J-S70013-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOSE RODRIGUEZ ZAVALA,

                            Appellant                No. 1265 EDA 2015


                   Appeal from the PCRA Order April 14, 2015
                in the Court of Common Pleas of Chester County
               Criminal Division at No.: CP-15-CR-0004395-2006


BEFORE: DONOHUE, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED DECEMBER 01, 2015

        Appellant, Jose Rodriguez Zavala, appeals pro se from the order

dismissing his second petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

        The PCRA court aptly summarized the factual and procedural history of

this case as follows:

              On September 28, 2007 . . . a jury found Appellant guilty
        of rape, involuntary deviate sexual intercourse, aggravated
        indecent assault, sexual assault, simple assault, recklessly
        endangering another person, aggravated assault and aggravated
        assault of an unborn child. All charges were the result of
        Appellant’s violent attacks on his girlfriend; the last attack
        occurring when she was pregnant with their child. On January
        11, 2008, he was sentenced to a term of imprisonment of
        seventeen to [forty] years. Appellant appealed, raising the claim
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     that the guilty verdict for the crime of rape was against the
     weight of the evidence, since his girlfriend had recanted her prior
     statements to the police, and testified at his trial that the sex
     between them had been consensual.             The Superior Court
     disagreed, noting that the jury was free to believe the victim’s
     earlier statements to the police regarding the rape, and affirmed
     his judgment of sentence on July 31, 2009. The Pennsylvania
     Supreme Court denied his petition for allowance of appeal on
     May 5, 2010.

             On May 26, 2010, Appellant filed his first petition under
     the [PCRA].      In it he claimed that his trial counsel was
     ineffective, and that he was “actually innocent” of raping his
     girlfriend, since his girlfriend had admitted that the report she
     gave to the police was not truthful, and that there was no rape
     committed.      The PCRA court found that Appellant’s claims
     entitled him to no post-conviction relief, and dismissed his PCRA
     petition on October 11, 2010. Appellant appealed, and on June
     17, 2011, the Superior Court affirmed the dismissal of
     Appellant’s PCRA, specifically noting in its memorandum that the
     jury in Appellant’s trial had been “fully apprised of the victim’s
     recantation”     prior     to   reaching     its  guilty   verdict.
     (Commonwealth v. Rodriguez Zavala, No. 2942 EDA 2010 at
     *5 (unpublished memorandum) (filed June 17, 2011)). The
     Pennsylvania Supreme Court denied Appellant’s petition for
     allowance of appeal on December 6, 2011.

(PCRA Court Opinion, 6/15/15, at 1-2) (record citation formatting provided).

     On June 6, 2013, Appellant, acting pro se, filed the instant second

PCRA petition, captioning it as a petition seeking habeas corpus relief and/or

PCRA relief. In it, he again raised the claim that he was actually innocent

because the victim had recanted and testified at trial that the sex between

them was consensual. On July 15, 2013, the PCRA court entered notice of

its intention to dismiss the petition without a hearing.    See Pa.R.Crim.P.

907(1).   Appellant filed a response, and on August 28, 2014, the court

entered an order directing him to file a certification of the additional


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evidence he intended to offer at a hearing.         See Pa.R.Crim.P. 902(A)(15).

On September 23, 2014, Appellant filed a certification providing the names

and the testimony of the witnesses he intended to offer: the victim, who

would testify that Appellant did not rape her; Appellant, who would testify

that he did not rape her; and Appellant’s sister, who would testify that

Appellant and the victim lived together as common law husband and wife.

On February 2, 2015, the PCRA court again issued notice of its intent to

dismiss the petition without a hearing.          See Pa.R.Crim.P. 907(1).   After

Appellant filed a response, the court entered its order dismissing the petition

as untimely on April 14, 2015. This timely appeal followed.1

       Appellant raises the following issues for our review:

       [1.] Did the [PCRA] court abuse it’s [sic] discretion by denying
       the Appellant’s [PCRA] petition because the [PCRA] court ruled
       that it lacked jurisdiction to hear the case?

