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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SAMUEL FELICIANO
Appellant No. 2899 EDA 2013
Appeal from the PCRA Order of October 3, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0109241-2005
BEFORE: OLSON, OTT and STABILE, JJ.
MEMORANDUM BY OLSON, J.: FILED AUGUST 12, 2014
Appellant, Samuel Feliciano, appeals pro se from the order entered on
October 3, 2013, dismissing his petition filed under the Post-Conviction
-9546. We affirm.
We have previously summarized the factual background of this case as
follows:
[O]n the night of August 14, 2001, multiple individuals were
operating an open air drug operation near a residence located at
230 West Atlantic Street in Philadelphia. These individuals
included [Appellant], Wilma Irizarry, Gilbert Quinon, and Robert
Rodriguez, all of whom were observed going into and out of the
residence at 230 West Atlantic Street.
After having observed a number of street transactions, the
officers arrested [Appellant] and his cohorts. Pursuant to that
arrest, the police searched [Appellant] and found a black plastic
bag in the front of his pants that contained three small vials of
phencyclidine (PCP) with black caps, having a weight of .114
grams. The officers also searched the residence at 230 West
Atlantic Street, and therein discovered the following contraband:
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- in the front corridor, a clear plastic bag containing seven
bluetinted packets of crack cocaine with an aggregate
weigh of 3.5 grams,
- on top of the television, seven Xanax pills and a clear
Ziploc bag containing 2.8 grams of cocaine,
- underneath the couch, a large Ziploc bag containing
177.4 grams of marijuana,
- in the kitchen freezer, the officers discovered a black
plastic bag containing four separate bundles, each bundle
of which contained 25 vials of PCP with blue caps, that had
a total weight of 10.147 grams.
The officers also discovered clear plastic bags with numerous
green and black caps, Ziploc bags, and heat sealable packets.
Apart from the drugs, the officers discovered a welfare card and
Winchester shotgun, a Tek-9 with a silencer, a rifle, and
ammunition.
Commonwealth v. Feliciano, 943 A.2d 312 (Pa. Super. 2007)
(unpublished memorandum), at 1-3.
The procedural history of this case is as follows. On March 6, 2006,
Appellant was found guilty of possession with intent to deliver,1 knowing and
intentional possession of a controlled substance,2 and conspiracy.3 On May
31, 2006, the trial court sentenced Appellant to an aggregate term of 15 to
the sentence because the trial court erred by not imposing the mandatory
1
35 P.S. 780-113(a)(30).
2
35 P.S. 780-113(a)(16).
3
18 Pa.C.S.A. § 903.
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minimum. See id. at 5-8. On March 12, 2008, Appellant was re-sentenced
in absentia
did not file a post-sentence motion or file a direct appeal from his March 12,
2008 judgment of sentence.
On July 10, 2012, more than four years after his judgment of
sentence, Appellant filed a pro se PCRA petition. On December 10, 2012,
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and
-
conviction collateral relief was meritless. On September 5, 2013, the PCRA
court issued notice pursuant to Pennsylvania Rule of Criminal Procedure
907(1) of its intent to dismiss the petition without an evidentiary hearing.
This timely appeal followed.4
Appellant presents two issues for our review:
1. [Was Appel
2. [Did the witnesses at trial commit perjury?]
4
On October 11, 2013, the PCRA court ordered Appellant to file a concise
See
Pa.R.A.P. 1925(b). On October 28, 2013, Appellant filed his concise
statement. On January 8, 2014, the trial court issued its Rule 1925(a)
statement.
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the underlying petition. Thus, we must first determine whether the instant
PCRA Commonwealth v. Smith, 35 A.3d 766,
768 (Pa. Super. 2011), appeal denied, 53 A.3d 757 (Pa. 2012). The
Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013)
(citation omitted). Thus, we shall forego individual assessment of the merits
attention on whether Appellant timely filed his PCRA petition and, if not,
whether h
requirement.
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 time for seeking the
ppealed his
petition was filed on July 10, 2012. Thus, the petition was patently
untimely.5
5
The fact that Appellant was sentenced in absentia does not impact the
timeliness requirement of the PCRA. See Commonwealth v. Pollard, 911
A.2d 1005, 1007 (Pa. Super. 2006).
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An untimely PCRA petition may be considered if one of the following
three exceptions applies:
(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). If an exception applies, a PCRA petition
burden to plead and prove an exception to the PCRA-
Commonwealth v. Wiley, 966 A.2d 1153, 1158 (Pa. Super. 2009) (citation
omitted).
determination that his petition was untimely is incorrect. Instead, he only
argues the merits of his claims. As such, he has waived any argument that
his petition is timely or that he has satisfied one of the three timeliness
exceptions to the PCRA. See Pa.R.A.P. 2116(a), 2119(a). Thus, Appellant
has failed to plead and prove t
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timeliness exceptions. Accordingly, the PCRA court lacked subject matter
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/2014
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