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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JOSE ANTONIO RIVERA-QUINONES,
Appellant No. 438 MDA 2015
Appeal from the PCRA Order entered February 5, 2015,
in the Court of Common Pleas of Lancaster County,
Criminal Division, at No(s): CP-36-CR-0002545-2007
BEFORE: ALLEN, OTT, and STRASSBURGER*, JJ.
MEMORANDUM BY ALLEN, J.: FILED JULY 24, 2015
Jose Antonio Rivera-Quinones (“Appellant”) appeals pro se from the
order denying his third petition for post-conviction relief filed pursuant to the
Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.
The prolonged procedural history is as follows:
On May 14, 2008, a jury found Appellant guilty of two
counts of attempted criminal homicide and [related
charges]. On July 30, 2008, the court sentenced Appellant
to an aggregate term of not less than thirty-six nor more
than seventy-two years of incarceration. Appellant timely
appealed, and this Court affirmed the judgment of
sentence on October 21, 2009. [Commonwealth v.
Rivera-Quinones, [987 A.2d 822 (Pa. Super. 2009)
(unpublished memorandum)].
On June 10, 2010, Appellant timely filed his first pro se
PCRA petition. The court appointed counsel, who filed a
[no-merit letter and motion to withdraw pursuant to
*Retired Senior Judge assigned to the Superior Court.
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Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc), on July 9, 2010[.] The PCRA court
issued notice of its intent to dismiss Appellant’s petition
without a hearing pursuant to Pennsylvania Rule of
Criminal Procedure 907(1), and Appellant responded pro
se. On December 28, 2010, the court permitted counsel to
withdraw and dismissed the petition. Appellant appealed
pro se; this Court affirmed the PCRA court’s order on
October 11, 2011, and our Supreme Court subsequently
denied review. (See Commonwealth v. Rivera-
Quinones, 37 A.3d 1227 (Pa. Super. 2011) (unpublished
memorandum), appeal denied, 42 A.3d 292 (Pa. 2012)).
On September 13, 2012, Appellant filed the instant
second PCRA petition pro se. The PCRA court issued notice
of its intent to dismiss the petition as untimely on October
23, 2012, and Appellant did not respond. Thereafter, on
January 9, 2014, the court dismissed the petition, and
Appellant timely appealed.
Commonwealth v. Rivera-Quinones, 106 A.3d 160 (Pa. Super. 2014),
unpublished memorandum at 1-3 (footnotes omitted). On August 14, 2014,
we agreed with the PCRA court’s conclusion that Appellant’s second PCRA
petition was untimely, and that Appellant failed to establish a time-bar
exception. See id., unpublished memorandum at 5-7.
On October 22, 2014, Appellant filed the pro se PCRA petition at issue.
On January 7, 2015, the PCRA court issued Pa.R.Crim.P. 907 notice of intent
to dismiss this latest filing as untimely. Appellant filed his pro se response
on January 26, 2015. By order entered February 5, 2015, the PCRA court
dismissed Appellant’s third petition.
Appellant filed a timely appeal to this Court, in which he challenges the
PCRA court’s determination that he failed to establish an exception to the
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PCRA’s time bar. Although the PCRA court did not require Appellant to
comply with Pa.R.A.P. 1925(b), it filed an Pa.R.A.P. 1925(a) opinion on April
13, 2015.
This Court’s standard of review regarding an order dismissing a
petition under the PCRA is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA
court’s findings will not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,
1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a
hearing on the petition if the PCRA court determines that the petitioner’s
claim is patently frivolous and is without a trace of support in either the
record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011
(Pa. Super. 2001).
The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation
omitted). Thus, if a PCRA petition is untimely, neither an appellate court nor
the PCRA court has jurisdiction over the petition. Id. “Without jurisdiction,
we simply do not have the legal authority to address the substantive claims”
raised in an untimely petition. Id.
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
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becomes final unless the petition alleges, and the petitioner proves, an
exception to the time for filing the petition. Commonwealth v. Gamboa-
Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under
these exceptions, the petitioner must plead and prove that: “(1) there has
been interference by government officials in the presentation of the claim; or
(2) there exists after-discovered facts or evidence; or (3) a new
constitutional right has been recognized.” Commonwealth v. Fowler, 930
A.2d 586, 591 (Pa. Super. 2007) (citations omitted). A PCRA petition
invoking one of these statutory exceptions must “be filed within sixty days of
the date the claim first could have been presented.” Gamboa-Taylor, 753
A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to
the time restrictions of the PCRA must be pled in the petition, and may not
be raised for the first time on appeal. Commonwealth v. Burton, 936
A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not
raised before the lower court are waived and cannot be raised for the first
time on appeal.”).