       [2.] [Whether] the [PCRA] court [erred] and abused it’s [sic]
       discretion when [it] ordered an evidentiary hearing, (by
       12/12/13 order), and then a new judge took over the case and
       ignored the order of the previous judge, handling the case[?]

       [3.] [Whether] the [PCRA] court [erred] and abused it’s [sic]
       discretion when it converted the state habeas corpus petition to
       a PCRA petition even though the state habeas raised an 8th
       amendment claim of cruel and unusual punishment[?]

       [4.] [Whether] the [PCRA] court [erred] and abuse[d] it’s [sic]
       discretion when it made a ruling that it lacked jurisdiction to
____________________________________________


1
  Although the PCRA court did not order Appellant to file a concise statement
of errors complained of on appeal, he filed a concise statement on May 14,
2015. The court filed an opinion on June 15, 2015. See Pa.R.A.P. 1925.



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     hear the petition commenced by the Appellant stating that the
     new evidence did not qualify as an exception to the time
     limitation bar[,] specifically § 9545(b)(1)(ii)[?]

(Appellant’s Brief, at 1) (unnecessary capitalization, commentary, and

parenthesis omitted).

           We begin by noting our well-settled standard of review. In
     reviewing the denial of PCRA relief, we examine whether the
     PCRA court’s determination is supported by the record and free
     of legal error. The scope of review is limited to the findings of
     the PCRA court and the evidence of record, viewed in the light
     most favorable to the prevailing party at the trial level. It is
     well-settled that a PCRA court’s credibility determinations are
     binding upon an appellate court so long as they are supported by
     the record. However, this Court reviews the PCRA court’s legal
     conclusions de novo.

            We also note that a PCRA petitioner is not automatically
     entitled to an evidentiary hearing. We review the PCRA court’s
     decision dismissing a petition without a hearing for an abuse of
     discretion.

                 [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 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. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations

and quotation marks omitted).

     “Before we may address the merits of Appellant’s arguments we must

first consider the timeliness of Appellant’s PCRA petition because it


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implicates the jurisdiction of this Court and the PCRA court.”     Id. (citation

omitted).

      A PCRA petition, including a second or subsequent one, must be
      filed within one year of the date the petitioner’s judgment of
      sentence became final, unless he pleads and proves one of the
      three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
      judgment becomes final at the conclusion of direct review by
      [the Pennsylvania Supreme] Court or the United States Supreme
      Court, or at the expiration of the time for seeking such review.
      42    Pa.C.S.[A.]   §    9545(b)(3).    The    PCRA’s     timeliness
      requirements are jurisdictional; therefore, a court may not
      address the merits of the issues raised if the petition was not
      timely filed. The timeliness requirements apply to all PCRA
      petitions, regardless of the nature of the individual claims raised
      therein. The PCRA squarely places upon the petitioner the
      burden of proving an untimely petition fits within one of the
      three exceptions. . . .

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations

and footnote omitted).

      In this case, Appellant’s judgment of sentence became final on August

3, 2010, when his time to file a petition for writ of certiorari with the United

States Supreme Court expired.      See U.S. Sup. Ct. R. 13; 42 Pa.C.S.A. §

9545(b)(3). Therefore, he had one year from that date to file a petition for

collateral relief, specifically, until August 3, 2011.    See 42 Pa.C.S.A. §

9545(b)(1). Because Appellant filed the instant petition on June 6, 2013, it

is untimely on its face, and the PCRA court lacked jurisdiction to review it

unless he pleaded and proved one of the statutory exceptions to the time-

bar. See id. at § 9545(b)(1)(i)-(iii).




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     Section 9545 of the PCRA provides only three limited exceptions that

allow for review of an untimely PCRA petition:

     (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.

