J-S47007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

JOSE ANTONIO RIVERA-QUINONES,

                         Appellant                     No. 438 MDA 2015


           Appeal from the PCRA Order entered February 5, 2015,
             in the Court of Common Pleas of Lancaster County,
            Criminal Division, at No(s): CP-36-CR-0002545-2007


BEFORE: ALLEN, OTT, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.:                                FILED JULY 24, 2015

      Jose Antonio Rivera-Quinones (“Appellant”) appeals pro se from the

order denying his third petition for post-conviction relief filed pursuant to the

Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.

      The prolonged procedural history is as follows:

            On May 14, 2008, a jury found Appellant guilty of two
         counts of attempted criminal homicide and [related
         charges]. On July 30, 2008, the court sentenced Appellant
         to an aggregate term of not less than thirty-six nor more
         than seventy-two years of incarceration. Appellant timely
         appealed, and this Court affirmed the judgment of
         sentence on October 21, 2009.       [Commonwealth v.
         Rivera-Quinones, [987 A.2d 822 (Pa. Super. 2009)
         (unpublished memorandum)].

            On June 10, 2010, Appellant timely filed his first pro se
         PCRA petition. The court appointed counsel, who filed a
         [no-merit letter and motion to withdraw pursuant to



*Retired Senior Judge assigned to the Superior Court.
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         Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
         and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
         1988) (en banc), on July 9, 2010[.] The PCRA court
         issued notice of its intent to dismiss Appellant’s petition
         without a hearing pursuant to Pennsylvania Rule of
         Criminal Procedure 907(1), and Appellant responded pro
         se. On December 28, 2010, the court permitted counsel to
         withdraw and dismissed the petition. Appellant appealed
         pro se; this Court affirmed the PCRA court’s order on
         October 11, 2011, and our Supreme Court subsequently
         denied review.      (See Commonwealth v. Rivera-
         Quinones, 37 A.3d 1227 (Pa. Super. 2011) (unpublished
         memorandum), appeal denied, 42 A.3d 292 (Pa. 2012)).

            On September 13, 2012, Appellant filed the instant
         second PCRA petition pro se. The PCRA court issued notice
         of its intent to dismiss the petition as untimely on October
         23, 2012, and Appellant did not respond. Thereafter, on
         January 9, 2014, the court dismissed the petition, and
         Appellant timely appealed.

Commonwealth v. Rivera-Quinones, 106 A.3d 160 (Pa. Super. 2014),

unpublished memorandum at 1-3 (footnotes omitted). On August 14, 2014,

we agreed with the PCRA court’s conclusion that Appellant’s second PCRA

petition was untimely, and that Appellant failed to establish a time-bar

exception. See id., unpublished memorandum at 5-7.

      On October 22, 2014, Appellant filed the pro se PCRA petition at issue.

On January 7, 2015, the PCRA court issued Pa.R.Crim.P. 907 notice of intent

to dismiss this latest filing as untimely. Appellant filed his pro se response

on January 26, 2015. By order entered February 5, 2015, the PCRA court

dismissed Appellant’s third petition.

      Appellant filed a timely appeal to this Court, in which he challenges the

PCRA court’s determination that he failed to establish an exception to the


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PCRA’s time bar.       Although the PCRA court did not require Appellant to

comply with Pa.R.A.P. 1925(b), it filed an Pa.R.A.P. 1925(a) opinion on April

13, 2015.

      This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported   by   the    evidence     of   record   and    is   free    of    legal   error.

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).         Moreover, a PCRA court may decline to hold a

hearing on the petition if the PCRA court determines that the petitioner’s

claim is patently frivolous and is without a trace of support in either the

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011

(Pa. Super. 2001).

      The   timeliness     of    a   post-conviction     petition     is    jurisdictional.

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation

omitted). Thus, if a PCRA petition is untimely, neither an appellate court nor

the PCRA court has jurisdiction over the petition. Id. “Without jurisdiction,

we simply do not have the legal authority to address the substantive claims”

raised in an untimely petition. Id.

      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



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becomes final unless the petition alleges, and the petitioner proves, an

exception to the time for filing the petition. Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under

these exceptions, the petitioner must plead and prove that: “(1) there has

been interference by government officials in the presentation of the claim; or

(2)   there    exists   after-discovered    facts    or   evidence;   or   (3)   a   new

constitutional right has been recognized.” Commonwealth v. Fowler, 930

A.2d 586, 591 (Pa. Super. 2007) (citations omitted).                  A PCRA petition

invoking one of these statutory exceptions must “be filed within sixty days of

the date the claim first could have been presented.” Gamboa-Taylor, 753

A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to

the time restrictions of the PCRA must be pled in the petition, and may not

be raised for the first time on appeal.          Commonwealth v. Burton, 936

A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not

raised before the lower court are waived and cannot be raised for the first

time on appeal.”).

