J-S21033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

RAUL DIAZ,

                            Appellant                No. 1374 EDA 2015


                   Appeal from the PCRA Order April 21, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0802071-1987

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

MEMORANDUM BY STEVENS, P.J.E.:                   FILED February 22, 2016

        This is a pro se appeal from an order dismissing Appellant’s fourth

petition brought under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. The PCRA court dismissed the petition on the basis it was

untimely filed. We affirm.

        The relevant facts and procedural history are as follows: During the

early morning hours of July 1, 1987, Appellant shot a mother and her adult

daughter at a bar in Philadelphia, and on December 9, 1988, he was

convicted by a jury on two counts of first-degree murder, two counts of

aggravated assault, and one count of possessing an instrument of crime.1

Appellant was sentenced to an aggregate of life in prison.

____________________________________________


1
    18 Pa.C.S.A. §§ 2502(a), 2702, and 907, respectively.



*Former Justice specially assigned to the Superior Court.
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         On April 17, 1991, this Court affirmed Appellant’s judgment of

sentence.      Commonwealth v. Diaz, 594 A.2d 780 (Pa.Super. 1991)

(unpublished memorandum). Appellant did not file a petition for allowance

of appeal with the Supreme Court.

         Appellant filed a first PCRA petition, which was denied on June 6,

1994. This Court affirmed the denial on March 30, 1995, and the Supreme

Court denied allowance of appeal. Commonwealth v. Diaz, 660 A.2d 651

(Pa.Super. 1995) (unpublished memorandum), appeal denied, 665 A.2d 466

(Pa. 1995). Thereafter, Appellant filed a second PCRA petition, which was

dismissed as untimely on May 30, 2002, and this Court affirmed the

dismissal on April 14, 2003.        Commonwealth v. Diaz, 828 A.2d 395

(Pa.Super. 2003) (unpublished memorandum). Appellant filed a third PCRA

petition, which was dismissed as untimely on April 15, 2008, and this Court

affirmed the dismissal on June 28, 2013. Commonwealth v. Diaz, 82 A.3d

474 (Pa.Super. 2013).

         Appellant filed the instant pro se PCRA petition, his fourth, on August

1, 2014, and the PCRA court provided Appellant with notice of its intent to

dismiss the petition under Pa.R.Crim.P. 907 on the basis it was untimely

filed.   Appellant filed a response, and by order entered on April 21, 2015,

the PCRA court dismissed Appellant’s fourth PCRA petition, without an

evidentiary hearing, as untimely. This timely appeal followed.




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      On appeal, Appellant presents three issues, which we set forth

verbatim as follows:

      I.     Did the PCRA court violate due process of the law as
             determined within the U.S.C.A. 6 and the the U.S.C.A. 14
             pertaining to equal protection of the law when they
             improperly dismissed the petition before them without the
             benefit of any evidentiary hearing to properly and lawfully
             conclude the matter presented to them when petitioner
             clearly invoked an exception to the time bar requisite in
             exercise of due diligence?

      II.    Does a miscarriage of justice exist within the [Appellant’s]
             conviction where the evidence presented was insufficient
             to support the weight of the verdict within a conviction for
             first degree murder pertaining to both of the victims within
             the one criminal episode

      III.   Does a miscarriage of justice exist within the [Appellant’s]
             sentence where the sentencing court misapplied the
             Commonwealth’s law and constructed an illegal sentence
             of incarceration in direct indifference to the applicable
             sentencing laws that were founded at that time and at the
             bequest of the Commonwealth’s prosecutor?

Appellant’s Brief at 11.

      Preliminarily, we must determine whether Appellant’s fourth PCRA

petition was timely filed. See Commonwealth v. Hutchins, 760 A.2d 50

(Pa.Super. 2000).      “Our standard of review of the denial of PCRA relief is

clear; we are limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.”         Commonwealth v.

Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008) (quotation and

quotation marks omitted).




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      Pennsylvania law makes it clear that no court has jurisdiction to hear

an untimely PCRA petition.     Commonwealth v. Robinson, 575 Pa. 500,

837 A.2d 1157 (2003). The most recent amendments to the PCRA, effective

January 19, 1996, provide that a PCRA petition, including a second or

subsequent petition, shall be filed within one year of the date the underlying

judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). 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 the time for seeking review.” 42 Pa.C.S.A. §

9545(b)(3).

