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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
CHRISTIAN BUENO
Appellant No. 2913 EDA 2016
Appeal from the PCRA Order August 16, 2016
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0000791-2011
BEFORE: PANELLA, J., SOLANO, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, J. FILED OCTOBER 06, 2017
Appellant, Christian Bueno, appeals from the order dismissing as
untimely his second petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court summarized the relevant facts and procedural history
of this case as follows:
On September 20, 2011, [Appellant] entered a plea of guilty to
the charge of criminal homicide – murder of the first degree (18
Pa.C.S.A. § 2501(a)). A presentence investigation report was
waived and [Appellant] wished to immediately proceed to
sentencing. [The same day, Appellant] was sentenced to a term
of life imprisonment in a state correctional institution. Thereafter,
on September 30, 2011, [Appellant] filed a post-sentence motion
in the form of a Motion to Withdraw Guilty Plea pursuant to
Pennsylvania Rule of Criminal Procedure Rule 720. After
[conducting a] hearing, this motion was denied by this Court on
October 10, 2011. [Appellant’s] appeal followed on November 8,
2011. Thereafter, this court’s judgment of sentence was affirmed
by the Superior Court of Pennsylvania on August 7, 2012. On
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September 6, 2012, [Appellant] filed a petition for allowance of
appeal with the Supreme Court of Pennsylvania that was denied
on January 9, 2013.
Thereafter, [Appellant] filed a motion for post conviction collateral
relief on January 9, 2014. On February 4, 2014, Sean Poll, Esquire
was appointed to represent [Appellant] on his motion for post
conviction collateral relief. On March 12, 2014, Attorney Poll
authored and filed a letter pursuant to the requirements of
Commonwealth v. Finley, 379 Pa. Super. 390, 550 A.2d 213
(1988). A hearing relative to [Appellant’s] motion was conducted
before this court on May 1, 2014. At the evidentiary hearing,
court-appointed counsel represented to this court that after
thoroughly reviewing the file, he found that there was no legal
basis on which to proceed with [Appellant’s] motion for post
conviction collateral relief. Therefore, this court permitted
Attorney Poll’s withdrawal from the matter. Additionally,
[Appellant] indicated his desire to proceed at a later date with his
motion for post conviction collateral relief and that he would try
to retain private counsel. The hearing was continued to June 12,
2014.
On June 10, 2014, Craig Cooley, Esquire entered his appearance
in the above-captioned matter. On October 8, 2014, Attorney
Cooley filed an amended petition for post conviction collateral
relief. On [Appellant’s] request, this Court continued the matter
to October 22, 2014. At the time of the evidentiary hearing on
October 22, 2014, Attorney Cooley indicated his need for more
time and requested a further continuance of the matter. Said
request was granted, and the matter was continued until
December 23, 2014. The matter was subsequently continued to
February 5, 2015 and then to March 26, 2015. Defense counsel
filed a supplement to the amended petition for post conviction
collateral relief on February 9, 2015, and a second supplemental
amended PCRA petition on March 4, 2015. An evidentiary hearing
relative to [Appellant’s] motion was conducted before this court
on March 26, 2015. Thereafter, on May 13, 2015, this court denied
[Appellant’s] motion for post conviction collateral relief. Then, on
June 8, 2015, [Appellant] filed a notice of appeal with the Superior
Court of Pennsylvania.
PCRA Court Opinion, filed 8/16/16, at 1-3 (unnecessary capitalization
omitted).
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Before our Court rendered a decision in the appeal from Appellant’s first
PCRA petition, Appellant filed a second PCRA petition with the PCRA court on
January 4, 2016. In it, Appellant alleged he had obtained newly-discovered
evidence, which would excuse his late filing. The PCRA court denied the
petition for lack of jurisdiction, as Appellant’s first petition was still on appeal.
On April 19, 2016, our Court affirmed the PCRA court’s denial of
Appellant’s first PCRA petition. On July 6, 2016—78 days later—Appellant
refiled his second PCRA petition, alleging the same newly-discovered evidence
theory. Appellant amended his PCRA petition on August 15, 2016. Following a
hearing to determine the timeliness of Appellant’s purported newly-discovered
evidence, the PCRA court dismissed his petition as untimely. His appeal is now
before us.
Preliminarily, we must consider the timeliness of Appellant’s PCRA
petition. See Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super.
2014).
