J-S09010-18

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF 

PENNSYLVANIA,

 Appellee

v.

MOHAMMAD SOHAIL SALEEM, 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1097 MDA 2017

Appeal from the PCRA Order June 16, 2017

in the Court of Common Pleas of Lebanon County 

Criminal Division at Nos.: CP-38-CR-0000565-2014 

CP-38-CR-0001112-2014

BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.: FILED MAY 01, 2018

Appellant, Mohammad Sohail Saleem, appeals pro se from the denial of 

his second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 

Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

We take our factual and procedural history from our review of the 

certified record, and this Court’s March 28, 2017 memorandum affirming the 

denial of Appellant’s first PCRA petition. 

On April 21, 2015, Appellant pleaded “guilty to indecent assault and the 

summary offense of harassment involving two victims. The victims were 

employees of a small business owned by [Appellant].” (Commonwealth v. 

Saleem, No. 645 MDA 2016, unpublished memorandum at *1 (Pa. Super. 

filed Mar. 28, 2017) (footnote omitted)). After his guilty plea, the court 

ordered an assessment to determine whether Appellant is a sexually violent 
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predator. Appellant was found to be a sexually violent predator. On June 3, 

2015, following a discussion regarding possible deportation proceedings, the 

trial court sentenced Appellant to not less than twenty-one months nor more 

than ten years of incarceration. (See id.). Appellant filed post sentence 

motions on July 31, 2015, claiming ineffective assistance of counsel and 

seeking to withdraw his guilty plea.

1

 The trial court denied his motions on 

August 4, 2015, without prejudice to Appellant seeking relief under the PCRA. 

Appellant did not file a direct appeal from his sentence.

On September 3, 2015, Appellant filed a counseled first PCRA petition. 

On March 24, 2016, the PCRA court conducted an evidentiary hearing, after 

which it concluded that trial counsel was not ineffective, and that Appellant’s 

plea was voluntarily entered, and therefore denied Appellant’s first PCRA 

petition. (See N.T. PCRA Hearing, 3/24/16, at 43-44). Appellant filed a pro 

se notice of appeal. After a Grazier2 hearing, the court permitted Appellant 

to appeal pro se, and provided stand-by counsel. On March 28, 2017, this 

Court affirmed the PCRA court’s denial of Appellant’s first petition. (See 

Saleem, supra at *7-9). 

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1 Because Appellant’s post sentence motions were not timely filed, he filed 

them together with a request to file nunc pro tunc, which the court denied. 

(See Order, 8/04/15).

2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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On April 6, 2017, Appellant, pro se, filed the instant, second PCRA 

petition. He filed an amended petition on May 18, 2017. On May 25, 2017, 

the PCRA court issued notice of its intent to deny the petition as untimely. 

(See Order, 5/25/17, at 6); Pa.R.Crim.P. 907(1). Appellant responded, and 

on June 16, 2017, the court issued an order denying the petition as untimely. 

This timely appeal followed.3

Appellant raises one question for our review:

I. Whether PCRA court erred by dismissing PCRA petition when 

the Appellant proved that governmental interference 

prevented him from asserting his innocence due to the 

Commonwealth[’s] failure to provide or turn over video 

evidence that could prove Appellant’s innocence?

(Appellant’s Brief, at 5) (most capitalization omitted). 

Our standard of review of an order denying PCRA relief is 

whether the record supports the PCRA court’s determination, and 

whether the PCRA court’s determination is free of legal error. The 

PCRA court’s findings will not be disturbed unless there is no 

support for the findings in the certified record.

Commonwealth v. Brown, 143 A.3d 418, 420 (Pa. Super. 2016) (citations 

omitted).

We begin by addressing the timeliness of Appellant’s petition.

The PCRA provides eligibility for relief in conjunction with 

cognizable claims . . . and requires petitioners to comply with the 

timeliness restrictions. . . . [A] PCRA petition, including a second 

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

that judgment becomes final. A judgment becomes final for 

purposes of the PCRA at the conclusion of direct review, including 

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3 Pursuant to the PCRA court’s order, Appellant filed his statement of errors 

complained of on appeal on August 7, 2017. On September 19, 2017, the 

court entered its opinion. See Pa.R.A.P. 1925.
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discretionary review in the Supreme Court of the United States 

and the Supreme Court of Pennsylvania, or at the expiration of 

time for seeking the review.

