J-S38036-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JONATHAN JOEL PEREIRA, :
:
Appellant : No. 181 EDA 2014
Appeal from the PCRA Order Entered November 25, 2013,
In the Court of Common Pleas of Lehigh County,
Criminal Division, at No. CP-39-CR-0000093-2011.
BEFORE: FORD ELLIOTT, P.J.E., BOWES and SHOGAN, JJ.
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 07, 2014
Appellant, Jonathan Joel Pereira, appeals from the denial of his second
petition under the Post-Conviction Relie
9546. We affirm.
The trial court previously summarized the facts of the crime as follows:
On November 15, 2010, at approximately 3:30 p.m.,
Allentown police responded to the 1300 block of Turner Street in
Allentown, Pennsylvania, for a report of a male firing a handgun
at a group of people. Upon their arrival, the police recovered
two .22 caliber shell casings in the street and a parked Kia
Spectra sedan that had been shot. Witnesses reported that a
male fired two shots from a handgun at a group of teenagers
who were walking in that area. The group was next to the car
that was shot.
On November 17, 2010, at approximately 3:30 p.m.,
Allentown Police and Emergency Medical Services responded to
the 1400 block of Linden Street in Allentown, Pennsylvania.
There, they located two gunshot victims, a fourteen year old
J-S38036-14
male student and a thirty-four year old male who lived nearby.
The fourteen year old was shot once in the chest, and the older
male was shot multiple times in his body and leg. Both victims
underwent emergency surgery at nearby hospitals. Police
searched the area and found several spent .22 caliber shell
casings along with two live .22 caliber rounds. These casings
were consistent with the ones police recovered at the previous
incident.
On November 18, 2010, witnesses were shown a
photographic array containing [Appellant]. Both witnesses
independently identified [Appellant] as the actor in the latter
shooting. They indicated that [Appellant] produced a large
handgun from a backpack and fired a total of seven shots at the
victims. Later that afternoon, police located [Appellant] and
took him into custody. He was found in possession of a large-
framed Smith and Wesson .22 caliber handgun in his backpack.
Police also located two boxes of .22 caliber ammunition in the
backpack.
Trial court opinion (suppression), 12/5/11, at 2; see also N.T. (guilty plea),
3/19/12, at 25 28. Appellant was charged with one count of attempted
homicide, two counts of aggravated assault, and multiple firearms and
related counts.
Eventually, on March 19, 2012, following denial of various pretrial
motions including suppression and decertification,1 Appellant entered a
negotiated guilty plea to two counts of aggravated assault; the
agreed upon minimum sentence of seven and [one-] half years. N.T. (guilty
plea), 3/19/12, at 12. The trial court imposed a sentence of seven and one-
1
Upon his arrest, Appellant was three weeks away from his eighteenth
birthday. Trial court opinion (suppression), 12/5/11, at 3.
-2-
J-S38036-14
half to fifteen years of imprisonment and ordered the payment of restitution.
Appellant did not file a direct appeal.
On August 14, 2012, Appellant filed a Motion to Modify and Reduce
Sentence, which the trial court treated as a first petition pursuant to the
PCRA. The PCRA court appointed counsel, who filed an amended PCRA
petition asserting claims of ineffective assistance by plea counsel. The PCRA
court held an evidentiary hearing on September 20, 2012, following which
the PCRA court denied the petition on November 13, 2012.
On October 29, 2013, Appellant filed the instant pro se PCRA petition.
The PCRA court issued notice of its intent to dismiss the petition pursuant to
Pa.R.Crim.P. 907 on November 5, 2013. Appellant filed a response on
November 22, 2013, and the PCRA court dismissed the petition on
November 25, 2013. Appellant filed a timely appeal to this Court. The PCRA
court did not order Appellant to comply with Pa.R.A.P. 1925.
Appellant raises the following two issues in this appeal:
1) Whether the lower court erred in denying P.C.R.A. Relief
statutory authorization?
2) Whether the lower court erred in denying P.C.R.A. Relief in
the nature of a finding that the appellant was denied his
constitutional right to effective assistance of counsel during
appellate process?
-3-
J-S38036-14
Our standard of review from the denial of a PCRA petition is limited to
record and free of leg
findings of the PCRA court if the record contains any support for those
this Court, where there is record support for those
Commonwealth v. Timchak, 69 A.3d 765, 769 (Pa. Super. 2013) (quoting
Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)).
A PCRA petition must be filed within one year of the date that the
judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time
requirement is mandatory and jurisdictional in nature, and the court may not
ignore it in order to reach the merits of the petition. Commonwealth v.
Murray es
final at the conclusion of direct review, including discretionary review in the
Supreme Court of the United States and the Supreme Court of Pennsylvania,
§ 9545(b)(3).
Nevertheless, an untimely petition may be received when the petition
alleges, and the petitioner proves, that any of the three limited exceptions to
the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),
-4-
J-S38036-14
and (iii), is met.2 A petition invoking one of these exceptions must be filed
within sixty days of the date the claim could first have been presented.
42 Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions to the
-
specific facts that demonstrate his claim was raised within the sixty-day time
Commonwealth v. Carr, 768 A.2d 1164,
1167 (Pa. Super. 2001).
The record reflects that Appellant did not seek review to this Court
following the imposition of sentence on March 19, 2012. Accordingly,
time for filing a notice of appeal expired. 42 Pa.C.S. § 9545(b)(3). As
noted, a PCRA petition must be filed within one year of the date that the
2
The exceptions to the timeliness requirement are:
(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. § 9545(b)(1)(i), (ii), and (iii).
-5-
J-S38036-14
judgment of sentence becomes final, 42 Pa.C.S. § 9545(b)(1), which was
April 18, 2013. As the instant PCRA petition was filed on October 29, 2013,
it is patently untimely.
Appellant has failed to assert any exceptions to the PCRA time bar;
indeed, he makes no argument concerning the timeliness of the petition. As
as an after-discovered fact to satisfy the requirements of 42 Pa.C.S.A. §
9545(b)(1)(ii). Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007).
Thus, we concur with the PCRA court that this petition is untimely. Because
the court below was without jurisdiction to reach the merits of the petition,
we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2014
-6-