Com. v. Barber, D.

J-S13028-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DARIEN BARBER :
:
Appellant : No. 2074 EDA 2022
Appeal from the PCRA Order Entered July 15, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at CP-51-CR-0901961-2005
BEFORE: NICHOLS, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED MAY 17, 2023
Darien Barber (Appellant) appeals pro se from the dismissal of his third
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-46. We affirm.
On September 27, 2006, a jury convicted Appellant of second degree
murder, robbery, burglary, and criminal conspiracy.1 On November 21, 2006,
the trial court sentenced Appellant to life in prison. This Court affirmed the
judgment of sentence, and the Pennsylvania Supreme Court denied allowance
of appeal. Commonwealth v. Barber, 954 A.2d 31 (Pa. Super. 2008)
(unpublished memorandum), appeal denied, 963 A.2d 466 (Pa. 2009).
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2502(b), 3701(a)(1), 3502(a), and 903.
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Appellant previously filed two PCRA petitions without success. See
Commonwealth v. Barber, 55 A.3d 129 (Pa. Super. 2012) (unpublished
memorandum), appeal denied, 72 A.3d 599 (Pa. 2013); Commonwealth
v. Barber, 224 A.3d 795 (Pa. Super. 2019) (unpublished memorandum),
appeal denied, 235 A.3d 275 (Pa. 2020). Appellant pro se filed the instant
petition, his third, on August 12, 2020. The PCRA court issued Pa.R.Crim.P.
907 notice of intent to dismiss the petition because it was “untimely filed and
[did] not invoke an exception to the timeliness provision of the Post Conviction
Relief Act, 42 Pa. Cons. Stat. §9545(b)(1)(i)-(iii).” Notice Pursuant to Criminal
Rule of Procedure 907, 5/20/22, at 1. The PCRA court entered an order and
opinion dismissing the petition on July 15, 2022. Appellant pro se filed a
timely notice of appeal. The PCRA court did not order Appellant to file a
Pa.R.A.P. 1925(b) statement; the PCRA court has submitted its July 15, 2022
opinion in support of affirmance.
Appellant presents two issues:
[1.] WHETHER THE PCRA COURT COMMITTED AN ERROR OF
LAW IN FAILING TO PROPERLY APPLY THE STANDARD FOR [THE]
DETERMINATION OF EXCEPTIONS AS SET FORTH BY
Commonwealth v. Cox, 146 A.3D 221, 227 (Pa. 2016), AND
Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007)?
[2.] WHETHER [THE] PCRA COURT COMMITTED AN ERROR OF
LAW IN ITS DETERMINATION THAT NO GOVERNMENTAL
INTERFERENCE OCCURED BY THE PROSECUTOR’S SUPPRESSION
OF EVIDENCE IN VIOLATION [OF] Brady v. Maryland, 373 U.S.
83 (1963) WHERE THE PROSECUTOR[] EXAMINING ITS WITNESS
AS TO [APPELLANT’S] CONVICTION IN THE ABSENCE OF
DISCLOSING MATERIAL EVIDENCE PERTINENT TO THE
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CONVICTION CLEARLY SHOWS THE POSSIBILITY OF
APPELLANT’S CLAIM BEING VALID?
Appellant’s Brief at i.
Our review of the PCRA court’s dismissal of Appellant’s petition is limited
to “whether the PCRA court’s determination is supported by the record and
free of legal error.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.
Super. 2014) (citation omitted). “The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the certified record.”
Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citations
omitted).
Instantly, we must determine whether Appellant’s PCRA petition is
timely.2 “Pennsylvania law makes clear that no court has jurisdiction to hear
an untimely PCRA petition.” Commonwealth v. Monaco, 996 A.2d 1076,
1079 (Pa. Super. 2010) (quoting Commonwealth v. Robinson, 837 A.2d
1157, 1161 (Pa. 2003)). “The PCRA’s timeliness requirements are
jurisdictional; therefore, a court may not address the merits of the issues
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2 Like the PCRA court, the Commonwealth contends Appellant’s PCRA petition
is untimely. See Commonwealth Brief at 5 (stating Appellant “did not meet
his burden to establish the government interference exception because he
cannot prove that the government kept him from raising this claim for 11
years when the information was available to him during trial.”); id. (stating
“information [Appellant] found in the notes of testimony does not constitute a
‘new fact’ for purposes of the new fact exception to the timeliness
requirements of the PCRA.”).
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raised if the petition was not timely filed.” Commonwealth v. Jones, 54
A.3d 14, 17 (Pa. 2012).