      “Here, Appellant’s judgment of sentence became final on November

20, 2009, when his time to seek an appeal to our Supreme Court expired.

See    42     Pa.C.S.A.   §   9545(b)(3).”          Rivera-Quinones,       unpublished

memorandum at 5.          Appellant filed the instant PCRA petition almost five

years later. As a result, his PCRA petition is patently untimely unless he has

satisfied his burden of pleading and proving that one of the enumerated


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exceptions applies. See Commonwealth v. Beasley, 741 A.2d 1258, 1261

(Pa. 1999).

      Within his brief, Appellant refers to a September 22, 2014 hand-

printed affidavit from Jessica Soto which he attached to his third PCRA

petition. In this affidavit, Ms. Soto avers:

         The weapons found on March 23, 2007, in that apartment
         and introduced at trial of [Appellant] were my weapons. I
         was approached to testify at the trial of [Appellant], [b]ut I
         did not want to get involved at the time. I am willing and
         able to testify at any future hearing conducted in this
         matter, if need be, to the contents of this affidavit.

Affidavit, 9/22/14, at 1.

      When considering a PCRA petitioner’s claim that he or she has

established   an        exception    to    the   PCRA’s      time     bar     under    section

9545(b)(1)(ii), the petitioner must establish only that the facts upon which

the claim was predicated were unknown to him, and that he could not have

ascertained   the       facts   earlier   despite   the    exercise     of    due    diligence.

Commonwealth v. Bennett, 930 A.2d 1264, 1270-72 (Pa. 2007).                                The

determination      of     timeliness      does   not      require   a       merits    analysis.

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008).

      In rejecting Appellant’s claim, the PCRA court explained:

             At trial the Commonwealth admitted evidence of certain
         weapons found at the residence of Jessica Soto, his
         girlfriend. Specifically, it was an AK-47 assault rifle, a
         banana clip, 357 Remington ammunition (which was the
         type used for the gun he possessed), and mail and
         photographs. Now, [Appellant] has proffered an affidavit
         that Jessica Soto claims the weapons were hers. However,


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          the affidavit also indicates that she was available to testify
          at trial but did not want to get involved.

PCRA Court Opinion, 4/13/15, at 1. In addition, the PCRA court concluded,

“even if [the weapons] were hers, and [Appellant] merely had access to

them, [this fact] does nothing to add to his defense. [Appellant] was neither

charged nor convicted of any weapons possession offenses[.]” Id. at 2.

       Our review of the record supports the PCRA court’s conclusions, such

that Appellant’s claims to the contrary are unavailing.      At best, Ms. Soto’s

affidavit represents a “newly willing” source of already known facts rather

than “newly-discovered” evidence.              See generally, Commonwealth v.

Edmiston, 64 A.2d 339 (Pa. Super. 213); Commonwealth v. Marshall,

947 A.2d 714 (Pa. 2008). Within his brief, Appellant asserts that because

“Jessica Soto was unavailable at the time of trial, it was impossible for him

to obtain these facts before he ultimately did.” Appellant’s Brief at 17. In

support of this claim, Appellant cites to cases in which the witness had

involved his Fifth Amendment right against self-incrimination.             See id.

However, there is no evidence to support Appellant’s claim that Ms. Soto

invoked her Fifth Amendment right, and in fact, her own affidavit contradicts

Appellant’s assertion.1

____________________________________________


1
  Appellant references the cross-examination testimony from his jury trial in
which Detective Matthew Blake of the Lancaster City Police identified Ms.
Soto as the woman depicted in a photograph with Appellant. N.T., 5/12/08,
at 392. Detective Blake informed Appellant’s trial counsel that he believed
(Footnote Continued Next Page)


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      In sum, the PCRA court correctly determined that it lacked jurisdiction

to consider Appellant’s untimely PCRA petition.     We therefore affirm the

PCRA court’s order denying Appellant post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/2015




                       _______________________
(Footnote Continued)

Ms. Soto pled guilty to possessing one of the weapons found in the
apartment she shared with Appellant.




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