J-S19007-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
               v.                        :
                                         :
                                         :
 TITO REYES                              :
                                         :
                    Appellant            :   No. 1789 EDA 2019

             Appeal from the PCRA Order Entered May 24, 2019
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0204931-2005

BEFORE: BOWES, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                              FILED JULY 08, 2020

      Tito Reyes appeals pro se from the order that dismissed as untimely his

third petition filed pursuant to the Post Conviction Relief Act (“PCRA”). We

affirm.

      This Court summarized the facts underlying Appellant’s conviction as

follows:

            On March 13, 1997, Gloria Ramos (“Gloria”) was outside on
      the porch of her mother’s home in Philadelphia. Her two brothers,
      Appellant and Luis Ramos (“Luis”), accompanied by their brother-
      in-law, “Shorty,” approached Gloria. The men asked if she would
      come with them to knock on the door of a house where Madelassi
      Nunez lived. Apparently, Ms. Nunez was having an affair with the
      boyfriend of Johanna, who was the sister of Appellant, Luis, and
      Gloria.1

           ______
           1 Ms. Nunez was not a stranger to Gloria. Prior to the events
           that are the subject of this criminal case, Gloria, Johanna,
           and their sister Mimi, accosted Ms. Nunez at the restaurant
           where Ms. Nunez worked.
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            Appellant, Luis, Gloria, and Shorty drove to Ms. Nunez’[s]
     house, and Gloria knocked on the door. When Ms. Nunez
     answered the door, the three men, who were now wearing gloves
     and masks, forced their way past Ms. Nunez into the vestibule of
     the building. Ms. Nunez retreated into her apartment. The men
     knocked on Ms. Nunez’[s] apartment door, but she refused to
     open it. Undaunted, they broke the door down and entered
     forcibly. The intruders demanded drugs and money. A woman
     named Rosario Figueroa, who lived in the apartment with Ms.
     Nunez, was present during this home invasion.           The men
     demanded that Ms. Figueroa empty her pockets, and they took
     $40.00 from her. Gloria told Ms. Nunez to give the men money
     and drugs, but Ms. Nunez told them that she had no money or
     drugs. Gloria then struck Ms. Nunez repeatedly in the head with
     a crowbar and knocked her to the floor. While Ms. Nunez was on
     the floor, Gloria told Appellant to shoot Ms. Nunez. Appellant
     proceeded to stand over Ms. Nunez, and he then fired a shot into
     her chest. Ms. Nunez died as a result of her injuries.

            Over seven years later, Appellant, who was a fugitive, was
     arrested in Camden, New Jersey. He was returned to Philadelphia
     and charged with multiple crimes in connection with the killing of
     Ms. Nunez, and both he and his brother Luis, were scheduled to
     be tried jointly. Additionally, prior to the trial, Gloria entered into
     a plea bargain with the Commonwealth and agreed to testify
     against Appellant and Luis.

Commonwealth v. Reyes, 938 A.2d 1119 (Pa.Super. 2007) (unpublished

memorandum at 1-3).

     The PCRA court offered the ensuing procedural history of the case:

            On October 24, 2005, following a jury trial before this court,
     [Appellant] was convicted of murder of the first degree, two
     counts of robbery, burglary, criminal conspiracy, carrying a
     firearm without a license, and possessing instruments of crime
     (PIC). On December 9, 2005, [Appellant] was sentenced to the
     mandatory term of life imprisonment. On September 6, 2007,
     [the] Superior Court affirmed [Appellant’s] judgment of sentence
     and, on March 6, 2008, our Supreme Court denied [his] petition
     for allowance of appeal.




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            On March 25, 2008, [Appellant] filed a PCRA petition pro se.
      Counsel was appointed and, on December 5, 2008, filed an
      amended petition. On March 31, 2009, the Commonwealth filed
      a motion to dismiss. After reviewing the pleadings, on May 5,
      2009, this court sent [Appellant] notice of its intent to deny and
      dismiss his petition without a hearing pursuant to Pa.R.Crim.P.
      907 (907 Notice). Consistent with its 907 Notice, on June 12,
      2009, this court denied and dismissed [Appellant’s] PCRA petition.
      On June 22, 2010, [the] Superior Court affirmed this court’s denial
      of [the] petition. Our Supreme Court denied allocatur on October
      19, 2010.

