J-A08044-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BRIAN MCKANT 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 113 EDA 2020

Appeal from the PCRA Order Entered November 22, 2019

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

No(s): CP-51-CR-1300294-2006

BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: May 10, 2021

Appellant Brian McKant appeals the order entered by the Court of 

Common Pleas of Philadelphia County denying Appellant’s petition pursuant 

to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. 

Appellant claims the PCRA court erred in finding no merit to Appellant’s claim 

that he is entitled to a new trial due to ineffectiveness of his trial counsel. 

After careful review, we affirm on different grounds than the PCRA court.

1

Appellant was charged in connection with the January 9, 2006 shooting 

death of Lamont Sparrow on West Tioga Street in Philadelphia. In August 

2007, a jury convicted Appellant of first-degree murder, possession of an 

instrument of crime (PIC), and firearms not to be carried without a license. 

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 “[W]e may affirm the PCRA court's decision on any basis.” Commonwealth

v. Charleston, 94 A.3d 1012, 1028 (Pa.Super. 2014) (citation omitted).
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On August 9, 2007, the trial court sentenced Appellant to life imprisonment 

without the possibility of parole for the murder conviction and a concurrent 

sentence of two and one-half (21⁄2) to five (5) years' imprisonment for the PIC 

conviction.

On March 6, 2009, this Court affirmed Appellant's judgment of sentence. 

Commonwealth v. McKant, 972 A.2d 557 (Pa.Super. 2009) (unpublished 

memorandum). The Supreme Court denied Appellant's petition for allowance 

of appeal on November 5, 2009. Commonwealth v. McKant, 983 A.2d 727 

(Pa. 2009).

On August 23, 2010, Appellant filed his first pro se PCRA petition. The 

PCRA court appointed Appellant counsel, who subsequently filed a motion to 

withdraw and a no-merit letter pursuant to Commonwealth v. Turner, 544 

A.2d 917 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 

1988) (en banc). On August 3, 2012, the PCRA court notified Appellant that 

it would dismiss his petition without a hearing pursuant to Pa.R.Crim.P. 907. 

After two pro se responses to the Rule 907 notice, the PCRA court dismissed 

Appellant’s petition on December 4, 2012 and granted his counsel leave to 

withdraw. On February 21, 2014, this Court affirmed the denial of Appellant’s 

PCRA petition. Commonwealth v. McKant, 95 EDA 2013 (Pa.Super. 

February 21, 2014) (unpublished memorandum).

On November 2, 2017, Appellant filed the instant pro se PCRA petition, 

claiming trial counsel was ineffective in failing to object to the trial court’s jury 

instruction on reasonable doubt, which Appellant claims violated his due 
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process rights under the 14th Amendment to the United States Constitution.

Appellant cited to the decision of the U.S. District Court for the Eastern District 

of Pennsylvania in Brooks v. Gilmore, 2:15-CV-05659, 2017 WL 3475475 

(E.D.Pa., filed Aug. 11, 2017), which found a reasonable doubt instruction 

similar to the one issued in Appellant’s trial to be constitutionally infirm.

Appellant claimed that the untimeliness of his PCRA petition could be excused 

as he met the PCRA timeliness exception for newly discovered facts based on 

the Brooks decision. 

Appellant also requested the appointment of counsel, citing Pa.R.Crim.P. 

904(E), which allows courts to appoint counsel “whenever the interests of 

justices require it.” On June 21, 2018, the PCRA court appointed Appellant 

counsel, who filed an amended PCRA petition on Appellant’s behalf on 

February 3, 2019. Thereafter, appointed counsel asked the PCRA court for 

permission to file a second amended petition to argue that the PCRA timeliness 

restrictions are inapplicable as he alleged that trial counsel’s ineffectiveness 

in failing to object to the defective reasonable doubt instruction resulted in a

“miscarriage of justice.” The Commonwealth filed multiple responses arguing 

that Appellant’s petition should be summarily dismissed as it was untimely 

and satisfied no exception to the PCRA time-bar.

On October 3, 2019, the PCRA court issued notice of its intent to deny 

Appellant’s PCRA petition without a hearing pursuant to Rule 907. On October 

23, 2019, Appellant filed a pro se response to the Rule 907 notice. On 

November 22, 2019, the PCRA court filed an order dismissing Appellant’s 
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petition as it “determined that the issues raised by [Appellant] are without 

merit.” 11/22/19, at 1. Appellant filed a timely notice of appeal and complied 

with the PCRA court’s directions that he submit a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant raises the following issues on appeal:

I. Did the PCRA court err in finding that [Appellant’s] right to 

due process under the 5th, 6th, and 14th amendments of the 

U.S. Constitution and Article 1, § 9 of the Pennsylvania 

Constitution was not violated by the trial court’s 

constitutionally infirm reasonable doubt instruction which 

contained a hypothetical that impermissibly raised the 

degree of reasonable doubt required to acquit, thereby 

directing the jury to favor conviction, and improperly 

structured the hypothetical in terms of the jury proceeding 

to take action as opposed to hesitating? 

II. Did the PCRA court err in finding that trial counsel and all 

prior appellate/PCRA counsel were not ineffective in failing 

to object to the violation of [Appellant’s] right to due process 

under the 5th, 6th, and 14th amendments of the U.S. 

Constitution and Article 1, § 9 of the Pennsylvania 

Constitution by the trial court’s constitutionally infirm 

reasonable doubt instruction which contained a hypothetical 

that impermissibly raised the degree of reasonable doubt 

required to acquit, thereby directing the jury to favor 

conviction, and improperly structured the hypothetical in 

terms of the jury taking action as opposed to hesitating? 

Appellant’s Brief, at 3.

