J-S42022-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BRIAN KING, 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1772 EDA 2019

Appeal from the PCRA Order Entered May 24, 2019

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

No(s): CP-51-CR-0111401-2006, 

CP-51-CR-0111411-2006

COMMONWEALTH OF PENNSYLVANIA

v.

BRIAN KING, 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1773 EDA 2019

Appeal from the PCRA Order Entered May 24, 2019

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

No(s): CP-51-CR-0111401-2006, 

CP-51-CR-0111411-2006

BEFORE: PANELLA, P.J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.: Filed: October 8, 2020

Appellant, Brian King, appeals pro se from the order entered on May 24, 

2019, which dismissed his second petition filed under the Post Conviction 

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

We previously summarized the underlying facts of this case:
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On October 31, 2005, Appellant was driving his car and met 

up with his . . . coconspirator, Tyreek Wilford. After Wilford 

got into Appellant’s car, Appellant told him that they were 

going to Norristown to rob somebody. When the intended 

victim was not where he was supposed to be, they drove back 

to Philadelphia. . . .

When they got to the area of Comly and Malta Streets, they 

saw three young men and two young women on the street. 

Appellant told Wilford that he wanted to rob [the people]. He 

drove around the corner. Appellant pulled out a loaded 

[TEC-9 pistol] and put it on his lap. They got out of the car 

and Appellant left the car running. Appellant gave Wilford 

the gun and Wilford hid the gun in his waist. Appellant 

approached the group and had a brief conversation with 

them. The people began to walk away. Appellant 

announced, “Hold up!” Wilford pulled the gun; Appellant told 

everyone to lie on the grass. Appellant then went through 

each person’s pockets. Wilford saw Appellant take cell 

phones and clothing from the victims. They ran back to the 

car. As they were about to get into the car, Appellant 

demanded the gun back. As Wilford was getting into the car, 

Appellant ran to another car on the block and attempted to 

take money from the driver of that car, Steven Badie. During

the course of that robbery, Appellant fired a series of shots 

into the car, striking Badie a number of times, killing him. . 

. .

Appellant ran back to the car and [he and Wilford] drove 

away. As the initial robbery victims had called the police, 

their car was stopped a few minutes later. [Appellant and 

Wilford] were arrested after being identified by the surviving 

robbery victims. The gun was recovered from the back seat 

of the car, as well as cell phones and clothing. The phones 

and clothing were identified by the victims as those taken 

during the robbery.

When arrested, both Appellant and Wilford gave statements 

admitting to the initial robberies. Each, however, claimed 

that the other robbed and shot Badie and denied knowing 

that the other intended to do so. At time of Appellant’s trial, 

Wilford had already entered into a plea agreement with the

Commonwealth in which he pleaded guilty to third degree

murder [and other charges]. He then testified against 
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Appellant. No agreement was made with Wilford concerning 

the length of his prison sentence. At the time of Appellant’s 

trial, Wilford had yet to be sentenced.

At trial, Appellant’s theory was to concede his participation in 

the robbery of the five individuals. He then claimed that

Wilford robbed and shot Badie without Appellant’s knowledge 

or consent.

. . .

On July 12, 2007, a jury convicted Appellant of one count of 

second degree murder, six counts of robbery, and one count 

each of conspiracy and possession of an instrument of

crime[.] On May 18, 2007, the trial court sentenced 

Appellant to serve a mandatory term of life imprisonment for 

the second-degree murder conviction.

. . .

On direct appeal, [the Superior Court] affirmed Appellant’s 

judgment of sentence . . . and the Pennsylvania Supreme 

Court denied Appellant’s petition for allowance of appeal on 

July 7, 2010. Commonwealth v. King, [984 A.2d 1016 (Pa. 

Super. 2009) (unpublished memorandum), appeal denied, 

997 A.2d 1175 (Pa. 2010)].

Commonwealth v. King, 159 A.3d 50 (Pa. Super. 2016) (unpublished 

memorandum) at 2-3 (quotations and footnotes omitted), quoting PCRA Court 

Opinion, 2/29/16, at 1-3.

