J-S21033-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RAUL DIAZ,
Appellant No. 1374 EDA 2015
Appeal from the PCRA Order April 21, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0802071-1987
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED February 22, 2016
This is a pro se appeal from an order dismissing Appellant’s fourth
petition brought under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546. The PCRA court dismissed the petition on the basis it was
untimely filed. We affirm.
The relevant facts and procedural history are as follows: During the
early morning hours of July 1, 1987, Appellant shot a mother and her adult
daughter at a bar in Philadelphia, and on December 9, 1988, he was
convicted by a jury on two counts of first-degree murder, two counts of
aggravated assault, and one count of possessing an instrument of crime.1
Appellant was sentenced to an aggregate of life in prison.
____________________________________________
1
18 Pa.C.S.A. §§ 2502(a), 2702, and 907, respectively.
*Former Justice specially assigned to the Superior Court.
J-S21033-16
On April 17, 1991, this Court affirmed Appellant’s judgment of
sentence. Commonwealth v. Diaz, 594 A.2d 780 (Pa.Super. 1991)
(unpublished memorandum). Appellant did not file a petition for allowance
of appeal with the Supreme Court.
Appellant filed a first PCRA petition, which was denied on June 6,
1994. This Court affirmed the denial on March 30, 1995, and the Supreme
Court denied allowance of appeal. Commonwealth v. Diaz, 660 A.2d 651
(Pa.Super. 1995) (unpublished memorandum), appeal denied, 665 A.2d 466
(Pa. 1995). Thereafter, Appellant filed a second PCRA petition, which was
dismissed as untimely on May 30, 2002, and this Court affirmed the
dismissal on April 14, 2003. Commonwealth v. Diaz, 828 A.2d 395
(Pa.Super. 2003) (unpublished memorandum). Appellant filed a third PCRA
petition, which was dismissed as untimely on April 15, 2008, and this Court
affirmed the dismissal on June 28, 2013. Commonwealth v. Diaz, 82 A.3d
474 (Pa.Super. 2013).
Appellant filed the instant pro se PCRA petition, his fourth, on August
1, 2014, and the PCRA court provided Appellant with notice of its intent to
dismiss the petition under Pa.R.Crim.P. 907 on the basis it was untimely
filed. Appellant filed a response, and by order entered on April 21, 2015,
the PCRA court dismissed Appellant’s fourth PCRA petition, without an
evidentiary hearing, as untimely. This timely appeal followed.
-2-
J-S21033-16
On appeal, Appellant presents three issues, which we set forth
verbatim as follows:
I. Did the PCRA court violate due process of the law as
determined within the U.S.C.A. 6 and the the U.S.C.A. 14
pertaining to equal protection of the law when they
improperly dismissed the petition before them without the
benefit of any evidentiary hearing to properly and lawfully
conclude the matter presented to them when petitioner
clearly invoked an exception to the time bar requisite in
exercise of due diligence?
II. Does a miscarriage of justice exist within the [Appellant’s]
conviction where the evidence presented was insufficient
to support the weight of the verdict within a conviction for
first degree murder pertaining to both of the victims within
the one criminal episode
III. Does a miscarriage of justice exist within the [Appellant’s]
sentence where the sentencing court misapplied the
Commonwealth’s law and constructed an illegal sentence
of incarceration in direct indifference to the applicable
sentencing laws that were founded at that time and at the
bequest of the Commonwealth’s prosecutor?
Appellant’s Brief at 11.
Preliminarily, we must determine whether Appellant’s fourth PCRA
petition was timely filed. See Commonwealth v. Hutchins, 760 A.2d 50
(Pa.Super. 2000). “Our standard of review of the denial of PCRA relief is
clear; we are limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.” Commonwealth v.
Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008) (quotation and
quotation marks omitted).
-3-
J-S21033-16
Pennsylvania law makes it clear that no court has jurisdiction to hear
an untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500,
837 A.2d 1157 (2003). The most recent amendments to the PCRA, effective
January 19, 1996, provide that a PCRA petition, including a second or
subsequent petition, shall be filed within one year of the date the underlying
judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed
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 the time for seeking review.” 42 Pa.C.S.A. §
9545(b)(3).
