J-S09034-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LUIS D RODRIGUEZ                           :
                                               :
                       Appellant               :   No. 84 EDA 2019

            Appeal from the PCRA Order Entered December 17, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0802282-2006


BEFORE:      SHOGAN, J., LAZARUS, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                                FILED APRIL 06, 2020

        Appellant, Luis D Rodriguez, pro se, appeals from the order entered

December 17, 2018, that dismissed his second petition filed under the Post

Conviction Relief Act (“PCRA”)1 without a hearing. We affirm.

        The facts and procedural history underlying this appeal are as follows:

        Appellant and Nicholas Santiago were both involved romantically
        with Melissa Sanchez. On May 5, 2001, Mr. Santiago discovered
        Appellant in bed with Ms. Sanchez. Mr. Santiago threw Appellant
        down a flight of stairs, broke his nose, and gave him two black
        eyes. Appellant informed several individuals that he was going to
        “get” Mr. Santiago. He approached Marco Agosto, Michael Wood,
        and Shawn Beckham to assist him in murdering Mr. Santiago.[2]

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*   Retired Senior Judge assigned to the Superior Court.
1   42 Pa.C.S. §§ 9541–9546.
2“Just prior to . . . Santiago’s murder, Michael Wood chose not to participate.”
Trial Court Opinion, dated September 2, 2008, at 2 n.2 (citing N.T.,
7/19/2007, at 134).
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     On May 8, 2001, Mr. Agosto drove Appellant and Mr. Beckham to
     Mr. Santiago’s mother’s house, where they proceeded to shoot
     him to death. Appellant later boasted about shooting Mr. Santiago
     to several witnesses. In an altercation with another individual
     following the murder, Appellant threatened to shoot that person
     just as he did Mr. Santiago.

     A bench trial commenced July 19, 2007, and concluded July 26,
     2007. The trial court convicted Appellant of murder in the first
     degree, criminal conspiracy, firearms not to be carried without a
     license, and possessing instruments of crime.1           The court
     proceeded immediately to sentencing, and sentenced Appellant to
     a mandatory sentence of life imprisonment for first-degree
     murder, and concurrent terms of ten to twenty years’
     incarceration for conspiracy, three and one-half to seven years’
     incarceration for [firearms not to be carried without a license],
     [and] two and one-half to five years’ incarceration for [possessing
     instruments of crime].
        1 18 Pa.C.S. § 2502(c), § 903, § 6106, and § 907,
        respectively.

     Appellant timely filed post-sentence motions, asserting that his
     conviction for first-degree murder was against the weight of the
     evidence. The trial court denied this motion without a hearing.
     Appellant timely filed a notice of appeal pro se; this Court
     requested that the trial court conduct a Grazier2 hearing, and on
     October 3, 2007, the trial court appointed new counsel for
     Appellant. Appellant filed a court-ordered Pa.R.A.P. 1925(b)
     statement; the trial court issued a responsive opinion on
     September 2, 2008, and a supplemental opinion on December 4,
     2008.
        2   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

     On February 23, 2010, this Court affirmed Appellant’s judgment
     of sentence, and the Pennsylvania Supreme Court denied his
     subsequent petition for allowance of appeal on January 30, 2012.
     See Commonwealth v. Rodriguez, 996 A.2d 15 (Pa. Super.
     2010) (unpublished memorandum), appeal denied, 38 A.3d 824
     (Pa. 2012).

     On April 11, 2013, Appellant timely filed [his first] PCRA petition,
     contending that trial counsel was ineffective for failing to present



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       alibi testimony at trial,[3] for improperly advising him to waive his
       right to a jury trial, and for failing to object to the trial judge’s
       decision to limit the number of spectators during the trial. On
       August 16, 2014, appointed counsel filed an amended PCRA
       petition. On November 19, 2014, the Commonwealth filed a
       motion to dismiss.

       On June 2, 2015, the PCRA court conducted an evidentiary hearing
       with regard to the alibi claim only.     [PCRA Court Opinion,
       3/4/2016,] at 4-9. . . . On November 12, 2015, the PCRA court
       formally dismissed Appellant’s petition. . . . Appellant timely
       appealed and submitted a court-ordered Pa.R.A.P. 1925(b)
       statement. The PCRA court issued a responsive opinion.

Commonwealth           v.    Rodriguez,        No.   3528   EDA   2015,   unpublished

memorandum at 1-3, 5 (Pa. Super. filed November 14, 2016).                        On

November 14, 2016, this Court affirmed the denial of Appellant’s first PCRA

petition.   Id. at 1.       On November 22, 2016, Appellant filed a petition for

allowance of appeal with the Supreme Court of Pennsylvania, which was

denied on April 18, 2017.

       On June 22, 2017, Appellant, pro se, filed his second PCRA petition,

which he acknowledged was untimely but contended qualified for an exception

to the PCRA timeliness requirement pursuant to 42 Pa.C.S. § 9545(b)(1)(ii).4

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3  The proposed alibis were Appellant’s mother, Maria Domenech, and his
stepfather, Juan Alicea. Commonwealth v. Rodriguez, No. 3528 EDA 2015,
unpublished memorandum at 4 (Pa. Super. filed November 14, 2016). These
alleged alibi witnesses were thereby different than the alleged alibi witnesses
put forth in Appellant’s second PCRA petition, discussed in more detail below.
4      Any petition under [the PCRA], including a second or subsequent
       petition, shall be filed within one year of the date the judgment
       becomes final, unless the petition alleges and the petitioner
       proves that: . . .



