J-S10008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    FRANCISCO QUERENDONGO                      :
                                               :
                       Appellant               :   No. 1529 EDA 2018

                   Appeal from the PCRA Order April 27, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0108811-2000


BEFORE:      GANTMAN, P.J.E., STABILE, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                               FILED MARCH 22, 2019

        Appellant, Francisco Querendongo, pro se, appeals from the order of the

Court of Common Pleas of Philadelphia County, entered April 27, 2018, that

dismissed his third petition filed under the Post Conviction Relief Act (PCRA)1

without a hearing. We affirm.

        The facts surrounding the crime out of which this matters arises were

set forth by Appellant in detail in a videotaped confession and in the course of

a pre-trial court-ordered psychiatric examination in 2000.2 As the trial court

explained:



____________________________________________


1   42 Pa.C.S. §§ 9541-9546.

2 Prior to trial, the parties’ counsel agreed that Appellant would submit to a
mental health examination, and the psychiatrist’s report would be submitted
at trial by stipulation.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S10008-19


            On January 3, 2000, [Appellant] visited his brother, Arturo,
     at his home, where they drank beer and rum with a group of three
     other men. At approximately 7 p.m. the men left Arturo’s house
     and went to the bar to play pool. The men stayed at the bar for
     approximately one hour. Upon leaving the bar, Arturo drove
     [Appellant] to his home at 2050 East Susquehanna Avenue.

            [Appellant] began cooking dinner and approximately one
     hour later, he heard a knock at the door. As he opened the door,
     [Appellant] saw Ms. Christine Nash (hereinafter decedent or Ms.
     Nash) and invited her into the living room. [Appellant] accused
     Ms. Nash of having stolen his television and play station two weeks
     prior to that night. She denied any involvement with the missing
     items and told [Appellant] that she needed money. [Appellant]
     told Ms. Nash that he would give her twenty dollars if she had sex
     with him. She agreed and [Appellant] gave her twenty dollars.
     The two snorted cocaine, went upstairs to the middle bedroom,
     undressed and began to have sex. Within minutes, Christine Nash
     changed her mind and wanted [Appellant] to stop. [Appellant]
     stopped, however, he wanted his twenty dollars returned. Ms.
     Nash refused and began laughing at [Appellant].

           [Appellant] became agitated and angered by her constant
     mocking and went to his bedroom to retrieve a gun. He returned
     with a double barrel shotgun and threatened her but she
     continued to laugh. [Appellant] threw the gun down and grabbed
     Christine Nash’s neck and began to squeeze with both hands.
     [Appellant] threw Ms. Nash to the floor, pinned her shoulders to
     the floor with his knees and repeatedly told her “this is so you
     won’t make fun of me and so you won’t take me for a fool” as he
     continued to squeeze her neck. When Ms. Nash was motionless
     on the floor, [Appellant] decided to dress her and planned to throw
     her body in the yard of the abandoned house next door to
     [Appellant’s] house. [Appellant] recovered his twenty dollars from
     Ms. Nash’s jacket. While dressing the decedent, [Appellant] was
     interrupted by a knock at the door. [Appellant] answered the door
     to see his sister, Rosemary Batista and her children standing on
     the steps. [Appellant] refused to let his sister into the house and
     told her to leave because he had “just killed the Hija de la gran
     puta.” Mrs. Batista left while [Appellant] went upstairs into the
     middle bedroom, looked at the decedent and decided to leave the
     house. [Appellant] never returned home.




                                    -2-
J-S10008-19


Trial Court Opinion, filed February 12, 2001, at 1-3 (footnotes and citations

omitted).

      In January 2001, Appellant was convicted, following a bench trial, of

first-degree murder, and sentenced to life in prison. This Court affirmed the

judgment of sentence, and on January 8, 2003, the Supreme Court of

Pennsylvania    denied    allowance    of   appeal.       Commonwealth         v.

Querendongo, 806 A.2d 465 (Pa. Super. 2002) (unpublished memorandum),

appeal denied, 815 A.2d 1041 (Pa. 2003).

      On May 26, 2003, Appellant filed his first pro se PCRA petition. The

PCRA court denied the petition for lack of merit on July 9, 2004. This Court

affirmed the decision of the PCRA court on November 21, 2005, and on May

9, 2006, the Supreme Court of Pennsylvania denied allowance of appeal.

