J-S74021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CYPRIAN DIAZ                               :
                                               :
                       Appellant               :   No. 978 EDA 2019

              Appeal from the PCRA Order Entered March 8, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0704571-2003


BEFORE:      BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MURRAY, J.:                                Filed: February 7, 2020



        Cyprian Diaz (Appellant) appeals pro se from the order dismissing his

third petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

        A prior panel of this Court summarized the facts and procedural history

of this case:

                After a bench trial, Appellant was found guilty of first degree
        homicide and related offenses. The Commonwealth established
        that Appellant, while an adult, shot and killed his former wife and
        her husband. Appellant unsuccessfully pursued relief on direct
        appeal. Commonwealth v. Diaz, 927 A.2d 649 (Pa. Super.
        2007) (unpublished memorandum). Appellant was granted leave
        to file a Petition for Allowance of Appeal Nunc Pro Tunc, which was
        ultimately denied by our Supreme Court on February 12, 2010.
        Commonwealth v. Diaz, 989 A.2d 914 (Pa. 2010). Appellant

____________________________________________


*   Former Justice specially assigned to the Superior Court.
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       also pursued PCRA relief, which was denied by the PCRA court and
       affirmed on appeal by this Court. Commonwealth v. Diaz, 96
       A.3d 1079 (Pa. Super. 2014). He filed for discretionary review
       with our Supreme Court, which was denied on May 15, 2014.
       Commonwealth v. Diaz, 63 EAL 2014 (Pa. 2014) (unpublished
       in Atlantic Reporter).

              On December 11, 2015, Appellant filed [a] petition, styled
       as a request for habeas corpus relief. On February 8, 2016, the
       trial court determined that the petition must be treated as a
       request for relief under the PCRA, and, since Appellant failed to
       plead and prove an exception to the one-year time bar, issued a
       notice of intent to dismiss informing him of those procedural
       defects. . . . The [PCRA] court thereafter denied the petition on
       March 11, 2016[, and Appellant appealed].

Commonwealth v. Diaz, 1132 EDA 2016, *1-2 (Pa. Super. Feb. 22, 2017)

(unpublished memorandum).

       On February 22, 2017, this Court affirmed the PCRA court’s order

dismissing Appellant’s second PCRA petition. Id. On June 6, 2018, Appellant

filed the underlying pro se petition for habeas corpus relief.1       Appellant

subsequently filed two amended PCRA petitions on July 26, 2018 and August

22, 2018, respectively. On January 18, 2019, the PCRA court issued notice of

its intent to dismiss Appellant’s petition without a hearing pursuant to Rule

907 of the Pennsylvania Rules of Criminal Procedure.          Appellant filed a

response to the court’s notice, and on March 8, 2019, the PCRA court

dismissed Appellant’s petition. Appellant appealed.

       Appellant raises two issues for review:

____________________________________________


1 The PCRA court properly treated this request for relief as a PCRA petition. It
is well-settled that the PCRA is intended to be the sole means of achieving
post-conviction relief. See Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa.
Super. 2013).

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      [1.] Whether Appellant is entitled to Post Conviction relief in the
      form of reinstatement of his right to Allowance of Appeal in the
      Pennsylvania Supreme Court from the May 14, 2007, decision of
      the Superior Court as a result of After-Discovered evidence
      concerning the competency of direct appeal counsel James Bruno,
      appointed December 18, 2007, during the period he suffered from
      Attention Deficit-Hyperactivity Disorder (“ADHD”) according to a
      November 13, 2014, Report and Recommendation of the
      Disciplinary Board of the Supreme Court of Pennsylvania provided
      to Appellant by a fellow prisoner on or about June 20, 2018, in the
      prison law library?

      [2.] Whether the trial court abused its discretion in dismissing
      Appellant’s State Habeas Corpus Petition alleging Penal Statute 18
      Pa.C.S. Section 1102(a) is unconstitutional and void under the
      Vagueness Doctrine because the statute fails to give a person of
      ordinary intelligence fair notice that its true penalty is life
      imprisonment “without parole”?