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Specifically, Appellant’s PCRA petition alleged “[u]nknown facts in the form of

two (2) witnesses who have come forward to provide affidavits stating that

they witnessed [Appellant] at his window talking to a girl on the day and

around the time of the incident.” PCRA Petition, 6/22/2017, at 3. The PCRA

petition further asserted that the first witness, Yartiza Medina, was the

individual with whom Appellant was “having a conversation . . . while [he] was

at his window on May 8, 2001, between the hours of 11:45 [p]m[5] and . . .

12:30 am.” Id. at 6. The PCRA petition maintains that the second witness,

Marilyn Garcia, was Appellant’s neighbor and overheard the conversation. Id.

at 7.    The petition provides no information as to how or when Appellant

discovered these supposedly previously “unknown facts.” See generally id.

        On November 2, 2018, the PCRA court entered a notice of intent to

dismiss all claims without a hearing pursuant to Pa.R.Crim.P. 907, and, on

November 21, 2018, Appellant filed a response.6 On December 17, 2018, the

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           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[.]

42 Pa.C.S. § 9545(b)(1)(ii).
5 Although Appellant’s PCRA petition states “11:45 am[,]” PCRA Petition,
6/22/2017, at 6, we believe that “am” is a typographical error, because
Medina’s affidavit, which was attached to said petition, states that she “arrived
at [Appellant’s h]ouse . . . at about 11:45 PM[.]” Medina’s Affidavit of Truth,
4/24/2017, at 1, attached to PCRA Petition, 6/22/2017.
6   In the response, Appellant stated that he --




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PCRA court dismissed Appellant’s petition. On December 28, 2018, Appellant

filed this timely appeal.7

       Appellant presents the following issue for our review:

       Did the PCRA court err when it dismissed Appellant’s PCRA
       petition, when [Appellant] submitted affidavits which proved that
       petitioner was home, meeting the unknown facts exception to the
       one year time bar, pursuant to 42 Pa.C.S.A. § 9545(b)(1)(ii)[?]

Appellant’s Brief at 4 (unnecessary capitalization omitted).

       “We review the denial of PCRA relief to decide whether the PCRA court’s

factual determinations are supported by the record and are free of legal error.”

Commonwealth v. Medina, 209 A.3d 992, 996 (Pa. Super. 2019) (quoting

Commonwealth v. Lavar Brown, 196 A.3d 130, 150 (Pa. 2018)).

       The    timeliness     of   a   post-conviction   petition   is   jurisdictional.

Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008) (timeliness of a

PCRA    petition    is   a   jurisdictional    requirement);   Commonwealth         v.

Devon Brown, 943 A.2d 264, 267 (Pa. 2008) (citing Commonwealth v.



____________________________________________


       notified trial counsel months before trial of Ms. Medina and his
       conversation with her. Furthermore, on July 13, 2007, [Appellant]
       wrote a letter to trial counsel asking counsel if he had put his
       “P.I[.]” (private investigator) to look for and talk to “the female
       Yari that I told you I was talking to from my window at my mom’s
       house.”

Objections to the PCRA Court’s Notice of Intent to Dismiss, 11/21/2018, at 2.
7The PCRA court did not order and Appellant did not file a statement of errors
complained of on appeal, but the PCRA court entered its opinion on March 29,
2019.

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Robinson, 837 A.2d 1157, 1161 (Pa. 2003)) (it is “well settled that there is

no generalized equitable exception to the jurisdictional . . . time bar pertaining

to post-conviction petitions”); Commonwealth v. Hernandez, 79 A.3d 649,

651 (Pa. Super. 2013). Appellant concedes that his instant PCRA petition is

untimely but attempts to circumvent the time bar by asserting the timeliness

exception set forth in Section 9545(b)(1)(ii). PCRA Petition, 6/22/2017, at 3,

6; Appellant’s Brief at 9, 11-12, 15. However, Appellant misconstrues that

subsection.     “The timeliness exception set forth in Section 9545(b)(1)(ii)

requires a petitioner to demonstrate he did not know the facts upon which he

based his petition and could not have learned those facts earlier by the

exercise of due diligence.” Commonwealth v. Fennell, 180 A.3d 778, 782

(Pa. Super. 2018) (en banc) (citation omitted).       Appellant cannot logically

maintain that he did not know that Medina could serve as an alibi witness for

him, because he had to have known that he had a conversation with her at

the time of the murder.8            Additionally, his PCRA petition provided no

explanation as to why he could not have learned of either witness’s evidence

by the exercise of due diligence. Ergo, the timeliness exception set forth in


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8 Although this Court generally may not consider the content of a response to
a Rule 907 Notice, see Commonwealth v. Rykard, 55 A.3d 1177, 1189 (Pa.
Super. 2012), we still would like to note that Appellant’s assertion in his
response to the Rule 907 Notice that he “notified trial counsel months before
trial of Ms. Medina and his conversation with her” demonstrates that Appellant
knew about his conversation with Medina prior to trial and, hence, this fact
was not unknown to him prior to filing his present PCRA petition. Objections
to the PCRA Court’s Notice of Intent to Dismiss, 11/21/2018, at 2.

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Section 9545(b)(1)(ii) is unavailable to Appellant, and the PCRA court properly

concluded that it was without jurisdiction to review the merits of his claim.

      Having discerned no error of law, we affirm the order below.         See

Medina, 209 A.3d at 996.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2020




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