Commonwealth v. Querendongo, 890 A.2d 1104 (Pa. Super. 2005)

(unpublished memorandum), appeal denied, 898 A.2d 1070 (Pa. 2006).

Appellant filed a second PCRA petition, pro se, on September 29, 2015. On

June 21, 2016, the PCRA court dismissed the petition as untimely filed.

Appellant timely filed a pro se notice of appeal, and this Court affirmed.

Commonwealth v. Querendongo, 169 A.3d 1219 (Pa. Super. 2017)

(unpublished memorandum).

       On June 5, 2017, Appellant filed the instant pro se PCRA petition, his

third. In his petition, Appellant claims that there are substantial questions

about his mental state and ability to form the intent to kill necessary to sustain


                                      -3-
J-S10008-19


his first-degree murder conviction. PCRA Petition at 4. Appellant asserts that

the facts upon which he asserts his claim are contained in medical records,

specifically, a January, 2001 mental health evaluation conducted shortly after

he began serving his sentence. He alleges he became aware of the medical

records in May, 2017.     Appellant was permitted to submit a supplemental

petition, to which he attached affidavits from his brother and sister, both of

whom testified at his trial, averring that Appellant was intoxicated at the time

of the murder and that he had a history of mental illness.

      The issue of Appellant’s mental health and his capacity to form a specific

intent to kill was thoroughly litigated at his 2000 trial and in his direct appeal.

In his pre-trial report, the court-appointed psychiatrist indicated that

Appellant had an impulsive personality related to an abusive upbringing and

that this impulsive behavior was more likely to occur when he was intoxicated

with drugs or drinking. Mental Health Evaluation, 12/21/2000, at 3. He further

stated, based on Appellant’s report to him that he had been drinking heavily

and using cocaine just before the incident, that “alcohol and cocaine played a

substantial role in diminishing [Appellant’s] capacity to control his rage.” Id.

The psychiatrist opined, predicated on corroboration of events as described by

Appellant, that Appellant was not capable of formulating a specific intent to

kill at the time of the crime; however, he further stated, “[t]he main element

that I find against a possible diminished capacity defense is [Appellant’s]




                                       -4-
J-S10008-19


ability to remember and vividly describe the dynamics of the crime. Id. at 3-

4.

       In his statement of matters complained of on appeal in his direct

appeal, Appellant asserted, inter alia, that his “mental history and the court’s

mental health examination confirmed [Appellant] was laboring under mental

defects sufficient to reduce the grading of the offense to third degree murder

or manslaughter[.]” Concise Statement of Matters Complained of on Appeal,

filed February 21, 2000. In its 1925(a) opinion in the direct appeal, the trial

court provided a thorough evaluation of the evidence adduced at trial and

explained its rejection of Appellant’s diminished capacity claims.

      The evidence reveals that [Appellant] used deadly force on a vital
      part of the victim’s body, causing her death. The evidence that
      deadly force was used on a vital part of the body is sufficient to
      establish the premeditation necessary to form the specific intent
      to support murder in the first degree.          [Appellant] further
      maintains that his drug and alcohol use on the day in question
      mitigated the case to no higher than third degree murder or
      involuntary manslaughter because he was incapable of forming
      the requisite specific intent to kill necessary to find first degree
      murder. This argument is also unsustainable…

      [Appellant] did not prove that alcohol overwhelmed him to the
      point where he lost his faculties. To the contrary, [Appellant’s]
      actions show that he was sufficiently in control of his faculties to
      dress the decedent, remove the twenty dollars from her jacket
      and devise a plan to get rid of her body. Additionally, other
      evidence makes clear that [Appellant] was thinking and behaving
      coherently during the entire incident…

      There is no credible evidence in the record to support the
      conclusion that the defendant was overwhelmed or overpowered
      by drug and alcohol abuse to such an extent as to be incapable of
      forming the specific intent to murder…


                                     -5-
J-S10008-19


       In the instant case, the court ordered a mental health evaluation
       which was prepared by Pietro Miazzo, M.D., a board certified
       forensic psychiatrist, who concluded that [Appellant’s] ability to
       remember and vividly describe the crime in great detail mitigated
       against any finding of diminished capacity. The trial court further
       notes that [Appellant’s] videotape confession makes abundantly
       clear that [Appellant] was fully aware of his acts and lacked any
       remorse. Moreover, [Appellant’s] action at the time of the murder
       further prove that he was not laboring under any mental illness
       sufficient to deprive him of his ability to appreciate the
       wrongfulness of his acts or to conform his conduct to the
       requirements of law.

