appellant’s Brief, at 8-11; Pennsylvania State Police Bureau 

of Forensic and Criminal Identification Lab Report H9707609-C, 3/16/98). 

Therefore, because Appellant has not established that he acted with due 

diligence, he has failed to plead and prove the applicability of the 

governmental interference exception. See Sattazahn, supra at 535.

We also conclude that the laboratory results do not fall under the 

newly discovered facts exception because they are not exculpatory or 

material. As the PCRA court explained:

Appellant was found guilty as either the principal or an 

accomplice in Mr. Cannon’s murder. A principal and his 

accomplice share equal responsibility for their criminal acts. See 

Commonwealth v. Cox, 686 A.2d 1279, 1286 (Pa. 1996)[, 
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cert. denied, 522 U.S. 999 (1997)]. Accordingly, whether 

Appellant actually fired the shots that ultimately killed Mr. 

Cannon, and/or whether or not gunshot residue was found on his 

hands was immaterial to Appellant’s guilt in this case. 

[Therefore,] . . . the evidence offered would not be considered 

“exculpatory evidence” that “would have changed the outcome 

of the trial[.]” 42 Pa.C.S.A. § 9543(a)(2)(vi)[.] . . .

(PCRA Ct. Op., at 3-4) (case citation formatting provided).

We agree with the PCRA court. In fact, the laboratory report obtained 

by Appellant stated: “The above results do not indicate [Appellant] had or 

had not recently discharged a firearm; they simply indicate the barium and 

antimony present on [his] hands . . . at the time when the swabbings were 

taken was of no significance.” (Pennsylvania State Police Bureau of 

Forensics and Criminal Identification Lab Report H9707609-C, 3/16/98). 

Therefore, not only are the results immaterial to the crime charged, they are 

not exculpatory and do not make it likely that the jury would have reached a 

different result if they had been available at the time of trial. See 

Sattazahn, supra at 535. Accordingly, the trial court did not abuse its 

discretion when it found that Appellant failed to plead and prove the 

applicability of the after-discovered facts exception to the PCRA time-bar. 

See id.

For all of the foregoing reasons, where the laboratory test results were 

neither exculpatory nor material, and Appellant failed to exercise due 

diligence in obtaining them, we conclude that he has failed to plead and 

prove the applicability of a timeliness exception. See Sattazahn, supra at 
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535. The PCRA court properly dismissed his petition. See Rykard, supra

at 1183.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/29/2017