Before reaching the merits of Appellant’s arguments on appeal, we must 

determine whether Appellant’s petition was untimely filed. We acknowledge 

that the PCRA court did not address the timeliness of Appellant’s petition but 

simply addressed the merits of Appellant’s claims on appeal. 
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However, it is well-established that “the PCRA's timeliness requirements 

are jurisdictional in nature and must be strictly construed; courts may not 

address the merits of the issues raised in a petition if it is not timely filed.” 

Commonwealth v. Walters, 135 A.3d 589, 591 (Pa.Super. 2016) (citations 

omitted). Generally, a PCRA petition “including a second or subsequent 

petition, shall be filed within one year of the date the judgment of sentence 

becomes final.” 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence becomes 

final at the conclusion of direct review or the expiration of the time for seeking 

the review. 42 Pa.C.S.A. § 9545(b)(3).

However, Pennsylvania courts may consider an untimely PCRA petition 

if the petitioner explicitly pleads and proves one of the three exceptions 

enumerated in Section 9545(b)(1), which include: 

(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.A. § 9545(b)(1)(i)-(iii). At the time Appellant’s petition was filed, 

the PCRA provided that a petitioner was required to plead and prove that he 
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filed his petition invoking one of these exceptions within sixty days of the date 

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

In this case, this Court affirmed the judgment of sentence on March 6, 

2009 and our Supreme Court denied Appellant’s petition for allowance of 

appeal on November 5, 2009. Appellant’s judgment of sentence became final 

ninety days later on February 3, 2010, when the time period for filing a petition 

for writ of certiorari in the Supreme Court of the United States expired. See 

See U.S.Sup.Ct.R. 13. (giving an appellant ninety days to file a petition for a 

writ of certiorari with the Supreme Court after entry of the order denying 

discretionary review). As a result, Appellant had until February 3, 2011 to file 

a timely PCRA petition. Appellant’s petition filed on November 2, 2017, is 

facially untimely.

While Appellant acknowledged that the instant PCRA petition is 

untimely, he first argued that he was entitled to review under the newlydiscovered fact PCRA timeliness exception in Section 9545(b)(1)(ii) as he filed 

his second PCRA petition within 60 days of learning of the Brooks decision. 

To meet the timeliness exception set forth in Section 9545(b)(1)(ii), a 

petitioner must show that “he did not know the facts upon which he based his 

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2 On October 24, 2018, Section 9545(b)(2) was amended to enlarge the sixtyday diligence deadline to a one-year deadline. See Act 2018, Oct. 24, P.L. 

894, No. 146, § 3. The new, extended deadline applies only to claims arising 

on or after December 24, 2017. Id. As Appellant filed his petition on 

November 2, 2017 and the Brooks decision was issued in August 2017, the 

60-day filing requirement applied.
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petition and could not have learned those facts earlier by the exercise of due 

diligence.” Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super. 2015).

However, our Supreme Court has expressly declared that “judicial 

determinations are not facts.” Commonwealth v. Watts, 23 A.3d 980, 986 

(Pa. 2011). Rather, “an in-court ruling or published judicial opinion is law, for 

it is simply the embodiment of abstract principles applied to actual events.” 

Id. at 987. As a result, we find that the Brooks decision does not constitute 

a new “fact” for purposes of satisfying the timeliness exception set forth in 

Section 9545(b)(1)(ii).

3

Moreover, Appellant also argued that the PCRA timeliness requirement 

did not apply to his petition as he asserted that his prior counsel’s failure to 

object to the trial court’s jury instructions resulted in a “miscarriage of justice.” 

However, this Court has held that:

the courts of Pennsylvania will only entertain a “miscarriage of 

justice” claim when the initial timeliness requirement is met. See

Commonwealth v. Fahy, 558 Pa. 313, 330–331, 737 A.2d 214, 

223 (1999), cert. denied, 534 U.S. 944, 122 S.Ct. 323, 151 

L.Ed.2d 241 (2001). Although the courts will review the request 

in a second or subsequent collateral attack on a conviction if there 

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3 To the extent that Appellant’s petition could be construed as suggesting that 

the Brooks decision could satisfy the new constitutional right exception under 

Section 9545(b)(1)(iii), Appellant is not entitled to relief. First, Appellant did 

not file his petition invoking this timeliness exception within sixty days of the 

date his claims could first have been presented, i.e., the date the Brooks 

decision was filed. 42 Pa.C.S.A. § 9545(b)(2). See supra note 2. Second, 

Appellant did not prove the Brooks decision established a new constitutional 

right and that it has been recognized by the Supreme Court of the United 

States or the Supreme Court of Pennsylvania to apply retroactively. 42 

Pa.C.S.A. § 9545(b)(1)(iii). 
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is a strong prima facie showing that a miscarriage of justice 

occurred, Commonwealth v. Morales, 549 Pa. 400, 409–410, 

701 A.2d 516, 520–521 (1997), there is no “miscarriage of 

justice” standard exception to the time requirements of the PCRA. 

Fahy, 558 Pa. at 331, 737 A.2d at 223. Therefore, while we would 

consider a timely petition under the standard set forth in Morales,

this court has no jurisdiction to address an untimely petition.

Commonwealth v. Burton, 936 A.2d 521, 527 (Pa.Super. 2007).

As Appellant failed to plead and prove that his petition meets one of the 

statutory exceptions to the PCRA’s jurisdictional time-bar, we need not 

entertain Appellant’s “miscarriage of justice” claim. As a result, both this 

Court and the PCRA court lack jurisdiction to review the merits of Appellant’s 

claims.

As a result, we affirm the PCRA court’s order dismissing Appellant’s 

second PCRA petition on different grounds.

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/10/21