            [Appellant’s] second PCRA petition was untimely, having
      been filed almost four years after [his] judgment of sentence
      became final. On August 15, 2014, this court sent [Appellant] a
      907 Notice. Having received no response from petitioner, this
      court dismissed [his] second PCRA petition as untimely on October
      31, 2015. [Appellant] did not appeal this dismissal.

             [Appellant] filed his third PCRA petition, untimely, on
      October 30, 2018[, stating an after-discovered-evidence claim].
      On March 1, 2019, the Commonwealth responded to [the]
      petition. On April 8, 2019, this court received from [Appellant] a
      motion to amend his PCRA petition, raising the additional issue of
      ineffective assistance of counsel for failure to communicate his
      plea agreement. Having reviewed the pleadings, this court has
      determined that [Appellant’s] claim fail[ed] to satisfy any of the
      exceptions to the timeliness requirements and, therefore, this
      court lack[ed] jurisdiction over [the] petition.

Pa.R.Crim.P. 907 Notice, 4/23/19, at 1-3 (footnotes and unnecessary

capitalization omitted).

      The PCRA court accordingly dismissed the petition without a hearing

after issuing the appropriate notice of its intent to do so. Appellant timely

filed a notice of appeal and complied with the PCRA court’s order to file a

concise statement of errors complained of on appeal. Appellant presents the

following question for this Court’s determination:


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      [Whether the] PCRA court erred in dismissing [Appellant’s] third
      PCRA [petition] as untimely where Appellant submitted [it] within
      (1) one year from [the] day [the newly-]discovered fact was
      discovered by Appellant that Commonwealth witness Gloria
      Ramos was institutionalized in mental hospital prior to testifying
      and that Gloria Ramos was “coerced” into testifying by
      investigators against Appellant?

Appellant’s brief at 1 (unnecessary capitalization omitted).

      We begin with the applicable legal principles. “Our standard of review

for issues arising from the denial of PCRA relief is well-settled.     We must

determine whether the PCRA court’s ruling is supported by the record and free

of legal error.”    Commonwealth v. Johnson, 179 A.3d 1153, 1156

(Pa.Super. 2018) (internal quotation marks omitted).        Further, “[i]t is an

appellant’s burden to persuade us that the PCRA court erred and that relief is

due.” Commonwealth v. Miner, 44 A.3d 684, 688 (Pa.Super. 2012).

      The first hurdle for a PCRA petitioner is establishing the timeliness of

the petition. For a petition to be timely under the PCRA, it must be filed within

one year of the date that the petitioner’s judgment of sentence became final.

42 Pa.C.S. § 9545(b)(1).       Appellant’s petition, filed a decade after his

judgment of sentence became final, is patently untimely.           Thus, unless

Appellant pled and proved one of the three exceptions to the PCRA time-bar

outlined in 42 Pa.C.S. § 9545(b)(1), we cannot address the claims he asserts

therein. See Commonwealth v. Pew, 189 A.3d 486, 488 (Pa.Super. 2018)

(“If the petition is untimely and the petitioner has not pled and proven an

exception, the petition must be dismissed without a hearing because


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Pennsylvania courts are without jurisdiction to consider the merits of the

petition.”).

       Appellant acknowledged the untimeliness of his petition, but pled that it

satisfied the newly-discovered facts exception codified at 42 Pa.C.S.

§ 9545(b)(1)(ii). See PCRA Petition, 10/30/18, at 3. Specifically, Appellant

alleged that until he finally obtained his trial transcripts in October 2018 after

“many, many attempts” at obtaining them through the court and counsel, he

did not know that Gloria Ramos, his sister, who                testified for the

Commonwealth and identified him at trial as one of the culprits, had previously

been institutionalized for mental illness and claimed that she was coerced into

assisting the prosecution.1 Id. He maintains that he does not understand

English, and required the assistance of an interpreter in learning the content

of the transcripts. Id.