“A judgment 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 the time for seeking
the review.” 42 Pa.C.S.A. § 9545(b)(3). A petitioner must file a PCRA petition
within one year of the judgment becoming final unless a statutory exception
applies. 42 Pa.C.S.A. § 9545(b)(1). The exceptions are: “(1) interference by
government officials in the presentation of the claim; (2) newly discovered
facts; and (3) an after-recognized constitutional right.” Commonwealth v.
Brandon, 51 A.3d 231, 233-34 (Pa. Super. 2012); see also 42 Pa.C.S.A. §
9545(b)(1)(i-iii). A petitioner invoking an exception must do so within a year
of the date the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2).
If a petition is untimely and the petitioner has not pled and proven an
exception, “neither this Court nor the trial court has jurisdiction over the
petition. Without jurisdiction, we simply do not have the legal authority to
address the substantive claims.” Commonwealth v. Derrickson, 923 A.2d
466, 468 (Pa. Super. 2007) (citation omitted).
Appellant concedes his PCRA petition is untimely. However, he claims
that, after reviewing the sentencing transcript of a Commonwealth witness,
Tory Patterson, he learned that Mr. Patterson had a prosecutorial agreement
with the Commonwealth in return for his testimony against Appellant.
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Appellant’s Brief at 4-10. Appellant claims the Commonwealth’s failure to
disclose the agreement with Mr. Patterson constitutes the governmental
interference and newly discovered facts exceptions to the PCRA time bar. See
id. Appellant’s claim is baseless.3
The PCRA court explained:
Appellant attempted to satisfy the previously-unknown fact
exception, §9545(b)(1)(ii), as well as the governmental
interference exception, § 9545(b)(1)(i), by claiming that he
recently discovered that one of the prosecution’s witnesses may
have been offered a more lenient sentence in 2005, that the
prosecution failed to inform [Appellant] of this situation, and [he]
did not learn this information until his mother ordered a transcript
of [Patterson’s] sentencing hearing, which [Appellant] received in
2018.
***
[Appellant’s] allegation is belied by the record, and by
[Appellant’s] own admission. Patterson’s sentencing took place
on February 10, 2005, prior to [Appellant’s] trial, and therefore,
this information existed, and has been available, since that time.
More importantly, [Appellant] acknowledges, and the record
reflects, that Patterson was in fact questioned about his
sentencing by the prosecutor at [Appellant’s] trial. Therefore,
[Appellant’s] acquisition of the sentencing transcript [from]
Patterson’s sentencing was not the discovery of an unknown fact.
[Appellant] failed to explain what triggered his mother to request
the transcript in 2018. However, any such explanation would not
demonstrate [Appellant’s] due diligence, since the transcript was
in existence … and, as noted, was raised in the prosecution’s
questioning of Patterson during his testimony at [Appellant’s]
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3 Appellant’s pro se status “does not entitle him to any advantage.” See, e.g.,
Commonwealth v. Ray, 134 A.3d 1109, 1114-15 (Pa. Super. 2016)
(citations omitted).
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trial. … [T]he information reflected in the record would not
support [Appellant’s] claim that Patterson’s lenient sentence was
based on his cooperating testimony in [Appellant’s] trial. To the
contrary, the sentencing transcript specifically reflects that
Patterson’s lenient sentence was based upon his plea of guilty,
and not any promise of leniency for his testimony in [Appellant’s]
trial, which took place after [Patterson’s] sentencing hearing.
[Appellant’s] claims therefore do not establish a previously
unknown fact which could not have been ascertained by the
exercise of due diligence.
Similarly, [Appellant’s] attempt to invoke the governmental
interference exception, by claiming that the prosecution neglected
to disclose this alleged promise of leniency to Patterson, must also
fail. … [T]he record of his trial testimony reflects that it was the
prosecution who actually questioned Patterson about whether he
attempted to obtain “help” in his own case in exchange for
favorable testimony at [Appellant’s] trial. Rather than interfering
with [Appellant] obtaining this information, the issue was raised
and initiated by the prosecutor. The fact that Patterson denied
this allegation is of no consequence. The issue was raised at
[Appellant’s] trial by the prosecution, which is sufficient to
demonstrate that there was no governmental interference
prohibiting [Appellant] from obtaining this information. To the
contrary, this establishes that the information was brought out by
the prosecution itself. Therefore, [Appellant’s] claim of
governmental interference cannot be maintained.
PCRA Court Opinion, 7/15/22, at 1-3.
Upon review, we agree with the PCRA court’s analysis. Appellant’s PCRA
petition is untimely and he has not satisfied an exception to the PCRA’s time
bar. We thus affirm the denial of relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2023
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