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused. 42 Pa.C.S.A. § 9545(b)(1).        To invoke an exception, a

petition must allege and the petitioner must prove:

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

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

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      “We emphasize that it is the petitioner who bears the burden to allege

and prove that one of the timeliness exceptions applies.” Commonwealth

v. Marshall, 596 Pa. 587, 596, 947 A.2d 714, 719 (2008) (citation

omitted).

      Here, Appellant’s judgment of sentence became final on May 17, 1991,

thirty days after this Court affirmed his judgment of sentence and the time

for filing a petition for allowance of appeal with the Supreme Court expired.

See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 1113(e).        Appellant, thus, had

until May 18, 1992, to file a timely PCRA petition. Appellant filed the instant

PCRA petition on August 1, 2014, and therefore, it is patently untimely.

      Appellant initially attempts to invoke the timeliness exception of 42

Pa.C.S.A. § 9545(b)(1)(ii) pertaining to newly-discovered facts. Specifically,

he alleges, in relevant part, the following:

             [A]ppellant within came to this Country as a Cuban
      Political Dissident during the Mariella Boat Lift into Miami[,]
      Florida. Upon his departure from his country, he had to leave
      behind his immediate family which included his juvenile son.
      Due too [sic] the political indifferences between the United
      States and Cuban governments your appellant had no contact
      with any of his family members as they were relocated after his
      departure and he was never made aware of their whereabouts.
      After several years, and long after your appellant’s conviction[,]
      his son, with the assistance of social media, was able to locate
      his father and a long distance written relationship ensued
      between father and son. During this letter writing relationship,
      the incidents of impropriety were relayed to the appellant’s son,
      wherein acting in good intention appellant’s son acquired the
      criminal abstract of the appellant, and forwarded it to your
      appellant which in its form and context purports to the
      undeniable fact that your appellant had no prior criminal history
      with the court as asserted by the prosecution at trial.

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            Upon receipt of this information your appellant properly
      filed his PCRA petition predicated upon newly discovered
      evidence of judicial impropriety based upon the prosecution[’s]
      false assertions to the trial court and the jury acting as fact-
      finders.

Appellant’s Brief at 12-13.

      The     Supreme   Court    has   previously    explained     that   the   newly-

discovered fact exception in Section 9545(b)(1)(ii) requires the petitioner to

allege and prove that there were “facts” that were “unknown” to him and

that he could not have ascertained those facts by the exercise of “due

diligence.”   Commonwealth v. Bennett, 593 Pa. 382, 393-94, 930 A.2d

1264, 1270-72 (2007).         A petitioner must allege and prove previously

unknown “facts,” not merely a newly discovered or newly willing source for

previously known facts. Marshall, supra.

      Moreover,    “[d]ue     diligence    demands    that   the    petitioner    take

reasonable steps to protect his own interests. A petitioner must explain why

he could not have learned the new fact(s) earlier with the exercise of due

diligence. This rule is strictly enforced.” Commonwealth v. Williams, 35

A.3d 44, 52 (Pa.Super. 2011) (citations omitted).

      Additionally, as this Court has often explained, all of the time-bar

exceptions are subject to a separate deadline.

      The statutory exceptions to the timeliness requirements of the
      PCRA are also subject to a separate time limitation and must be
      filed within sixty (60) days of the time the claim could first have
      been presented. See 42 Pa.C.S.A. § 9545(b)(2). The sixty (60)
      day time limit . . . runs from the date the petitioner first learned
      of the alleged after-discovered facts. A petitioner must explain

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       when he first learned of the facts underlying his PCRA claims and
       show that he brought his claim within sixty (60) days thereafter.

Williams, 35 A.3d at 53 (citations omitted).

