J-S82009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JASON GACOBANO                             :
                                               :
                       Appellant               :   No. 4030 EDA 2017

                Appeal from the PCRA Order November 21, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-1003062-1995


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

MEMORANDUM BY LAZARUS, J.:                            FILED JANUARY 28, 2019

       Jason Gacobano appeals pro se from the trial court’s order, entered in

the Court of Common Pleas of Philadelphia County, dismissing his fifth petition

filed pursuant to the Post-Conviction Relief Act (PCRA).1 Because Gacobano’s

petition is patently untimely and he fails to plead and prove a PCRA timeliness

exception, we affirm.

       On August 22, 1996, a jury convicted Gacobano of rape, involuntary

deviate sexual intercourse, burglary, possession of an instrument of crime,

and conspiracy. On November 25, 1996, Gacobano was sentenced to 14½ to

50 years in prison. He filed a direct appeal and our Court affirmed Gacobano’s




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1   42 Pa.C.S.A. §§ 9541-9546.


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* Retired Senior Judge assigned to the Superior Court.
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judgment of sentence on July 21, 1998. Commonwealth v. Gacobano, 724

A.2d 954 (Pa. Super. filed July 21, 1998) (unpublished memorandum).

        Gacobano filed four PCRA petitions in 1998, 2001, 2006, and 2011.

They were each denied. He filed the instant PCRA petition, his fifth, on May

18, 2012, serial motions for post-conviction DNA testing,2 as well as a

supplemental petition on December 19, 2016.            On October 11, 2017,3 the

court issued Gacobano Pa.R.Crim.P. 907 notice of its intent to dismiss his

petition and supplemental petitions as untimely, without further proceedings.

Gacobano filed no response to the notice and, on November 21, 2017, the

court dismissed the petition. On December 1, 2017, Gacobano filed a timely

notice of appeal.

        Gacobano raises the following issues for our review:

        (1)   Did the trial court err[] when it denied PCRA relief to
              [Gacobano] when the court in error determined that
              [Gacobano] did not invoke an exception to § 9545 in an
              actual innocent and a miscarriage of justice claim?

        (2)   Was trial counsel ineffective for failing to investigate that his
              client, [Gacobano,] was wrongly identified by police as a
              suspect and that [Gacobano] is not and never has been
              Jason Gacobano, thus causing a conviction of an innocent
              man for crimes which he did not commit?


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2   See 42 Pa.C.S. § 9543.1.

3On April 12, 2013, our Court affirmed the trial court’s March 12, 2012 order
denying Gacobano’s petition for DNA testing. Commonwealth v. Gacobano,
65 A.3d 416 (Pa. Super. 2013). The denial of that motion is not currently
before us.


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Appellant’s Brief, at 4.

      Generally, a petition for PCRA relief, including a second or subsequent

petition, must be filed within one year of the date the judgment becomes final.

See 42 Pa.C.S.A. § 9545(b)(3). Instantly, Gacobano’s judgment of sentence

became final on August 21, 1998, when the time to file a petition for allowance

of appeal to the Pennsylvania Supreme Court expired. See Pa.R.A.P. 1113

(defendant has 30 days to file petition for allowance of appeal with Supreme

Court).   Thus, Gacobano had one year from that date, or until August 21,

1999, to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b). He did not

file the instant petition, however, until May 18, 2012, more than twelve years

too late. Accordingly, unless Gacobano pleads and proves an exception to the

PCRA time bar, the PCRA court was without jurisdiction to consider its merits

and properly dismissed his petition as untimely.

      The three exceptions to the PCRA’s one-year time bar, set forth in

section 9545(b)(1), include interference by government officials in the

presentation of the claim, after-discovered facts or evidence, and an after-

recognized constitutional right. See 42 Pa.C.S. §§ 9545(b)(1)(i)-(iii). A PCRA

petition invoking one of these exceptions must “be filed within 60 days of the

date the claims could have been presented.” Id.; see also 42 Pa.C.S.A. §

9545(b)(2).   The timeliness requirements of the PCRA are jurisdictional in

nature;   accordingly,     a   PCRA   court   cannot   hear   untimely   petitions.

Commonwealth v. Robinson, 837 A.2d 1157 (Pa. 2003).


