J-S16038-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 Super. 2014) (unpublished memorandum), appeal denied,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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