Appellant’s Brief at 3.

      Preliminarily, in reviewing the denial of a PCRA petition, our review is

limited to examining whether the PCRA court’s findings are supported by the

record and free of legal error. See Commonwealth v. Hanible, 30 A.3d

426, 438 (Pa. 2011). We view the findings of the PCRA court and the evidence

of record in the light most favorable to the prevailing party. Id. “The PCRA

court’s credibility determinations, when supported by the record, are binding

on this Court; however, we apply a de novo standard of review to the PCRA

court’s legal conclusions.” See Commonwealth v. Mason, 130 A.3d 601,

617 (Pa. 2015).

      Further, Pennsylvania law makes clear that no court has jurisdiction to

hear an untimely PCRA petition.     Commonwealth v. Monaco, 996 A.2d


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1076, 1079 (Pa. Super. 2010) (quoting Commonwealth v. Robinson, 837

A.2d 1157, 1161 (Pa. 2003)). A petitioner must file a PCRA petition within

one year of the date on which the petitioner’s judgment of sentence became

final, unless one of the three statutory exceptions applies:

       (i)       the failure to raise the claim previously was the result of
                 interference     by   government     officials  with   the
                 presentation of the claim in violation of the Constitution
                 or laws of this Commonwealth or the Constitution or laws
                 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 the United States or
                 the Supreme Court of Pennsylvania after the time period
                 provided in this section and has been held by that court
                 to apply retroactively.


42 Pa.C.S.A. § 9545(b)(1). A petitioner must file a petition invoking one of

these exceptions “within 60 days of the date the claim could have been

presented.” 42 Pa.C.S.A. § 9545(b)(2).2 If a petition is untimely, and the

petitioner has not pled and proven any exception, “neither this Court nor the

trial court has jurisdiction over the petition. Without jurisdiction, we simply
____________________________________________


2 Act 146 of 2018 amended 42 Pa.C.S.A. § 9545(b)(2), effective December
2018, and now provides that a PCRA petition invoking a timeliness exception
must be filed within one year of the date the claim could have been
presented. Previously, a petitioner had 60 days from when the claim could
have been presented. See Act 2018, Oct. 24, P.L. 894, No. 146, § 2 and § 3.
Section 3 of Act 2018 provides that the amendment to subsection (b)(2) “shall
apply only to claims arising one year before the effective date . . . or
thereafter.” Id. This change does not impact our analysis.


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do not have the legal authority to address the substantive claims.”

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).

      Appellant’s PCRA petition is facially untimely. “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 time for seeking the review.’” Monaco, 996 A.2d at

1079 (quoting 42 Pa.C.S.A. § 9545(b)(3)).

      Here, the trial court entered Appellant’s judgment of sentence on

December 7, 2005. Appellant appealed to this Court and the Pennsylvania

Supreme Court, but did not seek review with the United States Supreme

Court.   Therefore, Appellant’s judgment of sentence became final 90 days

from the February 12, 2010 order denying his petition for allowance of appeal

with the Pennsylvania Supreme Court, or May 13, 2010. See 42 Pa.C.S.A. §

9545(b)(3); U.S.Sup.Ct.R. 13.

      Under Section 9545(b)(1), Appellant had to file his PCRA petition within

one year of his judgment of sentence becoming final – or May 13, 2011.

Appellant did not file the instant petition, his third, until June 6, 2018.

Accordingly, we are without jurisdiction to decide Appellant’s appeal unless he

pled and proved one of the three timeliness exceptions of Section 9545(b)(1).

See Derrickson, 923 A.2d at 468.

      Appellant argues that he satisfied the newly-discovered fact exception

under Section 9545(b)(1)(ii), and therefore, the PCRA court has jurisdiction

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over the merits of his petition.3         In order to qualify for this exception, a

petitioner must establish that (1) he did not know the facts upon which he

based his petition, and (2) he could not have learned those facts earlier with

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

components “must be alleged and proven as an initial jurisdictional threshold.”

