Com. v. Burk, J.Com. v. Burk, J.
James Carl Burk (“Appellant“), pro se, seeks review of the order entered by the Mercer Count Court of Common Pleas dismissing as untimely his third
On November 1, 2011, as a result of his conviction after trial of numerous sexual assault and witness intimidation offenses, the court found Appellant to be a sexually violent predator and sentenced him to an aggregate term of 16½ to 33 years’ incarceration. This Court affirmed the judgment of sentence on October 9, 2012. See Commonwealth v. Burk, 62 A.3d 452 (Pa. Super. 2012) (unpublished memorandum). He sought no further review. His sentence, thus, became final on November 9, 2012. See
Appellant filed two unsuccessful PCRA petitions. On September 5, 2025, he filed his third pro se PCRA petition, the subject of the appeal now before us, titled “Subsequent Petition for Post Conviction Relief,” alleging prosecutorial misconduct and asserting that the trial judge should have recused himself. The PCRA court provided its Notice of Intent to Dismiss pursuant to
Appellant timely appealed. Both Appellant and the court compiled with
Appellant seeks review of the following five issues:2
Whether the Honorable John C. Reed abused his discretion in failing to recuse himself when a conflict of interest was presented by the Commonwealth witness, (Peg Browning), whom [sic] testified as a fact witness who was employed by the same organization the Honorable John C. Reed was a member on the Board of Directors. - Whether the prosecution committed prosecutorial misconduct by vouching for Commonwealth witness, (Chassidy Burk), in opening statements stating that Chassidy Burk cannot and would not lie.
- Whether the prosecution committed prosecutorial misconduct by informing the jury during opening statements that the prosecution would present physical evidence when no physical evidence was presented at trial.
- Whether the prosecutor committed prosecutorial misconduct by informing the jury during opening statements of eyewitnesses when NO eyewitnesses were presented at trial.
- Whether the prosecution committed prosecutorial misconduct by intentionally providing discovery material on a [sic] encoded disk that the defense could not access.
Appellant‘s Br. at 4.
We review the denial of a PCRA petition to determine whether the record supports the PCRA court‘s determination and whether its order is otherwise free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). However, before we review the issues raised on appeal, we must determine whether Appellant‘s petition satisfies our courts’ jurisdictional requirements.
It is well-established that the timeliness of a PCRA petition is jurisdictional; if a PCRA petition is untimely, courts lack jurisdiction over the claims and cannot address substantive claims. Commonwealth v. Wharton, 886 A.2d 1120, 1124 (Pa. 2005). To be timely, a PCRA petition, including a
Here, Appellant‘s petition, filed nearly 13 years after his judgment of sentence became final, is facially untimely. Pennsylvania courts may consider an untimely PCRA petition, however, if the petitioner pleads and proves one of the three exceptions to the time bar set forth in
In his PCRA petition, Appellant claimed that the government interference and newly discovered facts exceptions to the PCRA‘s time bar applied. Those exceptions provide that a petition must plead and a petitioner must prove that:
(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[.]
With regards to the government interference exception, Appellant asserted that “the Mercer County Public Defender‘s Office in ‘Collusion’ with the Mercer County District Attorney‘s office” denied his requests for discovery material which prevented him “from perfecting his appeal.” PCRA Pet., 9/5/25, at 4. With respect to the newly discovered facts exception, Appellant contended that “on several occasions [Appellant] requested discovery material and was denied access to material by the collusion between the Mercer County Public Defendant‘s Office and the Office of the District Attorney.”
In its Rule 1925(a) Opinion, the PCRA court explained that it dismissed Appellant‘s PCRA petition as untimely because Appellant‘s complaints about unsatisfied discovery requests were not supported by argument or case law indicating he was entitled to the discovery he requested. See Tr. Ct. Op., filed 11/26/25, at 2.
In his pro se brief to this Court, Appellant fails to provide any acknowledgment of the untimeliness of his petition or otherwise address the PCRA court‘s dismissal. Instead, he provides recitations of perceived misconduct that occurred at his 2010 trial and a plethora of boilerplate
Based on our review, we conclude Appellant failed to satisfy any exceptions to the one-year time bar provided by the PCRA. Because this third PCRA petition is untimely, this Court is without jurisdiction to address the merits of the issues raised on appeal.
Order affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
DATE: 09/01/2026