Id. “If the [PCRA] petition is determined to be untimely, and no exception

has been pled and proven, the petition must be dismissed without a hearing

because Pennsylvania courts are without jurisdiction to consider the merits

of the petition.”   Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa.

Super. 2011), appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted). In

addition, a PCRA petition invoking one of these statutory exceptions must

“be filed within 60 days of the date the claim could have been presented.”

42 Pa.C.S.A. § 9545(b)(2).

     Here, Appellant claims the benefit of the after-discovered facts

exception   to   the   PCRA’s   timeliness   requirement   based   on    “new

information/new evidence” that the victim will testify that Appellant did not

rape her. (Appellant’s Brief, at 4; see id. at 5); see also 42 Pa.C.S.A. §

9545(b)(1)(ii). Appellant contends that since the victim recanted her initial


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report to police that he raped her, and has admitted that she was never

raped, he is entitled to an evidentiary hearing on this issue.              (See

Appellant’s Brief, at 10-11). We disagree.

       The after-discovered facts exception requires the facts upon which the

claim is predicated “were not previously known to the petitioner and could

not have been ascertained through due diligence.”           Commonwealth v.

Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008), cert. denied, 555 U.S. 916

(2008) (citation omitted). The PCRA creates a three-part test for the after-

discovered facts exception: “1) the discovery of an unknown fact; 2) the fact

could not have been learned by the exercise of due diligence; and 3) the

petition for relief was filed within 60 days of the date that the claim could

have been presented.” Commonwealth v. Smith, 35 A.3d 766, 771 (Pa.

Super. 2011), appeal denied, 53 A.3d 757 (Pa. 2012) (emphasis omitted).

      Here, although Appellant claims that the victim’s testimony that he did

not rape her is “new evidence,” (Appellant’s Brief, at 2, 4), a review of the

record belies this claim. Specifically, at Appellant’s trial, the victim testified

that Appellant never raped her and that the sexual acts between them were

consensual.   (See N.T. Trial, 9/26/07, at 206, 210).       Appellant raised the

issue of the victim’s recantation of her rape allegation on direct appeal and

in his first PCRA petition. (See PCRA Ct. Op., at 2). Therefore, the record

plainly shows that Appellant was well-aware of the victim’s testimony

denying the rape during his trial in 2007. Thus, Appellant’s claim that the

victim’s testimony in this regard is “new evidence” is meritless.

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       In sum, we conclude that Appellant has not met his burden of proving

his untimely petition fits within one of the three exceptions to the PCRA’s

time-bar. See Jones, supra at 17. Since he presented no genuine issue of

material fact concerning the timeliness of his petition, the PCRA court

properly dismissed it without a hearing based on its determination that it

was untimely with no exception to the time-bar pleaded or proven.        See

Miller, supra at 992.

       Because Appellant’s PCRA petition is untimely, we are not permitted to

address his remaining issues on appeal. See id. Accordingly, we affirm the

order of the PCRA court.2

       Order affirmed.




____________________________________________


2
  We decline Appellant’s apparent invitation to construe his claim as falling
outside the statutory framework of the PCRA. (See Appellant’s Brief, at 6,
11). The PCRA “provides for an action by which persons convicted of crimes
they did not commit . . . may obtain collateral relief.” 42 Pa.C.S.A. § 9542.
“[The PCRA is] the sole means of obtaining collateral relief and encompasses
all other common law and statutory remedies for the same purpose that
exist . . . including habeas corpus and coram nobis.” Id. Moreover, our
Supreme Court has “held that the scope of the PCRA eligibility requirements
should not be narrowly confined to its specifically enumerated areas of
review.” Commonwealth v. Hackett, 956 A.2d 978, 986 (Pa. 2008), cert.
denied, 556 U.S. 1285 (2009) (citation omitted) (determining claim
essentially attacking underlying conviction falls within the ambit of the
PCRA).




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/1/2015




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