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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANGEL ROSA, :
:
Appellant : No. 1702 MDA 2018
Appeal from the PCRA Order Entered September 11, 2018
in the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0001564-2011
BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED MAY 31, 2019
Angel Rosa (“Rosa”) appeals from the Order dismissing his fourth
Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1
We affirm.
In a prior appeal, this Court summarized the relevant history of this case
as follows:
On April 25, 2012, the trial court sentenced Rosa to an
aggregate sentence of 27 to 55 years’ imprisonment, after Rosa
entered an open guilty plea to attempted murder, two counts of
aggravated assault, possession of a firearm prohibited, and
receiving stolen property.[FN1, FN2] Rosa did not file a post sentence
motion or direct appeal. Rosa filed his first PCRA [P]etition on May
14, 2012. Counsel was appointed, and filed an [A]mended
[P]etition on June 24, 2013. A hearing was held on July 1, 2013,
and the PCRA court denied the [P]etition on October 30, 2013.
This Court affirmed the PCRA court’s denial of relief, and the
Pennsylvania Supreme Court denied allowance of appeal on
December 31, 2014. Commonwealth v. Rosa, 106 A.3d 168
____________________________________________
1 42 Pa.C.S.A. §§ 9541-9546.
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(Pa. Super. 2014) (unpublished memorandum), appeal denied,
630 Pa. 735, 106 A.3d 725 (Pa. 2014).
18 Pa.C.S.[A.] §§ 910(1), 2702(a)(1), (a)(4); 6105(a)(1);
[FN1]
and 3925(a), respectively.
[FN2]Rosa was sentenced to 20 to 40 years’ imprisonment on the
attempted murder conviction, a concurrent term of two and one-
half to six years’ imprisonment on the conviction for one count of
aggravated assault, a consecutive term of five to ten years’
imprisonment for persons not to possess firearms, and a term of
two to five years’ imprisonment on the conviction for receiving
stolen property, to run consecutive to the sentence imposed on
the conviction for persons not to possess firearms.
Rosa filed a second PCRA [P]etition on April 6, 2015. The
PCRA court dismissed the [P]etition without a hearing on May 8,
2015. On appeal, this Court, by [J]udgment [O]rder, affirmed the
PCRA court. See Commonwealth v. Rosa, 151 A.3d 1136 …
(Pa. Super. 2016).
Rosa filed [his third] [P]etition on May 19, 2016. The PCRA
court, on August 18, 2016, issued Pa.R.Crim.P. 907 [N]otice of
intent to dismiss without a hearing, and dismissed the [P]etition
by [O]rder dated August 30, 2016, and entered [on] August 31,
2016. [On appeal,] Rosa contend[ed,] inter alia, [that] he was
sentenced based on a prior record score of [“RFEL”] [FN3] and prior
counsel was ineffective in failing to raise this issue.
“RFEL” is the acronym for “Repeat Felony 1/Felony 2 Offender
[FN3]
Category” in the Pennsylvania Sentencing Guidelines. See 204
Pa. Code § 303.4(a)(2).
Commonwealth v. Rosa, 168 A.3d 299 (Pa. Super. 2017) (unpublished
memorandum at 1-2) (three footnotes in original, two footnotes and one
citation omitted). Notably, in his third Petition, Rosa claimed that he was
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sentenced based upon an inaccurate prior record score. Id. (unpublished
memorandum at 3).
On appeal, this Court affirmed the Order of the PCRA court. See id.
(unpublished memorandum at 6).
Rosa filed the instant pro se PCRA Petition, his fourth, on May 15, 2017.
The PCRA court appointed counsel, and directed that an Amended Petition be
filed. Appointed counsel subsequently was granted leave to withdraw
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and
was advised of his right to retain private counsel or proceed pro se. Rosa filed
an appeal of that Order, which this Court quashed as interlocutory. On June
1, 2018, Rosa filed another PCRA Petition, which the PCRA court treated as a
pro se Amended PCRA Petition. The PCRA court afforded Rosa 30 days to
decide whether to proceed pro se or to retain private counsel. In accordance
with Pa.R.Crim.P. 907, the PCRA court also notified Rosa of its intention to
dismiss the Amended PCRA Petition without a hearing. On September 11,
2018, the PCRA court dismissed Rosa’s Amended PCRA Petition. Thereafter,
Rosa filed the instant timely appeal, followed by a court-ordered Pa.R.A.P.
1925(b) Concise Statement of matters complained of on appeal.
Rosa presents the following claims for our review:
I. Did the PCRA court err when it dismissed [Rosa’s] Petition
as untimely[,] where it was timely under 42 Pa.C.S.[A.]
§ 9545(b)(1)(ii)?
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II. Did the PCRA court err when it determined that the Petition
was without merit by concluding that ineffectiveness
regarding the failure to object to the erroneous calculation
of [Rosa’s] prior record score[,] and resulting in an
unreasonable sentence, a claim not raised by collateral
counsel in the first PCRA Petition, was previously litigated
and waived[,] since no court has ruled on the merits of this
claim?
III. D[id] the circumstances before this Honorable Court
constitute[] a miscarriage of justice, in which the courts
have jurisdiction[,] as the miscarriage of justice standard is
independent of the PCRA’s timeliness exceptions[?]
See Brief for Appellant at 4 (most capitalization omitted).
Initially, we recognize that a PCRA petition must be filed within one year
of the date the judgment of sentence becomes final. See 42 Pa.C.S.A.
