J-S64003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

FRANCISCO MOJICA

                            Appellant                         No. 453 EDA 2016


             Appeal from the PCRA Order entered January 22, 2016
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0744031-1991


BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                           FILED DECEMBER 13, 2016

        Appellant, Francisco Mojica, appeals pro se from the January 22, 2016

order entered in the Court of Common Pleas of Philadelphia County, denying

his petition for collateral relief filed pursuant to the Post Conviction Relief

Act, 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

        We    summarized       the     underlying   factual     background   in   our

memorandum issued in connection with Appellant’s direct appeal.              Briefly,

Appellant and his accomplice, Tomas Vasquez (Appellant’s brother), while in

the process of burglarizing a residence to steal weapons, were discovered by

the victim.     An exchange of gunfire took place, killing the victim and

wounding Appellant and his accomplice. Following a bench trial, Appellant
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*
    Former Justice specially assigned to the Superior Court.
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was convicted of second degree murder, criminal conspiracy, burglary, and

robbery. On direct appeal, we affirmed Appellant’s judgments of sentence

for second degree murder, criminal conspiracy, and burglary, but vacated

the sentence on the robbery conviction because the sentence on the robbery

conviction should have merged with the sentence on the conviction of

murder in the second degree.              See Commonwealth v. Mojica, 1960

Philadelphia 1996 (Pa. Super. filed January 29, 1998).       The Supreme Court

denied allocatur on November 5, 1998.            See Commonwealth v. Mojica,

711 A.2d 1041 (Pa. 1998).

       On December 7, 1999, Appellant filed his first PCRA petition, which the

PCRA court dismissed on January 25, 2002.1              This Court affirmed the

dismissal on October 16, 2003. See Commonwealth v. Mojica, 1062 EDA

2002 (Pa. Super. filed October 16, 2003). On July 8, 2015, Appellant filed

the instant petition, which the PCRA court dismissed on January 22, 2016, as

untimely. This appeal followed.




____________________________________________


1
  “[Appellant] filed a previous PCRA [petition], which resulted in restoration
of his appellate rights to appeal his judgment of sentence. For the purposes
of the PCRA, this petition constitutes [Appellant]’s first PCRA petition.” PCRA
Court Memorandum Order and Opinion, 1/22/16, at 1 n.1.




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       On appeal, Appellant essentially raises two issues: (i) the PCRA court

erred in finding that his PCRA petition was untimely and (ii) the PCRA court

erred in not holding a hearing on his PCRA petition.2

       In connection with his first claim, Appellant openly acknowledges that

his PCRA petition is facially untimely. However, he argues that he pleaded

and proved he met the “newly discovered” fact exception to the PCRA time

bar. See 42 Pa.C.S.A. § 9545(b)(1)(ii).3 We disagree.

       “[A]n appellate court reviews the PCRA court’s findings of fact to

determine whether they are supported by the record, and reviews its

conclusions of law to determine whether they are free from legal error.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).                  All PCRA

petitions, “including a second or subsequent petition, shall be filed within

one year of the date the judgment becomes final” unless an exception to

timeliness applies.        42 Pa.C.S.A. § 9545(b)(1).       “The PCRA’s time

restrictions are jurisdictional in nature.       Thus, [i]f a PCRA petition is

untimely, neither this Court nor the [PCRA] court has jurisdiction over the

petition. Without jurisdiction, we simply do not have the legal authority to
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2
  In his Pa.R.A.P. 1925(b) statement Appellant also alleged ineffective
assistance of counsel. Appellant, however, did not renew his challenge
before us. Accordingly, we conclude Appellant abandoned this challenge,
and we will not address it in this memorandum.
3
   “[T]he facts upon which the claim is predicated were unknown to the
petitioner and could not have been ascertained by the exercise of due
diligence[.]” 42 Pa.C.S.A. § 9545(b)(1)(ii).