Trial Court Opinion, filed February 12, 2001, at 6-8, 10 (citations omitted).

On appeal, this Court adopted the trial court’s analysis and conclusion.

Commonwealth         v.   Querendongo,         No.   576   EDA   2001,   unpublished

memorandum at 1 (Pa. Super. filed June 24, 2002). In his first PCRA petition,

Appellant again raised, unsuccessfully, the issue of diminished capacity.3

       In his third PCRA petition, Appellant asserts that due to his mental

incompetence, he could not have discovered the evidence that he lacked the

specific intent to kill his victim sooner, and would not have learned it at all,




____________________________________________


3 Appellant also filed, on July 5, 2006, a pro se petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254, alleging, inter alia, that evidence of his
intoxication and extensive mental history warranted conviction for
manslaughter, not first-degree murder. The United States District Court
denied the petition, quoting extensively from the trial court’s 1925(a) opinion,
and concluded that the evidence was sufficient to find the killing of Ms. Nash
intentional and that Appellant knew what he was doing at the time of the
crime. Querendongo v. Tennis, No. CIV A 06-2925, 2007 WL 2142387, at *8-
10 (E.D. Pa. filed July 23, 2007)(Memoradum/Order).



                                           -6-
J-S10008-19


but for assistance he received from family members and others in procuring

his medical records. PCRA Petition at 3.

        Pursuant to Pa.R.Crim.P. 907, Appellant was served notice of the PCRA

court’s intention to dismiss his petition (“Rule 907 Notice”) on March 26, 2018.

He submitted a response to the notice on April 13, 2018, and on April 27,

2018, the PCRA court dismissed his petition as untimely. On May 21, 2018,

Appellant filed this timely appeal.4

        “We review the denial of PCRA relief to decide whether the PCRA court’s

factual determinations are supported by the record and are free of legal error.”

Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018); Commonwealth

v. Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017) (citation omitted). The

timeliness of a post-conviction petition is jurisdictional. Commonwealth v.

Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). Generally, a petition for

relief under the PCRA, including a second or subsequent petition, must be filed

within one year of the date the judgment of sentence is final, unless the

petition alleges and the petitioner proves one of the three exceptions to the

time limitations for filing the petition set forth in section 9545(b) of the

statute. See 42 Pa.C.S. § 9545(b)(1).5

____________________________________________


4 The PCRA court did not order Appellant to file a Rule 1925(b) concise
statement of matters complained of on appeal. The PCRA Court entered its
opinion on July 30, 2018.

5   The three exceptions to the timeliness requirements are:



                                           -7-
J-S10008-19



       A petition attempting to invoke these exceptions “shall be filed within

60 days of the date the claim could have been presented.” Id. § 9545(b)(2);6

see Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000). In

the current appeal, the PCRA court concluded that it lacked jurisdiction over

Appellant’s third PCRA petition, because the petition was untimely and failed

to satisfy an exception to the PCRA’s time bar. PCRA Court Opinion, filed July

30, 2018, at 5.

       This Court affirmed Appellant’s judgment of sentence on June 24, 2002,

and on January 8, 2003, the Supreme Court of Pennsylvania denied allowance


____________________________________________




       (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. § 9545(b)(1)(i)-(iii).

6Section 3 of Act 2018, Oct. 24, P.L. 894, No. 146, changed the timeframe of
42 Pa.C.S. § 9545(b)(2) from 60 days to one year. The change was effective
on December 24, 2018, and applied retroactively to claims arising on
December 4, 2017, or thereafter. Appellant’s third PCRA petition was filed on
June 5, 2017. Thus, the expansion of time to file a claim to one year does not
apply to the instant petition.