A PCRA petition, including a second or subsequent one, must be
filed within one year of the date the petitioner’s judgment of
sentence becomes final, unless he pleads and proves one of the
three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
judgment becomes final at the conclusion of direct review by this
Court or the United States Supreme Court, or at the expiration of
the time for seeking such review. 42 Pa.C.S.[A.] § 9545(b)(3).
The PCRA’s timeliness requirements are jurisdictional; therefore,
a court may not address the merits of the issues raised if the
petition was not timely filed. The timeliness requirements apply to
all PCRA petitions, regardless of the nature of the individual claims
raised therein. The PCRA squarely places upon the petitioner the
burden of proving an untimely petition fits within one of the three
exceptions.
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Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (some internal
citations and footnote omitted).
A petitioner asserting one of these exceptions must file a petition within
sixty days of the date the claim could have first been presented. See 42
Pa.C.S.A. § 9545(b)(2). Exceptions to the time-bar must be pled in the
petition, and may not be raised for the first time on appeal. See
Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007). See also
Pa.R.A.P. 302(a) (providing that issues not raised before the lower court are
waived and cannot be raised for the first time on appeal).
In order to establish grounds for relief based on newly-discovered
evidence, a PCRA petitioner
must demonstrate that the evidence: (1) could not have been
obtained prior to the conclusion of the trial by the exercise of
reasonable diligence; (2) is not merely corroborative or
cumulative; (3) will not be used solely to impeach the credibility
of a witness; and (4) would likely result in a different verdict if a
new trial were granted.
Commonwealth v. Padillas, 997 A.2d 356, 363 (Pa. Super. 2010).
A PCRA court may not entertain a new PCRA petition while a prior PCRA
petition is still on appeal. See Commonwealth v. Porter, 35 A.3d 4, 14 (Pa.
2012). Instead, the subsequent petition must be filed within sixty days of the
date of the order finally resolving the previous PCRA petition. See
Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000).
Instantly, Appellant’s judgment of sentence became final on April 9,
2013, when his time for filing a petition for writ of certiorari with the United
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States Supreme Court expired. See U.S.Sup.Ct.R. 13. His second PCRA
petition, filed over three years later on July 6, 2016, is patently untimely.
Thus, the PCRA court lacked jurisdiction to review Appellant’s petition unless
he was able to successfully plead and prove one of the statutory exceptions
to the PCRA’s time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
Appellant alleges he discovered new evidence in the form of an interview
with a previously unknown witness, Felix Oquendo. Appellant claims that Mr.
Oquendo would refute the statement of a Commonwealth witness, Reina
Lopez, who claimed she overheard Appellant confess that he committed the
murder to Mr. Oquendo. The interview with Mr. Oquendo took place on
November 5, 2015. Appellant filed his second PCRA petition containing this
allegation on January 4, 2016. This PCRA petition was denied without
prejudice, as Appellant’s first PCRA petition was still on appeal. On April 19,
2016, this Court affirmed the denial of Appellant’s first PCRA petition. At that
time, Appellant was free to either file a petition for allowance of appeal of his
first PCRA petition to the Pennsylvania Supreme Court, or to discontinue
litigating his first PCRA petition and file a subsequent PCRA petition. Appellant
chose the latter.
However, Appellant refiled his second PCRA petition on July 6, 2016—
78 days after this Court issued an order which finally resolved Appellant’s first
petition. Under Lark, Appellant failed to file this claim within sixty days of the
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first date it could have been presented. See 746 A.2d at 588. Thus, Appellant’s
second petition alleging newly-discovered evidence is untimely.
We briefly note that had we addressed this claim on the merits it would
not have provided Appellant relief. The PCRA court held a hearing on August
15, 2016, to determine whether Mr. Oquendo’s statement was, in fact, newly-
discovered evidence. The PCRA court found that Ms. Lopez gave her statement
in 2011, naming Mr. Oquendo as a witness to Appellant’s alleged confession
to the murder. Appellant was aware of Ms. Lopez’s statement prior to his guilty
plea. Mr. Oquendo was incarcerated in a state prison facility at that time, and
thus his whereabouts were known. From this, the court determined that
Appellant failed to exercise reasonable diligence in interviewing Mr. Oquendo,
and thus Mr. Oquendo’s statement did not constitute newly discovered
evidence. See PCRA Court Opinion, filed 8/16/16, at 5. We agree, and thus
would have found that Appellant’s claim is without merit.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2017
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