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address the substantive claims.”          Commonwealth v. Chester, 895 A.2d

520, 522 (Pa. 2006) (first alteration in original) (internal citations and

quotation marks omitted).          As timeliness is separate and distinct from the

merits of Appellant’s underlying claims, we first determine whether this

PCRA petition is timely filed.        See Commonwealth v. Stokes, 959 A.2d

306, 310 (Pa. 2008).

        Appellant argues that the new fact discovered is a statement from his

brother, Tomas Vasquez,4 who, approximately twenty years after Appellant’s

judgment      became      final,    exonerates   Appellant   from   any   criminal

responsibility for the underlying crimes. Appellant is not entitled to relief.

        The mere identification of a “new fact” is not in itself sufficient to meet

the alleged “newly discovered” exception.          Indeed, before Appellant may

avail himself of this exception, he must first establish that the facts upon

which the claim is predicated were unknown and that he could not have

ascertained those facts by the exercise of due diligence. Commonwealth

v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (internal citations and

quotations omitted).

        In the present case, Appellant asserts that the new “facts,” as

conveniently revisited by his brother in the affidavit,5 were unknown to him.
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4
  Tomas Vasquez was tried separately and convicted of third degree murder
for his role in the crimes committed with Appellant.
5
    The PCRA court also properly noted:
(Footnote Continued Next Page)


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Regardless of credibility issues, which we do not assess here, Appellant fails

to indicate what efforts, if any, he undertook to ascertain the supposedly

unknown facts. Indeed, his brief is devoid of any statement to that effect.

The PCRA court also noted

      Since [Appellant] and Mr. Vasquez agree that they were together
      at the time of the incident in 1991, [Appellant] was fully aware
      of Mr. Vasquez’s existence at the time of the incident.
      [Appellant] has not demonstrated what steps he took, if any, in
      the last 24 years to contact Mr. Vasquez and obtain his
      testimony.    In fact, [Appellant] admits that Mr. Vasquez
      recanted his statement after [Appellant]’s trial but before Mr.
      Vasquez went on trial for these same charges two years later.
      Therefore, [Appellant] should have raised this issue at that time,
      and pursued his claim in a timely fashion.

PCRA Court Memorandum Order and Opinion, 1/22/16, at 4 (citation and

footnote omitted).

      A review of record, therefore, shows that Appellant failed to explain

what steps he took to pursue this matter. Accordingly, Appellant failed to


                       _______________________
(Footnote Continued)

      Upon review of [Mr.] Vasquez’s affidavit, it is unclear what part
      of his testimony is being used to invoke the after discovered fact
      evidence. Mr. Vasquez’s testimony essentially aligns with the
      testimony at trial.     Most of his statement addresses the
      unfairness in the discrepancy in their sentences where
      [Appellant] was convicted of second degree murder and Mr.
      Vasquez, the shooter, was convicted of third degree murder.
      However, Mr. Vasquez’s complaints and grievances do not
      amount to an after-discovered fact that invokes this exception.

PCRA Court Memorandum Order and Opinion, 1/22/16, at 4 n.5 (citation
omitted).




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prove that he met the requirements for the newly discovered fact exception.

Cf. Bennett, 930 A.2d at 1272; see also Commonwealth v. Williams, 35

A.3d 44, 53 (Pa. Super. 2011) (“Due diligence demands that the petitioner

take reasonable steps to protect his own interests.”). Thus, we conclude that

we have no jurisdiction to entertain Appellant’s PCRA petition, and that the

PCRA court did not err in dismissing the instant PCRA petition as untimely.

      Regarding the second claim of error (i.e., PCRA court failed to hold a

hearing on Appellant’s PCRA petition), the PCRA court did not err in

dismissing the petition without a hearing.        See Commonwealth v.

Marshall, 947 A.2d 714, 723 (Pa. 2008) (“As explained supra, we have

concluded that [a]ppellant’s petition was untimely, and accordingly the PCRA

court properly determined that it had no jurisdiction to entertain it.    We

therefore also must conclude that the PCRA court did not err in dismissing

[a]ppellant’s petition without a hearing.”).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/2016




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