The three statutory exceptions to the timeliness provisions in the PCRA
allow for very limited circumstances under which the late filing of a petition
will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a
petition must allege and the petitioner must prove:
(i) the failure to raise a claim previously was the result of
interference by government officials with the
presentation of the claim in violation of the Constitution
or the law of this Commonwealth or the Constitution or
law 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 Pennsylvania after
the time period provide in this section and has been
held by that court to apply retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
-4-
J-S21033-16
“We emphasize that it is the petitioner who bears the burden to allege
and prove that one of the timeliness exceptions applies.” Commonwealth
v. Marshall, 596 Pa. 587, 596, 947 A.2d 714, 719 (2008) (citation
omitted).
Here, Appellant’s judgment of sentence became final on May 17, 1991,
thirty days after this Court affirmed his judgment of sentence and the time
for filing a petition for allowance of appeal with the Supreme Court expired.
See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 1113(e). Appellant, thus, had
until May 18, 1992, to file a timely PCRA petition. Appellant filed the instant
PCRA petition on August 1, 2014, and therefore, it is patently untimely.
Appellant initially attempts to invoke the timeliness exception of 42
Pa.C.S.A. § 9545(b)(1)(ii) pertaining to newly-discovered facts. Specifically,
he alleges, in relevant part, the following:
[A]ppellant within came to this Country as a Cuban
Political Dissident during the Mariella Boat Lift into Miami[,]
Florida. Upon his departure from his country, he had to leave
behind his immediate family which included his juvenile son.
Due too [sic] the political indifferences between the United
States and Cuban governments your appellant had no contact
with any of his family members as they were relocated after his
departure and he was never made aware of their whereabouts.
After several years, and long after your appellant’s conviction[,]
his son, with the assistance of social media, was able to locate
his father and a long distance written relationship ensued
between father and son. During this letter writing relationship,
the incidents of impropriety were relayed to the appellant’s son,
wherein acting in good intention appellant’s son acquired the
criminal abstract of the appellant, and forwarded it to your
appellant which in its form and context purports to the
undeniable fact that your appellant had no prior criminal history
with the court as asserted by the prosecution at trial.
-5-
J-S21033-16
Upon receipt of this information your appellant properly
filed his PCRA petition predicated upon newly discovered
evidence of judicial impropriety based upon the prosecution[’s]
false assertions to the trial court and the jury acting as fact-
finders.
Appellant’s Brief at 12-13.
The Supreme Court has previously explained that the newly-
discovered fact exception in Section 9545(b)(1)(ii) requires the petitioner to
allege and prove that there were “facts” that were “unknown” to him and
that he could not have ascertained those facts by the exercise of “due
diligence.” Commonwealth v. Bennett, 593 Pa. 382, 393-94, 930 A.2d
1264, 1270-72 (2007). A petitioner must allege and prove previously
unknown “facts,” not merely a newly discovered or newly willing source for
previously known facts. Marshall, supra.
Moreover, “[d]ue diligence demands that the petitioner take
reasonable steps to protect his own interests. A petitioner must explain why
he could not have learned the new fact(s) earlier with the exercise of due
diligence. This rule is strictly enforced.” Commonwealth v. Williams, 35
A.3d 44, 52 (Pa.Super. 2011) (citations omitted).
Additionally, as this Court has often explained, all of the time-bar
exceptions are subject to a separate deadline.
The statutory exceptions to the timeliness requirements of the
PCRA are also subject to a separate time limitation and must be
filed within sixty (60) days of the time the claim could first have
been presented. See 42 Pa.C.S.A. § 9545(b)(2). The sixty (60)
day time limit . . . runs from the date the petitioner first learned
of the alleged after-discovered facts. A petitioner must explain
-6-
J-S21033-16
when he first learned of the facts underlying his PCRA claims and
show that he brought his claim within sixty (60) days thereafter.
Williams, 35 A.3d at 53 (citations omitted).