Commonwealth v. Diggs, 220 A.3d 1112, 1117 (Pa. Super. 2019) (citation

omitted).

       Appellant argues that he meets the newly-discovered fact exception to

the PCRA time bar because his court-appointed attorney on direct appeal

“suffered from Attention Deficit-Hyperactivity Disorder [] according to a

November 13, 2014[] Report and Recommendation of the Disciplinary Board
____________________________________________


3 Throughout his brief, Appellant uses the term “after-discovered facts,”
instead of “newly discovered facts” in pleading an exception to the PCRA time-
bar. There is an important and often misapprehended distinction between the
newly discovered facts exception to the time limitations of the PCRA and after-
discovered evidence as a basis for substantive relief. The Supreme Court of
Pennsylvania offered the following clarification:

       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 not being used solely to
       impeach credibility; and (4) it would likely compel a different
       verdict.

Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 2017).

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of the Supreme Court of Pennsylvania provided to Appellant by a fellow

prisoner on or about June 20, 2018[] in the prison law library[.]” Appellant’s

Brief at 3. Appellant’s July 26, 2018 amended petition further explains:

            On December 18, 2007, the [PCRA] court appointed
      Attorney [James] Bruno to represent [Appellant] in his PCRA
      matter.

                                     *         *   *

             [Attorney] Bruno had significant personal issues and legal
      difficulties that greatly hindered him from adequately advising and
      representing [Appellant]. Despite all of these personal and
      professional problems, [Attorney] Bruno did not attempt to
      withdraw his representation and continued to represent
      [Appellant].

                                     *         *   *

              The allegations that [Appellant] has made in this Amended
      petition go to the heart of Attorney Bruno’s representation of
      [Appellant]. Where an attorney is rendered incompetent by
      personal or disciplinary problems, [Appellant] is not represented
      by ineffective counsel, but is essentially represented by no counsel
      at all.

                                     *         *   *

             If the abandonment of counsel of his client warrants
      relieving a defendant of the requirement of proving prejudice to
      sustain a claim of ineffectiveness assistance of counsel, such a
      claim, as the one made in the instant matter, must trump the time
      requirements for filing a claim of the after-discovered facts
      exception under 42 Pa.C.S.A. § 9545(b)(1)(ii).

Appellant’s Amended PCRA Petition, 7/26/18, at 4-6, 8. See also Appellant’s

Brief at 8 (“Appellant submits that he is entitled to post-conviction relief based

upon after-discovered evidence since his right to competent counsel was



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compromised by Attorney Bruno’s competency during direct appeal in the

Pennsylvania Supreme Court.”).

          Here, the PCRA court concluded that Appellant failed to satisfy any of

the statutory exceptions to the PCRA time-bar. In particular, the PCRA court

determined that the newly discovered fact exception did not apply because

the “new facts” Appellant alleged in his petition involved claims of his counsel’s

ineffectiveness, which are not recognized as facts under the PCRA statute.

PCRA Court’s Opinion, 7/15/19, at 5 (citing Commonwealth v. Wharton,

886 A.2d 1120, 1127 (Pa. 2005).

          We agree.    Appellant’s attempt to interweave a claim of ineffective

assistance of counsel with the newly discovered facts exception as a means of

establishing jurisdiction is unavailing.        See id. (“It is well settled that

allegations of ineffective assistance of counsel will not overcome the

jurisdictional timelines requirements of the PCRA.”); Commonwealth v.

Gamboa-Taylor, 753 A.2d 780, 785 (Pa. 2000) (“This Court has stated

previously that a claim for ineffective assistance of counsel does not save an

otherwise untimely petition for review on the merits.”) (citations omitted).

          In sum, a claim that prior counsel was ineffective is not the type of newly

discovered fact encompassed by the exception. Because Appellant’s petition

is untimely and not subject to a statutory exception to the PCRA’s time bar,

the PCRA court lacked jurisdiction.        We therefore affirm the order denying

relief.



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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/7/20




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