J-S19041-19

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

BIRDELL BROCKINGTON,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 No. 2249 EDA 2018

Appeal from the PCRA Order Entered June 27, 2018

in the Court of Common Pleas of Lehigh County 

Criminal Division at No(s): CP-39-CR-0002736-1997

BEFORE: LAZARUS, J., KUNSELMAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 12, 2019

Birdell Brockington (Appellant) pro se appeals from the June 27, 2018

order denying his petition filed under the Post Conviction Relief Act (PCRA), 

42 Pa.C.S. §§ 9541-9546. We affirm.

[Appellant’s] convictions stem from an incident on August 

2, 1997, when he and Kevin Taylor burglarized the home of 

Bruce Kight in order to steal personal items from him, and 

subsequently, Taylor shot Kight numerous times, killing him. On 

May 22, 1998, a jury convicted [Appellant] of first-degree 

murder, burglary, criminal trespass, theft by unlawful taking, 

and five counts of criminal conspiracy. Four days later, he was 

sentenced to an aggregate term of life imprisonment. A panel of 

this Court affirmed the judgment of sentence on July 31, 2000, 

and the Pennsylvania Supreme Court denied allowance of appeal 

on December 14, 2000. See Commonwealth v. Brockington, 

764 A.2d 1119 [] (Pa. Super. 2000) (unpublished 

memorandum), appeal denied, 764 A.2d 1064 (Pa. 2000).
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Commonwealth v. Brockington, 159 A.3d 590 at *1 (Pa. Super 2016)

(unpublished memorandum at 1). Appellant’s first two PCRA petitions 

resulted in no relief.

Appellant filed the petition that is the subject of the instant appeal on 

May 14, 2018. Therein, Appellant argued that he was entitled to relief 

because the trial court had given an erroneous jury instruction at Appellant’s

trial. Pro se PCRA Petition, 5/14/2018. Appellant claimed that two

timeliness exceptions applied to this otherwise untimely-filed third PCRA

petition. Id.

The PCRA court issued a notice of its intent to dismiss Appellant’s 

petition without a hearing, to which Appellant filed a response in opposition. 

On June 27, 2018, the PCRA court entered an order dismissing Appellant’s 

petition as an untimely-filed petition that failed to meet any timeliness 

exception. Appellant filed a notice of appeal,1 and both Appellant and the 

PCRA court complied with Pa.R.A.P. 1925.

 

1 The record contains two notices of appeal, both appealing the PCRA court’s 

June 27, 2018 order denying Appellant’s petition. See Notice of Appeal, 

7/19/2018; Notice of Appeal, 7/31/2018. These notices of appeal are 

materially similar, although Appellant’s July 31, 2018 notice of appeal 

contains a certificate of service that his first notice of appeal lacks. Id. This 

second notice of appeal was presumably filed to perfect the first. While the 

latter notice of appeal was filed more than thirty days after the PCRA court’s 

order, this is of no moment, as Appellant’s first, timely-filed notice of appeal 

invoked this Court’s jurisdiction. See Commonwealth v. Williams, 106 

A.3d 583 (Pa. 2014) (holding that a timely notice of appeal, irrespective if it 

is otherwise defective, triggers the jurisdiction of the appellate court). 
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Before we may consider the issues Appellant presents on appeal for 

our review, we must first determine whether Appellant has timely filed his 

PCRA petition, as neither this Court nor the PCRA court has jurisdiction to 

address the merits of an untimely-filed petition. See Commonwealth v. 

Lewis, 63 A.3d 1274, 1280-81 (Pa. Super. 2013) (quoting Commonwealth 

v. Chester, 895 A.2d 520, 522 (Pa. 2006)) (“[I]f a PCRA petition is 

untimely, neither this Court nor the [PCRA] court has jurisdiction over the 

petition. Without jurisdiction, we simply do not have the legal authority to 

address the substantive claims.”). 

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).2 

“For purposes of [the PCRA], a judgment [of sentence] becomes final 

at the conclusion of direct review, including 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.” 42 Pa.C.S. 