                                           -8-
J-S10008-19



of appeal. His judgment of sentence therefore became final for PCRA purposes

on April 8, 2003, ninety days after the Pennsylvania Supreme Court denied

allocator and the time for filing a petition for writ of certiorari with the United

States Supreme Court expired. See 42 Pa.C.S. § 9545(b)(3); U.S. Sup. Ct.

R. 13.   His current petition, filed on June 5, 2017, was therefore untimely by

approximately 14 years, unless Appellant satisfied one of the three exceptions

in § 9545(b) and filed his PCRA within 60 days of the date that he could have

first raised the claim in question.

      Appellant invokes the timeliness exception set forth in Section

9545(b)(2)(ii), which requires that he demonstrate (a) that he did not know

the facts upon which he based his position, and (b) that he could not have

learned those facts earlier by the exercise of due diligence. Commonwealth

v. Fennell, 180 A.3d 778, 782 (Pa. Super. 2018) (en banc).

      To satisfy the first prong of Section 9545(b)(2)(ii), a petition must plead

and prove that the facts upon which the claim is predicated were unknown;

the timeliness exception cannot be satisfied by merely offering a “newly willing

source for previously known facts.” Commonwealth v. Marshall, 947 A.2d

714, 722 (Pa. 2008) (claims did not fall under exception to the timeliness

requirements of the PCRA where appellant merely offered another source for

claims of discrimination that he leveled previously); Commonwealth v.

Lambert, 57 A.3d 645, 648-49 (Pa. Super. 2012) (witness’ affidavit alleging

prosecutor’s corruption was not newly-discovered evidence sufficient to

qualify appellant for exemption where claims of prosecutorial misconduct had

                                       -9-
J-S10008-19



been alleged in every appeal and post-conviction petition since conviction).

The record amply demonstrates Appellant’s knowledge of his defense of

possible diminished capacity and litigation of this issue at trial, on appeal, and

in his first PCRA petition.    We find that the evaluation and affidavits he

presents do not constitute more than new sources for facts of which he was

already aware.

      Furthermore, assuming arguendo that Appellant had established that

the requisite facts upon which his claim is predicated were unknown to him,

he would still be required to establish that he could not have ascertained such

facts by the exercise of due diligence. See Commonwealth v. Breakiron,

781 A.2d 94, 98 (Pa. 2001) (petitioner must explain why he could not have

obtained the new fact(s) earlier with the exercise of due diligence);

Commonwealth v. Monaco, 996 A.2d 1076-1080 (Pa. Super. 2010), appeal

denied, 20 A.3d 1210 (Pa. 2011) (appellant had to demonstrate he exercised

due diligence in learning the purported “newly discovered” fact of his PTSD).

      The mental health evaluation on which the PCRA petition is based here

dates from 2001. It was therefore capable of being obtained in 2001, 16 years

before the PCRA petition was filed. Appellant argues that under our Supreme

Court’s decision in Commonwealth v. Cruz, 852 A.2d 288 (Pa. 2004), his

2001 medical records were unascertainable until 2017, when he filed his

petition, because he suffered from, and continues to suffer from, mental

illness that precluded him from obtaining such records sooner. Appellant’s

reliance on Cruz is misplaced.     In that case, the appellant had suffered a

                                      - 10 -
J-S10008-19



severe brain injury from a self-inflicted gunshot wound prior to his entry of a

nolo contendere plea to second-degree murder. The Supreme Court vacated

and remanded to the PCRA court for a limited hearing wherein the appellant

could attempt to prove:


      (1)     that he was and remained incompetent throughout the period
              during which his right to file a PCRA petition lapsed; and

      (2)     that his current petition was timely filed within 60 days of his
              becoming sufficiently competent to ascertain the facts upon which
              his underlying claims are predicated.

Id. at 288.    The Cruz Court was satisfied that the effects of the gunshot

wound, as evidenced by plea counsel’s statement at the plea hearing that

appellant was “lobotomized” and unable to discuss the fact of the case

sensibly, mitigated against any concern that his belated claim of incompetence

was fraudulent.     Id. at 296.   This Court has previously summarized the

Supreme Court’s holding in Cruz as follows:

             The petitioner entered a plea…because according to his
      defense counsel he could not “discuss the facts of [his] case in
      any sort of sensible way,” as a result of the injuries resulting from
      his suicide attempt. Despite the petitioner’s condition, defense
      counsel did not claim incompetence, and no determination
      regarding the petitioner’s competency was made. After nearly six
      years had passed, the petitioner filed a pro se PCRA petition,
      essentially alleging that he had only recently recovered from his
      self-inflicted gunshot wound to the degree of mental competency
      required to know and understand the facts of his case. Therefore,
      the petitioner argued that he could submit his first PCRA petition
      only recently. The court held, and the Superior Court affirmed,
      that the petitioner’s case did not qualify under the after-
      discovered evidence exception to the time bar of the PCRA.



