Com. v. Rios, E.

J-S59003-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
EMMANUEL RIOS, :
:
Appellant : No. 993 EDA 2013

Appeal from the PCRA Order Entered March 5, 2013,
In the Court of Common Pleas of Philadelphia County,
Criminal Division, at No. CP-51-CR-1236891-1989.

BEFORE: SHOGAN, J., LAZARUS, J. and STRASSBURGER, J.*

MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 08, 2014

Appellant, Emmanuel Rios, appeals pro se from the order denying his

second petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

The trial court previously summarized the facts of this case as follows:

About 12:51 a.m., September 7, 1987, the body of Shawn
Nelson was found in the northbound lane of a highway in Juniata
Park. He had suffered a gunshot wound to the head. Even
though no bullet ever was found, the Medical Examiner
expressed the opinion that the fatal bullet was .25 caliber.

The detectives learned that Shawn Nelson had been seen
last with Romance McArthur. When McArthur was interviewed as
a witness on September 25, 1987, he denied knowing anything
about the death. Later McArthur admitted he participated in the
shooting along with Angel Rodriguez and [Appellant] for whom
he sold drugs. McArthur sold drugs for them at 8th and Butler
Streets, Philadelphia, and he also brought cocaine from New
York to Philadelphia for them and for others.

* Retired Senior Judge assigned to the Superior Court.
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McArthur’s counsel and the District Attorney reached a
plea agreement by which McArthur entered pleas of guilty to two
charges of murder in the third degree. One of the charges
involved the death of Shawn Nelson and the other involved the
death of Michael Gore.

The plea agreement, which is Commonwealth’s Exhibit 12,
states, in relevant part:

And for his plea of guilty to the same charges, Bills
Number 665, 666, and 667 of September Term
1989, pertaining [to] the Murder of Shawn Nelson, it
is agreed that his sentences in the aggregate shall
not exceed a minimum of 20 nor a maximum of 40
years.

At trial, McArthur testified that Shawn Nelson was killed
because he was interfering with drug business at 8th and Butler,
that he was selling his own material, and that he, Angel
Rodriguez and [Appellant] had a meeting in the 3800 block of
Race street, to decide what to do with Shawn Nelson. At that
meeting Rodriguez and [Appellant] said that they did not want
Shawn Nelson to just get hurt or beat up but they wanted to set
an example by showing other individuals who were selling on the
corner of 8th and Butler what might happen.

Later, on another night, Rodriguez and Shawn Nelson were
arguing and Rodriguez threw a bottle at him. On the date of the
murder, [Appellant] called McArthur and told him to meet him at
Franklin and Luzerne. McArthur complied. Rodriguez and
[Appellant] arrived in a van driven by Rodriguez. McArthur
joined them. They drove to 9th and Butler, turned up Butler
Street and saw Shawn Nelson sitting on a step. [Appellant]
alighted from the van, bearhugged Shawn Nelson and put him in
the van. They drove from the scene and went to Rising Sun
Avenue. Shawn Nelson was being held down on the floor of the
van by [Appellant].

Rodriguez drove to a road known as Snake Hill in Juniata
Park, put the van in park, came to the back of the van and held
Shawn Nelson down with his head on the outside of the van. He

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shot him in the head and threw his body on the street.
[Appellant] then took the wheel of the van and drove away.

Trial Court Opinion, 6/26/96, at 1-3

On December 5, 1990, a jury convicted Appellant of first degree

murder and related crimes. The following day, the trial court sentenced

Appellant to a term of life imprisonment on the murder conviction. Appellant

then filed post-trial motions. After numerous continuances, on June 26,

1996, the trial court granted Appellant a new trial. The Commonwealth filed

an appeal. On July 30, 1997, this Court reversed the trial court’s order

granting a new trial and remanded for sentencing. Commonwealth v.

Rios, 2733 PHL 1996, 701 A.2d 782 (Pa. Super. 1997) (unpublished

memorandum).

On November 18, 1998, upon remand, the trial court sentenced

Appellant to a term of life imprisonment on the murder conviction as well as

various terms of incarceration for Appellant’s related convictions. Appellant

appealed, and on December 31, 1999, this Court affirmed Appellant’s

judgment of sentence. Commonwealth v. Rios, 3698 PHL 1999, 750 A.2d

374 (Pa. Super. 1999) (unpublished memorandum). Appellant did not seek

further review.