On July 30, 2010, Appellant filed his first PCRA petition. The PCRA court 

dismissed this petition on August 22, 2014, we affirmed the PCRA court’s order 

on October 21, 2016, and the Pennsylvania Supreme Court denied Appellant’s 

petition for allowance of appeal on June 27, 2017. Commonwealth v. King, 

159 A.3d 50 (Pa. Super. 2016) (unpublished memorandum) at 1-21, appeal 

denied, 169 A.3d 596 (Pa. 2017).
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On April 27, 2018, Appellant filed the current PCRA petition; the petition 

constitutes Appellant’s second petition seeking post-conviction collateral 

relief. Within the petition, Appellant claimed that his counsel on direct appeal

– former attorney J. Michael Farrell (hereinafter “Attorney Farrell”) – was 

ineffective because Attorney Farrell was “pre-occupied with extra-curricular 

criminal activities.”1 Appellant’s Second PCRA Petition, 4/27/18, at 4. 

Specifically, Appellant claimed:

On March 20, 2018, through a family member who [had] 

gotten the information off the internet and mailed to me, 

information about my court appointed attorney[, Attorney 

Farrell,] being convicted of a crime that [sic] activities goes

[sic] back to the time he was representing me. . . . [Attorney 

Farrell’s] divided loyalties made his performance deficient 

and per se ineffective when he filed frivolous appeals [on] my 

behalf.

Id. at 3-4. 

On March 25, 2019, the PCRA court notified Appellant that it intended 

to dismiss the untimely petition in 20 days, without holding a hearing. PCRA 

Court Order, 3/25/19, at 1; see also Pa.R.Crim.P. 907(1). Appellant did not 

respond to the Rule 907 notice and, on May 24, 2019, the PCRA court finally 

dismissed Appellant’s petition. See PCRA Court Order, 5/24/19, at 1. 

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1 On December 4, 2019, the Pennsylvania Supreme Court entered an order 

declaring that Attorney Farrell was disbarred on consent, retroactive to March 

10, 2017. Office of Disciplinary Counsel v. Farrell, 2362 Disciplinary 

Docket No. 3 (Pa. 2019). 
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Appellant filed a timely notice of appeal. We now affirm the dismissal 

of Appellant’s patently untimely, serial PCRA petition.

We “review an order granting or denying PCRA relief to determine 

whether the PCRA court’s decision is supported by evidence of record and 

whether its decision is free from legal error.” Commonwealth v. Liebel, 825 

A.2d 630, 632 (Pa. 2003). 

The PCRA contains a jurisdictional time-bar, which is subject to limited 

statutory exceptions. This time-bar demands that “any PCRA petition, 

including a second or subsequent petition, [] be filed within one year of the 

date that the petitioner’s judgment of sentence becomes final, unless [the] 

petitioner pleads [and] proves that one of the [three] exceptions to the 

timeliness requirement . . . is applicable.” Commonwealth v. McKeever, 

947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b). Further, since 

the time-bar implicates the subject matter jurisdiction of our courts, we are 

required to first determine the timeliness of a petition before we consider the 

underlying claims. Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa. 1999). 

Our Supreme Court has explained:

the PCRA timeliness requirements are jurisdictional in nature 

and, accordingly, a PCRA court is precluded from considering 

untimely PCRA petitions. See, e.g., Commonwealth v. 

Murray, 753 A.2d 201, 203 (Pa. 2000) (stating that “given 

the fact that the PCRA's timeliness requirements are 

mandatory and jurisdictional in nature, no court may properly 

disregard or alter them in order to reach the merits of the 

claims raised in a PCRA petition that is filed in an untimely 

manner”); Commonwealth v. Fahy, 737 A.2d 214, 220 (Pa. 

1999) (holding that where a petitioner fails to satisfy the 
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PCRA time requirements, this Court has no jurisdiction to 

entertain the petition). [The Pennsylvania Supreme Court 

has] also held that even where the PCRA court does not 

address the applicability of the PCRA timing mandate, th[e 

court would] consider the issue sua sponte, as it is a

threshold question implicating our subject matter jurisdiction 

and ability to grant the requested relief.

Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003).

