J-S39045-19

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CHRISTOPHER BRUNKEL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1597 EDA 2018

Appeal from the PCRA Order April 27, 2018

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

No(s): CP-51-CR-0003830-2013

BEFORE: GANTMAN, P.J.E., STABILE, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 21, 2019

Appellant, Christopher Brunkel, appeals from the order entered in the 

Court of Common Pleas of Philadelphia County dismissing his first petition filed 

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, as 

untimely. Appellant contends dismissal was erroneous where he presented 

ample proof that he exercised due diligence in seeking nunc pro tunc PCRA 

relief upon learning plea counsel had not filed a requested direct appeal. We 

affirm.

The PCRA court aptly sets forth the pertinent procedural history, as 

follows: 

On June 5, 2013, Appellant pled guilty before this Court, to the 

charges of Aggravated Assault, Robbery, Burglary, Conspiracy to 

Commit Burglary, and Possession of an Instrument of Crime [filed 

in connection with his forcible entry into the home of a 94 yearold woman, whom he repeatedly punched, threatened with a 

needle, and bound with duct tape before taking her jewelry]. 
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Pursuant to the negotiated plea Appellant was sentenced to 

thirteen to twenty-six years of incarceration.

On July 26, 2013, Appellant’s [plea] counsel filed a Motion for 

Reconsideration of Sentence. On November 12, 2013, the Motion 

for Reconsideration was denied by operation of law.

On August 1, 2015, Appellant sent to the Philadelphia District 

Attorney’s Post-Conviction Relief Act Unit an “Amended Petition 

for Post Conviction Collateral Relief.” Commonwealth’s Motion to 

Dismiss at Exhibit A. On August 21, 2015, Appellant filed pro se

a Motion for the Appointment of Counsel. On October 26, 2015, 

Appellant filed pro se a Nunc Pro Tunc Notice of Appeal along with 

a Continuation of Informa Pauperis Status for Purposes of Appeal 

Nunc Pro Tunc. 

On May 26, 2016, Appellant filed pro se an Application for PostConviction Collateral Relief. On December 1, 2016, Appellant’s 

attorney filed an Amended PCRA petition. 

On March 24, 2017, the PCRA court held an evidentiary hearing 

as [to] whether Appellant’s rights should be reinstated nunc pro 

tunc. On March 23, 2018, the PCRA court issued a Letter of Intent 

to Dismiss . . . because Appellant’s petition was untimely filed and 

did not invoke an exception to the timeliness provision of the 

PCRA. On April 27, 2018, the PCRA court formally dismissed 

Appellant’s PCRA petition.

On May 25, 2018, Appellant filed a Notice of Appeal of the PCRA 

court’s April 27, 2018 Order. On June 18, 2018, Appellant was 

ordered to submit a Statement of Matters Complained [of] on 

Appeal, in accordance with [Pa.R.A.P.] 1925(b), within twentyone days. Appellant filed [his] Statement July 9, 2018.

PCRA Court Opinion, filed 8/29/18, at 2-3.

Appellant raises one issue for our consideration:

Did the [PCRA] court err when it dismissed Brunkel’s [PCRA] 

petition as untimely or non-meritorious where 1) Brunkel was 

abandoned by his prior counsel, who did not file a requested direct 

appeal; 2) Brunkel was incarcerated, without access to public 

records, and because he trusted his prior counsel to handle the 

appeal, he cannot be considered not to have been “duly diligent” 
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in ascertaining the status of his appeal when, after not hearing 

from his own attorney for months, he decided to investigate 

himself as to its status and write to the Clerk of Courts directly; 

3) upon learning that his counsel had not filed a requested direct 

appeal, Brunkel acted within days and filed a PCRA seeking the 

reinstatement of his rights to an appeal?

Appellant’s brief, at 4.

In PCRA appeals, our scope of review “is limited to the findings of the 

PCRA court and the evidence on the record of the PCRA court's hearing, viewed 

in the light most favorable to the prevailing party.” Commonwealth v. Sam,

952 A.2d 565, 573 (Pa. 2008) (internal quotation omitted). Because most 

PCRA appeals involve questions of fact and law, we employ a mixed standard 

of review. Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009). We defer 

to the PCRA court's factual findings and credibility determinations supported 

by the record. Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) 

(en banc). In contrast, we review the PCRA court's legal conclusions de novo.

Id.

There is no dispute that Appellant’s PCRA petition is facially untimely 

under 42 Pa.C.S. § 9545(b)(1). Therefore, for our courts to have jurisdiction 

over his petition, Appellant must plead and prove a timeliness exception under 

Section 9545(b)(1)(i-iii).1 In this vein, he attempts to invoke the newly-

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1 Any PCRA petition, including second and subsequent petitions, must either 

(1) be filed within one year of the judgment of sentence becoming final, or (2) 

plead and prove a timeliness exception. 42 Pa.C.S. § 9545(b). To invoke an 

exception, a petition must allege and the petitioner must prove:
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discovered facts exception to the PCRA’s time-bar by claiming plea counsel 

abandoned him after the denial of his post-sentence motion, he was not aware 

that counsel failed to file a requested direct appeal, and he filed a PCRA 

petition within 60 days of learning, through the exercise of due diligence, that 

his counsel failed to file the direct appeal. See Commonwealth v. Bennett, 

930 A.2d 1264 (Pa. 2007) (holding petitioner entitled to invoke newlydiscovered facts exception to PCRA time-bar where he files PCRA petition 

within 60 days of learning former counsel abandoned direct appeal). 

The PCRA court, however, presided over an evidentiary hearing and 

made a finding of fact that plea counsel credibly testified she notified Appellant 

immediately about the denial of his post-sentence motion and received no 

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(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. § 9545(b)(1)(i)-(iii). The petitioner bears the burden of pleading 

and proving the applicability of any exception. 42 Pa.C.S. § 9545(b)(1).

Further, under the present facts, Appellant needed to have filed his petition 

“within 60 days of the date the claim could have been presented.” 42 Pa.C.S. 

§ 9545(b)(2). But see 2018 Pa.Legis.Serv.Act 2018-146 (S.B. 915), effective 

December 24, 2018 (amending subsection 9545(b)(2) to extend time for filing 

petition from 60 days to one year from date claim could have been presented). 
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request from Appellant to file a direct appeal. See N.T. 3/24/17, at 46-47; 

PCRA Court Opinion, at 5-6. The court, furthermore, determined Appellant 

failed to exercise due diligence in waiting nearly two years to ascertain the 

status of his appeal despite receiving such notice from counsel. Id., at 6. The 

record supports the court’s determinations in this regard.

Thus, we conclude Appellant filed his PCRA petition belatedly and failed 

to plead and prove a PCRA time-bar exception with the PCRA court. 

Accordingly, we affirm the order dismissing Appellant’s PCRA petition.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/21/2019