On March 16, 2001, Appellant filed his first PCRA petition, which was

denied. In an unpublished memorandum decision, this Court affirmed the

PCRA court on May 13, 2004, and the Pennsylvania Supreme Court denied

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allowance of appeal on June 28, 2005. Commonwealth v. Rios, 741 EDA

2003, 855 A.2d 136 (Pa. Super. 2004), appeal denied, 878 A.2d 864 (Pa.

2005).

On March 31, 2011, Appellant filed the instant PCRA petition, his

second. The PCRA court dismissed the PCRA petition on March 5, 2013.

This appeal followed.

Appellant presents the following issue for our review:

Did the PCRA Court abuse it’s [sic] discretion in denying the
PCRA petition?

Appellant’s Brief at 2.

Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

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.

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Murray, 753 A.2d 201, 203 (Pa. 2000). A judgment of sentence “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 review.” 42 Pa.C.S. §

9545(b)(3).

However, 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),

and (iii), is met.1 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

PCRA’s one-year filing deadline, “the petitioner must plead and prove

1
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).

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specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Carr, 768 A.2d at 1167.

Our review of the record reflects that the trial court imposed a

sentence of life imprisonment on November 18, 1998. This Court affirmed

the judgment of sentence on December 31, 1999. The record does not

reflect that Appellant sought review in the Pennsylvania Supreme Court.

Accordingly, Appellant’s judgment of sentence became final on January 31,

2000,2 thirty days after this Court affirmed the judgment of sentence and

the time for filing a petition for allowance of appeal with the Pennsylvania

Supreme Court expired. 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a).

Appellant did not file the instant PCRA petition until March 31, 2011. Thus,

Appellant’s PCRA petition currently on appeal is patently untimely.

As previously stated, if a petitioner does not file a timely PCRA

petition, his petition may nevertheless be received under any of the three

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S. §

9545(b)(1). If a petitioner asserts one of these exceptions, he must file his

petition within sixty days of the date that the exception could be asserted.

42 Pa.C.S. § 9545(b)(2). As we have held, an appellant must file a PCRA

2
We observe that Appellant needed to file his appeal on or before Monday,
January 31, 2000, because January 30, 2000, was a Sunday. See 1 Pa.C.S.
§ 1908 (stating that, for computations of time, whenever the last day of any
such period shall fall on Saturday or Sunday, or a legal holiday, such day
shall be omitted from the computation).

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petition raising a decision which establishes a newly-recognized

constitutional right within sixty days of the date of issuance of that decision.

See Commonwealth v. Baldwin, 789 A.2d 728, 730-731 (Pa. Super.

2001) (reiterating that PCRA petitions claiming an exception to the

timeliness requirements based upon a constitutional right newly recognized

by the United States Supreme Court or the Pennsylvania Supreme Court

must be presented within sixty days of the newly published decision and

stating that “[n]either the court system nor the correctional system is

obliged to educate or update prisoners concerning changes in case law.”).

Our review of the record reflects that Appellant attempted to invoke

the third exception to the PCRA timeliness requirements, i.e., “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. § 9544(b)(1)(iii). Specifically, Appellant asserted

that the United States Supreme Court cases of Crawford v. Washington,

541 U.S. 36 (2004), Melendez-Diaz v. Massachusetts, 557 U.S. 305

(2009), and Briscoe v. Virginia, 559 U.S. 32 (2010), provide him relief.3

PCRA Petition, 3/31/11.

3
We note that, in his PCRA petition and in his appellate brief, Appellant also
provided reference to this Court’s decision in Commonwealth v. Barton-
Martin, 5 A.3d 363 (Pa. Super. 2010), including an incorrect spelling of the

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Initially, we observe that the United States Supreme Court’s decision

in Crawford was rendered on March 8, 2004. Even assuming for the sake

of argument that the decision is applicable to Appellant’s case and would

provide Appellant relief from the timeliness requirements of the PCRA, we

observe that to qualify for the timeliness exception, Appellant would have

had to present the claim on or before Friday, May 7, 2004. As we previously

stated, Appellant did not file the instant PCRA petition until March 31, 2011.