Appellant’s judgment of sentence became final at the end of the day on 

October 5, 2010, which was 90 days after the Pennsylvania Supreme Court 

denied his petition for allowance of appeal and the time for filing a petition for 

a writ of certiorari with the United States Supreme Court expired. See 42 

Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13(1). Appellant then had until 

October 5, 2011 to file a timely PCRA petition. 42 Pa.C.S.A. § 9545(b)(1). As 

Appellant did not file his current petition until April 27, 2018, the current 

petition is manifestly untimely and the burden thus fell upon Appellant to plead 

and prove that one of the enumerated exceptions to the one-year time-bar 

applied to his case. See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. 

Perrin, 947 A.2d 1284, 1286 (Pa. Super. 2008) (to properly invoke a 

statutory exception to the one-year time-bar, the PCRA demands that the 

petitioner properly plead and prove all required elements of the relied-upon 

exception).

Appellant claims that his petition is timely because it falls within the 

newly-discovered fact exception to the PCRA’s one-year time-bar. The 

newly-discovered fact exception provides:
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(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:

. . .

(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[.]

. . .

(2) Any petition invoking an exception provided in paragraph 

(1) shall be filed within one year of the date the claim could 

have been presented.

42 Pa.C.S.A. § 9545(b).2

As our Supreme Court has explained:

subsection (b)(1)(ii) has two components, which must be 

alleged and proved. Namely, the petitioner must establish 

that: 1) “the facts upon which the claim [is] predicated were 

unknown” and (2) “could not have been ascertained by the

exercise of due diligence.” 42 Pa.C.S.

§ 9545(b)(1)(ii)(emphasis added). If the petitioner alleges 

and proves these two components, then the PCRA court has 

jurisdiction over the claim under this subsection.

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2 Prior to December 24, 2018, Section 9545(b)(2) read: “Any petition invoking 

an exception provided in paragraph (1) shall be filed within 60 days of the 

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

(effective to December 23, 2018). However, effective December 24, 2018, 

the legislature amended Section 9545(b)(2) to provide for a one-year 

time-limitation. 42 Pa.C.S.A. § 9545(b)(2) (effective December 24, 2018). 

This current version of Section 9545(b)(2) applies to “claims arising on 

[December] 24, 2017 or thereafter.” See id. at Comment. Appellant filed his 

current petition on April 27, 2018 and sought relief upon facts that he 

discovered in 2018; thus, the current version of Section 9545(b)(2) applies to 

Appellant’s claim.
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Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (emphasis 

omitted).

Appellant claims that Attorney Farrell’s criminal activities caused 

Attorney Farrell to file a frivolous direct appeal on Appellant’s behalf and, thus, 

render ineffective assistance of counsel during Appellant’s direct appeal. 

Appellant’s Second PCRA Petition, 4/27/18, at 3-4. At the outset, we note 

that Attorney Farrell’s criminal activities were completely removed from 

Appellant’s case and Appellant does not explain how Attorney Farrell’s 

unrelated criminal activities could have caused Attorney Farrell to file a 

frivolous direct appeal in his case. Further, our independent review has not 

uncovered any relationship between the fact of Attorney Farrell’s criminal 

activities and Appellant’s ineffective assistance of counsel claim. Thus, 

Appellant’s attempt to plead the newly-discovered fact exception immediately 

fails, as Appellant’s ineffective assistance of counsel claim is not, in any sense, 

“predicated upon” the unrelated fact of Attorney Farrell’s irrelevant criminal 

activities. See 42 Pa.C.S.A. § 9545(b)(1)(ii).

Moreover, and relatedly, Appellant’s attempt to avoid the PCRA’s

one-year time-bar fails since Appellant’s claim asserts that Attorney Farrell 

was ineffective during Appellant’s direct appeal – and Appellant would have 

known of any shortcomings in his direct appeal either at the time the brief

was filed or when this Court issued its August 14, 2009 memorandum. Thus, 

Attorney Farrell’s unrelated and unknown criminal activities did not prevent 

Appellant from asserting his ineffective assistance of counsel claim in his first 
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PCRA petition. For this independent reason, Appellant’s petition fails to satisfy 

the newly-discovered fact exception and is untimely, as Appellant’s ineffective 

assistance of counsel claim is predicated upon alleged briefing failings that 

were known to Appellant in 2009. See 42 Pa.C.S.A. § 9545(b)(1)(ii).

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/8/20