Here, Appellant has made no assertion that he filed the instant PCRA
petition presenting his newly-discovered fact claim within 60 days of when
the claim first could have been presented. Rather, Appellant merely
indicates his son acquired his “criminal abstract” and forwarded it to
Appellant “during their letter writing relationship.” Moreover, there is no
indication that the “facts” alluded to in Appellant’s argument (i.e., his son
receiving a copy of Appellant’s “criminal abstract,” which allegedly indicated
that Appellant had no prior criminal history as suggested by the prosecution
at trial) could not have been ascertained earlier with due diligence. 2
Accordingly, Appellant has not demonstrated the applicability of Section
9545(b)(1)(ii)’s timeliness exception.3
____________________________________________
2
In light of the foregoing, we need not address whether Appellant’s son’s
receipt of a copy of Appellant’s “criminal abstract,” which allegedly proved
Appellant had no prior criminal history, constituted unknown “facts,” as
opposed to constituting a newly discovered or newly willing source for
previously known facts. Marshall, supra.
3
In the PCRA court, Appellant suggested he was entitled to the after-
recognized constitutional right exception of Section 9545(b)(1)(iii) in light of
the U.S. Supreme Court’s opinion in McQuiggin v. Perkins, 133 S.Ct. 1924
(2013) (holding in federal habeas corpus proceedings strict compliance with
one year statute of limitations for the Anti-Terrorism and Effective Death
Penalty Act is not required if the petitioner advances a convincing claim of
actual innocence). PCRA Court Opinion, filed 6/23/15, 2-3. In its opinion,
the PCRA court discussed at length the reasons it rejected Appellant’s
(Footnote Continued Next Page)
-7-
J-S21033-16
Appellant next asserts that his sentence is illegal and, since such a
challenge is nonwaivable, the PCRA court erred in failing to address the
merits thereof.
We agree with Appellant that claims of legality of sentence are
generally nonwaivable. Commonwealth v. Brown, 71 A.3d 1009, 1010
(Pa.Super. 2013). However, the fact that such claims are not waived does
not mean that we have jurisdiction to review them. Waiver and jurisdiction
are separate matters. “Though not technically waivable, a legality [of
sentence] claim may nevertheless be lost should it be raised for the first
time in an untimely PCRA petition for which no time-bar exception applies,
thus depriving the court of jurisdiction over the claim.” Commonwealth v.
Slotcavage, 939 A.2d 901, 903 (Pa.Super. 2007) (citation omitted). Here,
Appellant’s fourth PCRA petition is untimely, and therefore, neither this
Court nor the lower court had jurisdiction over the petition.
Finally, we note Appellant contends the PCRA court erred in dismissing
his PCRA petition without an evidentiary hearing.
[T]he right to an evidentiary hearing on a post-conviction
petition is not absolute. It is within the PCRA court's discretion
to decline to hold a hearing if the petitioner's claim is patently
_______________________
(Footnote Continued)
argument in this regard. Specifically, the PCRA court found “McQuiggin did
not announce a new relevant constitutional [right] that has been made
retroactive by either our Supreme Court or the Supreme Court of the United
States.” PCRA Court Opinion, filed 6/23/15, at 2. In this appeal, Appellant
concedes McQuiggin does not satisfy the exception and, thus, we decline to
address the issue further. See Appellant’s Brief at 14.
-8-
J-S21033-16
frivolous and has no support either in the record or other
evidence. It is the responsibility of the reviewing court on
appeal to examine each issue raised in the PCRA petition in light
of the record certified before it in order to determine if the PCRA
court erred in its determination that there were no genuine
issues of material fact in controversy and in denying relief
without conducting an evidentiary hearing.
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012) (citations and
quotations omitted).
Since Appellant did not successfully invoke any of the exceptions
necessary to circumvent the timeliness requirement, the PCRA court did not
err in dismissing the instant PCRA petition without an evidentiary hearing.
See Commonwealth v. Garcia, 23 A.3d 1059, 1066 (Pa.Super. 2011)
(“[I]t is well settled that the right to an evidentiary hearing on a PCRA
petition is not absolute, and the PCRA court may decline to hold a hearing if
the petitioner’s claims are patently frivolous with no support in either the
record or other evidence.”) (citation omitted)). Moreover, in light of our
conclusion that Appellant’s PCRA petition was untimely filed, we shall not
address Appellant’s remaining substantive claims.
For all of the foregoing reasons, we affirm.
Affirmed.
-9-
J-S21033-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2016
- 10 -