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       Gacobano raises the “newly-discovered facts” exception, set forth in 42

Pa.C.S.A. § 9545(b)(1)(ii), claiming that “[b]etween August and October 2016

he received 12 affidavits signed from witnesses who will testify that [he] is

not and ha[s] never been Jason Gacobano.” Appellant’s Brief, at 7. He claims

that he filed his petition, alleging the exception, within 60 days of the date he

received the last affidavits on October 18, 2016.4

       In his argument, Gacobano “invoke[e]s the Lawson[5] standard for

substantive actual innocence[,]” id., which is set forth in 42 Pa.C.S.A. §

9543(a)(2). However, as our Supreme Court recognized in Commonwealth

v. Burton, 158 A.3d 618 (Pa. 2017):

       The newly-discovered facts exception to the time limitations of the
       Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, as
       set forth in 42 Pa.C.S. § 9545(b)(1)(ii), is distinct from the after-
       discovered evidence basis for relief delineated in 42 Pa.C.S. §
       9543(a)(2). To qualify for an exception to the PCRA’s time
       limitations under subsection 9545(b)(1)(ii), a petitioner need only
       establish that the facts upon which the claim is based were
       unknown to him and could not have been ascertained by the
       exercise of due diligence.      However, where a petition is
       otherwise timely, to prevail on an after-discovered evidence
       claim for relief under subsection 9543(a)(2)(vi), a petitioner must
       prove that (1) the exculpatory evidence has been discovered after
       trial and could not have been obtained at or prior to trial through
       reasonable diligence; (2) the evidence is not cumulative; (3) it is
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4 Section 9545(b)(2) was amended on October 24, 2018, effective in 60 days
(Dec. 24, 2018), extending the time for filing from sixty (60) days of the date
the claim could have been presented, to one year. The amendment applies
to claims arising on December 24, 2017, or thereafter. See Act 2018, Oct.
24, P.L. 894, No. 146, § 3. Here, the 60-day time limit in section 9545(b)(2)
applies to Gacobano’s petition, as he filed his petition on December 19, 2016.

5   Commonwealth v. Lawson, 549 A.2d 107 (Pa. 1988),

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      not being used solely to impeach credibility; and (4) it would likely
      compel a different verdict. Commonwealth v. D'Amato, [] 856
      A.2d 806, 823 (Pa. 2004); see [Commonwealth v.] Cox, 146
      A.3d [221,] 227-28 [(Pa. 2016)] (“Once jurisdiction has been
      properly invoked (by establishing either that the petition was filed
      within one year of the date judgment became final or by
      establishing one of the three exceptions to the PCRA's time-bar),
      the relevant inquiry becomes whether the claim is cognizable
      under [Section 9543] of the PCRA.”).

Id. at 629 (emphasis added). See also Commonwealth v. Bennett, 930

A.2d 1264, 1270 (Pa. 2007) (reference to after-discovered evidence was

“misnomer, since the plain language of subsection (b)(1)(ii) does not require

the petitioner to allege and prove a claim of ‘after-discovered evidence.’”).

      Because Gacobano’s petition is untimely, he must first plead and prove

the “newly-discovered fact” exception before arguing a substantive after-

discovered evidence claim. Succinctly put, pleading and proving the exception

under section 9545(b)(1)(ii) is a threshold issue before a petitioner can prove

a claim under section 9543(a)(2). Here, Gacobano has not explained how the

fact that he is “actually someone else other than Jason Gacobano, and that

the Commonwealth and Philadelphia Police misidentified [him] and charged

and convicted him of crimes he did not commit,” Appellant’s brief at 14, was

unknown to him prior to 2016 and could not have been ascertained sooner by

the exercise of due diligence. 42 Pa.C.S.A. § 9545(b)(1)(ii). Moreover, the

12 affidavits attesting to this “fact” do not provide him any support in proving

this timeliness exception. See Commonwealth v. Johnson, 863 A.2d 423,

427 (Pa. 2004) (focus of section 9545(b)(2)(ii) exception is on newly-



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discovered fact itself, not newly-discovered or newly-willing source for

previously known fact).

       Accordingly, because Gacobano has failed to plead and prove an

exception to save his otherwise untimely PCRA petition, the court did not have

the power to address the merits of his PCRA claims.      Commonwealth v.

Brown, 111 A.3d 171, 176 (Pa. Super. 2015).         Thus, the court properly

dismissed his petition as untimely.6

       Order affirmed.7

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/28/19




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6 Moreover, even if Gacobano had pled and proven the exception under section
9454(b)(1)(ii), it would not have afforded him any relief where the victim
identified him as one of her assailants only moments after he fled and later
threatened to kill her.

7 Because Gacobano has failed to invoke the PCRA court’s jurisdiction, his
ineffectiveness claim is also unreviewable.       See Commonwealth v.
Peterkin, 886 A.2d 1120 (Pa. 2005) (compiling cases that hold claims of
ineffectiveness will not overcome jurisdictional timeliness requirements of
PCRA).

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