It is well-settled that the PCRA’s time restrictions are 

jurisdictional in nature. As such, this statutory time-bar implicates 

the court’s very power to adjudicate a controversy and prohibits 

a court from extending filing periods except as the statute 

permits. Accordingly, the period for filing a PCRA petition is not 

subject to the doctrine of equitable tolling; instead, the time for 

filing a PCRA petition can be extended only by operation of one of 

the statutorily enumerated exceptions to the PCRA time-bar.

The exceptions to the PCRA time-bar are found in Section 

9545(b)(1)(i)-(iii) (relating to governmental interference, newly 

discovered facts, and newly recognized constitutional rights), and 

it is the petitioner’s burden to allege and prove that one of the 

timeliness exceptions applies. Whether a petitioner has carried 

his burden is a threshold inquiry that must be resolved prior to 

considering the merits of any claim. . . .

Commonwealth v. Robinson, 139 A.3d 178, 185-86 (Pa. 2016) (quotation 

marks and citations omitted).

Here, Appellant’s judgment of sentence became final on September 3, 

2015, after he declined to file a direct appeal with this Court following denial 

of his post-sentence motions. See Pa.R.A.P 903(a). Therefore, he had until 

September 3, 2016, to file a timely PCRA petition. See 42 Pa.C.S.A. §

9545(b)(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[.]”). Because he filed the instant petition on April 6, 2017, it is 

untimely on its face, and the PCRA court lacked jurisdiction to review it unless 

he pleaded and proved one of the statutory exceptions to the time-bar. See

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
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Section 9545 of the PCRA provides only three limited exceptions that

allow for review of an untimely PCRA petition:

(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.

Id.

Any petition invoking an exception must “be filed within [sixty] days of 

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

“If the [PCRA] 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.” Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa. Super. 

2011), appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted).

Here, Appellant claims that the governmental interference exception 

applies. (See Appellant’s Brief, at 8-10). He asserts that the Lebanon City 

Police Department possessed an exculpatory video, which the Commonwealth 

was required, under Brady4, to turn over, but failed to do so. (See id.). He 

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4 Brady v. Maryland, 373 U.S. 83 (1963).
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argues that his failure to raise the claim previously was the result of the 

Commonwealth not turning over this video, and therefore the governmental 

interference exception applies. (See id.). We disagree.

“Although a properly plead Brady claim may fall within the 

governmental interference exception, Commonwealth v. Beasley, 559 Pa. 

604, 741 A.2d 1258, 1261 (1999), a petition invoking the exception must be 

filed within [sixty] days of the date the claim could have been filed pursuant 

to section 9545(b)(2).” Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 

2001) (one citation omitted). In Breakiron, our Supreme Court concluded 

that where the appellant “fail[ed] to offer a reasonable explanation as to why 

this information, with the exercise of due diligence, could not have been 

obtained earlier[,]” he failed to meet the requirements for the exemption to 

the PCRA time-bar. Id. (footnote omitted).

Here, Appellant has not attempted to explain why, with the exercise of 

due diligence, he could not have earlier learned of the Commonwealth’s 

alleged violation of its obligation to disclose the surveillance video. (See 

Appellant’s Brief, at 8-10). As the PCRA court noted, it appears that Appellant 

has been aware of the existence of the surveillance video since at least 

September 30, 2016, when he filed his first request for the video.5 (See PCRA 

Ct. Op., at 5-7). The instant petition, filed on April 6, 2017, was well beyond 

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5 The PCRA court also notes that, as the owner of the business where the 

sexual assaults occurred and where the surveillance video was recorded, 

Appellant would have known about the existence of a video surveillance 

system, since well before his trial. (See PCRA Ct. Op., at 7).
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the sixty-day time period after September 30, 2016, within which Appellant 

must have filed his petition invoking the exception for it to apply. See 42 

Pa.C.S.A. § 9545(b)(2). Thus the exception does not apply and the PCRA 

court did not have jurisdiction to consider Appellant’s claim. See Jackson, 

supra at 519.

In sum, we conclude Appellant has not met his burden of proving that 

his untimely PCRA petition fits within one of the three exceptions to the PCRA’s 

time-bar. See Robinson, supra at 185-86. Accordingly, we affirm the order 

of the PCRA court.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 05/01/2018