§ 9545(b)(3). In this case, our Supreme Court denied Appellant’s petition 

 

2 There are also time restrictions on when a petitioner must file a petition 

after a time-bar-exception claim has arisen. See 42 Pa.C.S. § 9545(b)(2).

On October 24, 2018, the General Assembly amended subsection 9545(b)(2) 

in order to extend the time for filing a petition from 60 days to one year 

from the date the claim could have been presented. See 2018 

Pa.Legis.Serv.Act 2018-146 (S.B. 915), effective December 24, 2018.
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for allowance of appeal on December 14, 2000. Thus, Appellant’s May 14, 

2018 petition is facially untimely.

Nevertheless, we may consider an untimely-filed PCRA petition if 

Appellant pleaded and proved one of three exceptions set forth in 42 Pa.C.S. 

§ 9545(b)(1)(i-iii). Here, although inarticulately stated in his pro se PCRA 

petition and his brief on appeal, Appellant’s petition arguably asserts the 

newly-discovered evidence and retroactively-applied constitutional right 

exceptions found at 42 Pa.C.S. § 9545(b)(1)(ii) (providing an exception 

where “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”) and 42 Pa.C.S. § 9545(b)(1)(iii) (providing an exception where 

“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”). Specifically, Appellant relies upon Bennett v.

Superintendent Graterford SCI, 886 F.3d 268, 288 (3d Cir. 2018) 

(holding “that the trial court’s jury instructions[ on conspiracy and 

accomplice liability were deficient insomuch as they] relieved the 

Commonwealth of its burden of proving that Bennett had the specific intent 

to kill, in violation of his right to due process under the United States 

Constitution”). Upon review, we find Appellant has not satisfied either

exception.
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First, we reiterate that our Courts have expressly rejected the notion 

that judicial decisions can be considered newly-discovered facts which would 

invoke the protections afforded by subsection 9545(b)(1)(ii). See 

Commonwealth v. Watts, 23 A.3d 980, 986 (Pa. 2011) (holding a judicial 

opinion does not qualify as a previously unknown “fact” capable of triggering 

the timeliness exception set forth in section 9545(b)(1)(ii) of the PCRA; 

“[sub]section 9545(b)(1)(ii) applies only if the petitioner has uncovered facts 

that could not have been ascertained through due diligence, and judicial 

determinations are not facts”); Commonwealth v. Brandon, 51 A.3d 231, 

235 (Pa. Super. 2012) (same).

Secondly, in order to satisfy the retroactively-applied constitutional 

right exception, Appellant must allege a constitutional right that was 

recognized by our Supreme Court or the United States Supreme Court and 

has been held to apply retroactively. 42 Pa.C.S. § 9545(b)(1)(ii). Bennett 

does not meet any of these requirements. Bennett was decided by the 

Third Circuit Court of Appeals, not the Pennsylvania Supreme Court or the 

United States Supreme Court and our independent review confirms that 

neither Court has recognized Bennett as establishing a new constitutional 

right3 nor has held any purported right to apply retroactively.

 

3 We agree with the PCRA court’s reading of Bennett insomuch as it 

determined that Bennett did not establish a new constitutional right. See 

PCRA Court Opinion, 9/6/2018, at 5. To the contrary, Bennett merely 

found that the jury instruction given at Bennett’s trial was deficient based on 

(Footnote Continued Next Page)
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Based upon the foregoing, we conclude Appellant’s petition was 

untimely filed and he did not satisfy an exception to the timeliness 

requirements. Thus, the PCRA court lacked jurisdiction to review his 

petition, and he is not entitled to relief. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/12/19

(Footnote Continued) _______________________

existing due process rights. See Bennett, supra 886 F.3d at 288

(concluding “that the trial court’s jury instructions relieved the 

Commonwealth of its burden of proving that Bennett had the specific intent 

to kill, in violation of his right to due process under the United States 

Constitution”).