       Here, Appellant has made no assertion that he filed the instant PCRA

petition presenting his newly-discovered fact claim within 60 days of when

the claim first could have been presented.          Rather, Appellant merely

indicates his son acquired his “criminal abstract” and forwarded it to

Appellant “during their letter writing relationship.”   Moreover, there is no

indication that the “facts” alluded to in Appellant’s argument (i.e., his son

receiving a copy of Appellant’s “criminal abstract,” which allegedly indicated

that Appellant had no prior criminal history as suggested by the prosecution

at trial) could not have been ascertained earlier with due diligence. 2

Accordingly, Appellant has not demonstrated the applicability of Section

9545(b)(1)(ii)’s timeliness exception.3

____________________________________________


2
  In light of the foregoing, we need not address whether Appellant’s son’s
receipt of a copy of Appellant’s “criminal abstract,” which allegedly proved
Appellant had no prior criminal history, constituted unknown “facts,” as
opposed to constituting a newly discovered or newly willing source for
previously known facts. Marshall, supra.
3
  In the PCRA court, Appellant suggested he was entitled to the after-
recognized constitutional right exception of Section 9545(b)(1)(iii) in light of
the U.S. Supreme Court’s opinion in McQuiggin v. Perkins, 133 S.Ct. 1924
(2013) (holding in federal habeas corpus proceedings strict compliance with
one year statute of limitations for the Anti-Terrorism and Effective Death
Penalty Act is not required if the petitioner advances a convincing claim of
actual innocence). PCRA Court Opinion, filed 6/23/15, 2-3. In its opinion,
the PCRA court discussed at length the reasons it rejected Appellant’s
(Footnote Continued Next Page)


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      Appellant next asserts that his sentence is illegal and, since such a

challenge is nonwaivable, the PCRA court erred in failing to address the

merits thereof.

      We agree with Appellant that claims of legality of sentence are

generally nonwaivable.         Commonwealth v. Brown, 71 A.3d 1009, 1010

(Pa.Super. 2013). However, the fact that such claims are not waived does

not mean that we have jurisdiction to review them. Waiver and jurisdiction

are separate matters. “Though not technically waivable, a legality [of

sentence] claim may nevertheless be lost should it be raised for the first

time in an untimely PCRA petition for which no time-bar exception applies,

thus depriving the court of jurisdiction over the claim.” Commonwealth v.

Slotcavage, 939 A.2d 901, 903 (Pa.Super. 2007) (citation omitted). Here,

Appellant’s fourth PCRA petition is untimely, and therefore, neither this

Court nor the lower court had jurisdiction over the petition.

      Finally, we note Appellant contends the PCRA court erred in dismissing

his PCRA petition without an evidentiary hearing.

      [T]he right to an evidentiary hearing on a post-conviction
      petition is not absolute. It is within the PCRA court's discretion
      to decline to hold a hearing if the petitioner's claim is patently
                       _______________________
(Footnote Continued)

argument in this regard. Specifically, the PCRA court found “McQuiggin did
not announce a new relevant constitutional [right] that has been made
retroactive by either our Supreme Court or the Supreme Court of the United
States.” PCRA Court Opinion, filed 6/23/15, at 2. In this appeal, Appellant
concedes McQuiggin does not satisfy the exception and, thus, we decline to
address the issue further. See Appellant’s Brief at 14.



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     frivolous and has no support either in the record or other
     evidence. It is the responsibility of the reviewing court on
     appeal to examine each issue raised in the PCRA petition in light
     of the record certified before it in order to determine if the PCRA
     court erred in its determination that there were no genuine
     issues of material fact in controversy and in denying relief
     without conducting an evidentiary hearing.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012) (citations and

quotations omitted).

     Since Appellant did not successfully invoke any of the exceptions

necessary to circumvent the timeliness requirement, the PCRA court did not

err in dismissing the instant PCRA petition without an evidentiary hearing.

See Commonwealth v. Garcia, 23 A.3d 1059, 1066 (Pa.Super. 2011)

(“[I]t is well settled that the right to an evidentiary hearing on a PCRA

petition is not absolute, and the PCRA court may decline to hold a hearing if

the petitioner’s claims are patently frivolous with no support in either the

record or other evidence.”) (citation omitted)).    Moreover, in light of our

conclusion that Appellant’s PCRA petition was untimely filed, we shall not

address Appellant’s remaining substantive claims.

     For all of the foregoing reasons, we affirm.

     Affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/22/2016




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