       A petitioner relying upon the newly-discovered-fact exception must

establish that:     “(1) the facts upon which the claim was predicated were

unknown and (2) they could not have been ascertained by the exercise of due

diligence.” Commonwealth v. Cox, 146 A.3d 221, 227 (Pa. 2016) (citation

omitted).      While “[d]ue diligence requires neither perfect vigilance nor



____________________________________________


1 In a supplement to his PCRA petition, Appellant also claimed that he learned
for the first time through the same transcript that the Commonwealth had
offered a plea agreement of an open guilty plea to third-degree murder. See
Supplemental PCRA Petition, 4/4/19, at 7. Since Appellant does not pursue
that claim on appeal, we do not consider it.

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punctilious care,” it does require “reasonable efforts by a petitioner, based on

the particular circumstances, to uncover facts that may support a claim for

collateral relief.” Commonwealth v. Smith, 194 A.3d 126, 134 (Pa.Super.

2018) (internal quotation marks omitted).        To succeed in invoking this

exception, the petitioner must “plead and prove that the information on which

his claims are based could not have been obtained earlier despite the exercise

of due diligence.”   Commonwealth v. Edmiston, 65 A.3d 339, 346 (Pa.

2013).

      The PCRA court determined that Appellant’s claim that he did not

previously know the facts upon which he relies is belied by the record. In so

holding, the PCRA court focused upon the fact that the notes of testimony

from October 24, 2005 show that an interpreter was present when Appellant’s

mother and sister offered their post-trial testimony about Gloria.         See

Pa.R.Crim.P. 907 Notice, 4/23/19, at 5.

      Our review of the record confirms that Appellant’s counsel requested an

interpreter, and that she was present when Appellant’s mother and sister

shared information about Gloria’s mental health issues and about how she was

supposedly threated with removal of her daughter if she did not cooperate

with the authorities. See N.T. Trial, 10/24/05, at 4, 35-36, 43. However,

Appellant alleged that he was removed from the courtroom and placed in a

holding cell before his mother and sister testified.    See Response to 907

Notice, 5/9/19, at 3.     Nothing in the transcript contradicts Appellant’s


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representation.    As such, we cannot agree that there is no issue of fact

concerning whether Appellant was present and had the assistance of an

interpreter when the facts at issue were divulged on October 24, 2005.

        Nonetheless, it is clear from the record that Appellant failed to plead

facts that, if proven at a hearing, would show that he exercised due diligence

in discovering the information recorded in the October 24, 2005 transcript. In

his PCRA petition, Appellant stated that he had made diligent efforts to obtain

copies of his trial transcripts from the court and his prior counsel, but did not

obtain them until October 13, 2018. In support of this contention, Appellant

attached letters that he sent to his trial and prior PCRA counsel in 2018

requesting the trial transcripts.   See PCRA Petition, 10/30/18, at Exhibit A.

Appellant also referenced evidence that in 2013, 2015, and 2018, he filed

requests with the court for the trial transcripts.

        Hence, Appellant has offered an explanation why he did not know that

his mother and sister offered testimony on the record about Gloria’s mental

health commitments and the circumstances leading to her cooperation with

the prosecution. However, we need not decide whether his sporadic efforts

over the years to obtain the transcripts rise to the level of due diligence,

because it is not the fact that his family came forward with this information

on the record in 2005 upon which Appellant relies as his newly-discovered

fact.   Rather, it is the content of their testimony—Gloria’s mental health

history and the pressure allegedly placed upon her to cooperate—that


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Appellant cites in invoking the timeliness exception. Appellant has offered

no reason why he could not have earlier discovered these facts about his own

sister, be it from her directly, through their shared mother and sister, or from

some other source.

      Accordingly, Appellant failed to overcome the PCRA’s time bar by

establishing that the facts upon which his claim is based could not have been

ascertained earlier by the exercise of due diligence. See Cox, supra at 227.

Therefore, the PCRA court properly dismissed his petition as untimely filed.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/8/2020




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