Thus, any relief that would possibly be afforded by the decision in Crawford

case name ostensibly on the grounds that the Pennsylvania Superior Court’s
decision in Barton-Martin created a newly recognized constitutional right as
contemplated in section 9545(b)(1)(iii) through its retroactive application of
the decision in Melendez–Diaz. See, e.g., PCRA Petition, 3/31/11, at 2, 3;
Appellant’s Brief at (i)(A). However, we rejected this same argument in
Commonwealth v. Brandon, 51 A.3d 231, 235-236 (Pa. Super. 2012),
wherein we clarified that section 9545(b)(1)(iii) contemplates that the
decision recognizing a new constitutional right must come from either the
Pennsylvania Supreme Court or the United States Supreme Court, and
Barton-Martin is a Superior Court decision. Furthermore, in Brandon we
clarified that Barton-Martin does not recognize a new constitutional right,
noting “it simply applies the previously announced ruling articulated by the
U.S. Supreme Court in Melendez–Diaz.” Brandon, 51 A.3d at 236.

In addition, in Barton-Martin, this Court applied Melendez-Diaz in
the direct appeal of a DUI conviction, concluding that “absent a showing that
the laboratory technician was unavailable, and the Appellant had a prior
opportunity to cross-examine her, the laboratory technician’s failure to
testify in the Commonwealth’s case-in-chief violated Appellant’s Sixth
Amendment right to confrontation.” Barton-Martin, 5 A.3d at 369.
However, the instant case involves a collateral appeal and, therefore, the
application of Melendez-Diaz in Barton-Martin, is not pertinent to our
disposition and we will limit our review to the cases of Crawford,
Melendez-Diaz, and Briscoe.

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does not qualify because Appellant has not met the necessary timeliness

exception.

In addition, we observe that the United States Supreme Court’s

decision in Melendez-Diaz was rendered on June 25, 2009. Again,

assuming arguendo that the decision in Melendez-Diaz is applicable to

Appellant’s case, and would possibly provide Appellant relief from the

timeliness requirements of the PCRA, we observe that to qualify for the

timeliness exception, Appellant would have had to present the claim on or

before Monday, August 24, 2009. Baldwin, 789 A.2d at 730-731.

However, Appellant did not file the instant PCRA petition until March 31,

2011. Accordingly, any relief that would possibly be afforded by the decision

in Melendez-Diaz fails to qualify because Appellant has not met the

necessary timeliness exception.

Finally, we observe that the United States Supreme Court’s decision in

Briscoe was rendered on January 25, 2010. Likewise, assuming for the

sake of argument that the decision is applicable to Appellant’s case and

would provide Appellant relief from the timeliness requirements of the PCRA,

we observe that to qualify for the timeliness exception, Appellant would have

had to present the claim on or before Friday, March 26, 2010. Baldwin,

789 A.2d at 730-731. Nevertheless, Appellant did not file the instant PCRA

petition until March 31, 2011. Therefore, any relief that would be afforded

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by the decision in Briscoe does not qualify because Appellant has not met

the necessary timeliness exception.

Appellant attempts to avoid the fact that he has missed the sixty-day

timeliness exception by arguing he first learned of the relevance of the

underlying cases less than sixty days prior to filing the present PCRA

petition. Appellant’s Brief at 19-22. Even if we were to accept Appellant’s

assertion as true, we have previously held the following:

“the sixty-day period begins to run upon the date of the
underlying judicial decision.” Commonwealth v. Boyd, 923
A.2d 513, 517 (Pa. Super. 2007). Ignorance of the law does not
excuse [a petitioner’s] failure to file his petition within the 60
days following the [underlying] decision . . . . Commonwealth
v. Baldwin, 789 A.2d 728, 731 (Pa. Super. 2001). “Neither the
court system nor the correctional system is obliged to educate or
update prisoners concerning changes in case law.” Id.

Commonwealth v. Brandon, 51 A.3d 231, 235 (Pa. Super. 2012).

It is irrelevant that Appellant may have filed the instant PCRA petition

within sixty days of when he first learned of the decisions he now invokes.

The sixty-day period of section 9545(b)(2) began upon the filing date of the

underlying decisions. Therefore, Appellant’s claim that his second PCRA

petition qualified for an exception to the PCRA’s time-bar lacks merit.

Consequently, because the PCRA petition was untimely and no

exceptions apply, the PCRA court lacked jurisdiction to address any claims

presented and grant relief. See Commonwealth v. Fairiror, 809 A.2d

396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to

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hear untimely petition). Likewise, we lack jurisdiction to reach the merits of

the appeal. See Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa.

Super. 2002) (holding that Superior Court lacks jurisdiction to reach merits

of appeal from untimely PCRA petition).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/8/2014

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