§ 9545(b)(1). Rosa’s judgment of sentence became final in 2012. See
Commonwealth v. Rosa, 151 A.3d 1136 (Pa. Super. 2016) (recognizing that
Rosa’s judgment of sentence became final on May 25, 2012). Thus, the
present Petition, filed in 2018, is facially untimely.
The PCRA provides that an otherwise untimely petition is not time-
barred if a petitioner pleads and proves the applicability of one of three
timeliness exceptions: (1) interference by government officials, (2) newly
discovered facts, or (3) a newly-recognized constitutional right which had
been applied retroactively. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). “Any
petition invoking an exception provided in paragraph (1) shall be filed within
one year of the date the claim could have been presented.” 42 Pa.C.S.A.
§ 9545(b)(2).
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In his first claim, Rosa argues that the PCRA court improperly deemed
his Petition to be untimely filed. Brief for Appellant at 10. Rosa asserts that
the facts upon which his claim is based were unknown to him, and could not
have been ascertained by the exercise of due diligence. See id. at 10-11.
Specifically, Rosa asserts that his counsel’s March 16, 2017 letter confirmed
that Rosa did not know of the existence of a Pre-Sentence Investigation Report
(“PSI Report”), and that the PSI Report was never provided to Rosa. Id. at
11. Rosa further states that he was unaware of the PSI Report’s existence,
or the impact it would have on his sentence. Id. According to Rosa, his
sentencing counsel rendered ineffective assistance by not consulting with him
regarding discrepancies in the grading of the felonies used to calculate his
prior record score. Id.
In reviewing the order of a PCRA court,
we must determine whether the findings of the PCRA court are
supported by the record and whether the court’s legal conclusions
are free from error. Commonwealth v. Hannibal, 638 Pa. 336,
156 A.3d 197, 206 (Pa. 2016). The findings of the PCRA court
and the evidence of record are viewed in a light most favorable to
the prevailing party. Commonwealth v. Koehler, 614 Pa. 159,
36 A.3d 121, 131 (Pa. 2012). The PCRA court’s credibility
determinations, when supported by the record, are binding;
however, this court applies a de novo standard of review to the
PCRA court’s legal conclusions. Commonwealth v. Roney, 622
Pa. 1, 79 A.3d 595, 603 (Pa. 2013). We must keep in mind that
the petitioner has the burden of persuading this Court that the
PCRA court erred and that such error requires relief.
[Commonwealth v.] Wholaver, 177 A.3d [136,] 144-45 [(Pa.
2018)]. Finally, this Court may affirm a valid judgment or order
for any reason appearing of record. Id. at 145.
Commonwealth v. Montalvo, 2019 Pa. LEXIS 1722, *22.
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In its Opinion, the PCRA court concluded that Rosa’s present PCRA
Petition is untimely, and not subject to any of the PCRA’s timeliness
exceptions. See PCRA Court Opinion, 12/6/18, at 4. Specifically, the PCRA
court stated that the information set forth in Rosa’s PSI Report “cannot be
considered “newly discovered evidence[,] to excuse the untimeliness of this
claim[,] as this information was available to [Rosa] at the time of his
sentencing.” Id. at 4-5.
Our review of the record discloses that, even if Rosa had not been aware
of the contents of his PSI Report at the time of sentencing, he was aware of
it in 2016, when he filed his 2016 PCRA Petition. In his 2016 PCRA Petition,
Rosa argued that
[t]he trial court erroneously included certain prior, out-of-state
convictions when calculating his prior record score and
determining that he was a repeat offender for sentencing
purposes….
PCRA Petition, 9/12/18, at ¶ 2. Our review also discloses correspondence
indicating that Rosa received a copy of the PSI Report in April 2016. See
Letter, 4/27/16 (wherein the President Judge of the common pleas court, in a
letter sent directly to Rosa in response to Rosa’s request, enclosed a copy of
the PSI Report). Thus, Rosa’s claim that the contents of the PSI Report
constitutes newly discovered facts is directly contradicted by the certified
record. Accordingly, we cannot grant him relief on this claim.
In his second claim, Rosa argues that the PCRA court improperly
determined that his claim of ineffective assistance of plea counsel lacks merit.
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However, because Rosa’s Petition is untimely filed, and not subject to any
exception of the timeliness requires, we cannot address this claim. See
Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa. Super. 2013) (stating
that “[i]f a PCRA petition is untimely, neither this Court nor the trial court has
jurisdiction over the petition. Without jurisdiction, we simply do not have the
legal authority to address the substantive claims.” (citation omitted)).
In his third and final claim, Rosa argues that his sentence constitutes a
“miscarriage of justice” and, therefore, this Court should consider his
substantive argument. Brief for Appellant at 25. Rosa directs our attention
to case law stating that a second or subsequent PCRA petition will not be
entertained absent a strong prima facie showing that a miscarriage of justice
has occurred. Id. at 26.
As this Court has explained, “[t]he PCRA confers no authority upon this
Court to fashion ad hoc equitable exceptions to the PCRA time-bar in addition
to those exceptions expressly delineated in the Act.” Commonwealth v.
Harris, 972 A.2d 1196, 1200 (Pa. Super. 2009); see also id. at 1199 (stating
that “[s]tatutory time restrictions may not be altered or disregarded to reach
the merits of the claims raised in the petition.”). Because Rosa’s PCRA Petition
is untimely filed, and not subject to any of the PCRA’s timeliness exceptions,
we affirm the Order of the PCRA court.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/31/2019
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