“Here, Appellant’s judgment of sentence became final on November
20, 2009, when his time to seek an appeal to our Supreme Court expired.
See 42 Pa.C.S.A. § 9545(b)(3).” Rivera-Quinones, unpublished
memorandum at 5. Appellant filed the instant PCRA petition almost five
years later. As a result, his PCRA petition is patently untimely unless he has
satisfied his burden of pleading and proving that one of the enumerated
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exceptions applies. See Commonwealth v. Beasley, 741 A.2d 1258, 1261
(Pa. 1999).
Within his brief, Appellant refers to a September 22, 2014 hand-
printed affidavit from Jessica Soto which he attached to his third PCRA
petition. In this affidavit, Ms. Soto avers:
The weapons found on March 23, 2007, in that apartment
and introduced at trial of [Appellant] were my weapons. I
was approached to testify at the trial of [Appellant], [b]ut I
did not want to get involved at the time. I am willing and
able to testify at any future hearing conducted in this
matter, if need be, to the contents of this affidavit.
Affidavit, 9/22/14, at 1.
When considering a PCRA petitioner’s claim that he or she has
established an exception to the PCRA’s time bar under section
9545(b)(1)(ii), the petitioner must establish only that the facts upon which
the claim was predicated were unknown to him, and that he could not have
ascertained the facts earlier despite the exercise of due diligence.
Commonwealth v. Bennett, 930 A.2d 1264, 1270-72 (Pa. 2007). The
determination of timeliness does not require a merits analysis.
Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008).
In rejecting Appellant’s claim, the PCRA court explained:
At trial the Commonwealth admitted evidence of certain
weapons found at the residence of Jessica Soto, his
girlfriend. Specifically, it was an AK-47 assault rifle, a
banana clip, 357 Remington ammunition (which was the
type used for the gun he possessed), and mail and
photographs. Now, [Appellant] has proffered an affidavit
that Jessica Soto claims the weapons were hers. However,
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the affidavit also indicates that she was available to testify
at trial but did not want to get involved.
PCRA Court Opinion, 4/13/15, at 1. In addition, the PCRA court concluded,
“even if [the weapons] were hers, and [Appellant] merely had access to
them, [this fact] does nothing to add to his defense. [Appellant] was neither
charged nor convicted of any weapons possession offenses[.]” Id. at 2.
Our review of the record supports the PCRA court’s conclusions, such
that Appellant’s claims to the contrary are unavailing. At best, Ms. Soto’s
affidavit represents a “newly willing” source of already known facts rather
than “newly-discovered” evidence. See generally, Commonwealth v.
Edmiston, 64 A.2d 339 (Pa. Super. 213); Commonwealth v. Marshall,
947 A.2d 714 (Pa. 2008). Within his brief, Appellant asserts that because
“Jessica Soto was unavailable at the time of trial, it was impossible for him
to obtain these facts before he ultimately did.” Appellant’s Brief at 17. In
support of this claim, Appellant cites to cases in which the witness had
involved his Fifth Amendment right against self-incrimination. See id.
However, there is no evidence to support Appellant’s claim that Ms. Soto
invoked her Fifth Amendment right, and in fact, her own affidavit contradicts
Appellant’s assertion.1
____________________________________________
1
Appellant references the cross-examination testimony from his jury trial in
which Detective Matthew Blake of the Lancaster City Police identified Ms.
Soto as the woman depicted in a photograph with Appellant. N.T., 5/12/08,
at 392. Detective Blake informed Appellant’s trial counsel that he believed
(Footnote Continued Next Page)
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In sum, the PCRA court correctly determined that it lacked jurisdiction
to consider Appellant’s untimely PCRA petition. We therefore affirm the
PCRA court’s order denying Appellant post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/2015
_______________________
(Footnote Continued)
Ms. Soto pled guilty to possessing one of the weapons found in the
apartment she shared with Appellant.
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