                                     - 11 -
J-S10008-19


              On appeal, the Supreme Court noted that there had not
       been any determination that the petitioner was incompetent or
       that he regained competency. Additionally, the Supreme Court
       noted that in the petitioner’s case, it was indisputable that
       petitioner had sustained a serious brain injury that impaired his
       brain function, and that it takes time for such an injury to heal.
       The Court further stated that the record contained nothing to
       sufficiently and definitively establish if and when the petitioner
       had passed from incompetence to competence, and that the
       petitioner had failed to prove that he was incompetent at the
       pertinent times, or that he had brought his claims during the sixty
       day window provided by the after-discovered evidence exception.
       The Court held that given the language of the exception coupled
       with the unique circumstances of the petitioner’s case, the
       petitioner should be provided the opportunity to prove that he was
       incompetent at the relevant times, and that his incompetence
       qualifies under the after-discovered evidence exception.

Commonwealth v. Liebensperger, 904 A.2d 40, 46-47 (Pa. Super. 2006)

(citations to Cruz omitted). The Liebensperger Court held that Cruz did not

apply where the PCRA petitioner suffered from some mental conditions,

including mild mental retardation, but did not have a brain injury, and that he

was capable of cooperating in his own defense. 904 A.2d at 46.

       Here, Appellant asserts generally that he has always been mentally ill,

and points specifically to his “below average intelligence, interpretation

problems, memory problems, anxiety, irritability, poor attention span, and

poor insight.”7 Appellant’s Brief at 13. These conditions, even if accepted as

____________________________________________


7 In his pre-trial report, the court-ordered psychiatrist offered his evaluation
of Appellant’s mental status:

       [Appellant] is a cooperative, somewhat disheveled Hispanic male.
       His speech is coherent and logical, but he speaks only Spanish and



                                          - 12 -
J-S10008-19


true, do not constitute incompetency sufficient to prevent Appellant from the

exercise of due diligence.

       Only under a very limited circumstance has the Supreme Court
       ever allowed a form of mental illness or incompetence to excuse
       an otherwise untimely PCRA petition. Thus, the general rule
       remains that mental illness or psychological condition, absent
       more, will not serve as an exception to the PCRA’s jurisdictional
       time requirements.

Monaco, 996 A.2d at 1080-81 (citations omitted.)

       The PCRA court held that Appellant “has failed to demonstrate that his

mental health history rose, at any point, to the level of incompetence,” and

further    that    Appellant’s     own     averments   contradict   his   purported

incompetence. PRCA Court Opinion, July 30, 2018, at 4. We agree. Appellant

has actively pursued his avenues of relief over a nearly 18-year period, and

the fact that he has sought assistance in recent years from family members

and “jailhouse lawyers” does not establish the degree of incompetency

recognized in Cruz. Moreover, Appellant has not alleged a point in time at

which he passed from incompetence to the degree of competence required to

file a PCRA petition. In fact, he still contends that he continues to be mentally

incompetent, despite his multiple, coherent pro se filings. He cannot therefore


____________________________________________


       the interview is done in Spanish. No psychotic symptoms are
       noted or reported and no suicidal ideation is reported. His affect
       is appropriate in range and quality. He is alert, oriented, but his
       fund of information is poor while his long and short-term memory
       are generally fair. He was unable to interpret a simple proverb.

Mental Health Evaluation, 12/21/2000, at 3.

                                          - 13 -
J-S10008-19


establish that he only became able to obtain the 2001 mental health

evaluation less than 60 days before he filed the PCRA petition in 2017.

     Appellant has failed to prove an exception to the PCRA’s timeliness

provision, and the PCRA court correctly dismissed his petition as untimely.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/22/19




                                    - 14 -
