J-S03016-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ALBERTO PAGAN

                            Appellant                  No. 821 EDA 2015


                 Appeal from the PCRA Order February 17, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0105501-1998


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                                   FILED MAY 03, 2016

       Alberto Pagan appeals pro se from the order entered on February 17,

2015, in the Court of Common Pleas of Philadelphia County, that denied his

third petition for post-conviction collateral relief.1, 2 Pagan seeks relief from
____________________________________________


1
 See Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541–
9546.
2
 We note that the PCRA court dismissed the PCRA petition on February 17,
2015, and, therefore, the notice of appeal had to be filed by Thursday,
March 19, 2015. See Pa.R.A.P. 903(a) (notice of appeal shall be filed within
30 days after the entry of the order from which the appeal was taken).
Pagan dated his pro se notice of appeal March 15, 2015, but the notice of
appeal was not filed until March 23, 2015.

      Although the prisoner mailbox rule provides that a filing from an
incarcerated pro se party is measured from the date the prisoner places it in
the institution’s mailbox, see Commonwealth v. Jones, 700 A.2d 423 (Pa.
1997), the record contains no proof of the date of mailing. We recognize our
prerogative to remand for a hearing to determine Pagan’s compliance with
(Footnote Continued Next Page)
J-S03016-15



the judgment of sentence of 22 to 44 years’ imprisonment imposed on April

16, 1999, after the trial judge convicted him of one count of attempted

murder, three counts each of aggravated assault and recklessly endangering

another person, as well as firearms charges and possession of an instrument

of crime.3 After a thorough review of the record, the parties’ briefs, and the

applicable law, we affirm.

        The PCRA court aptly summarized the facts and procedural history in

its opinion, and we adopt its recitation. See PCRA Court Opinion, 4/9/2015,

at 1–2. Pagan argues the PCRA court erred when it (1) “dismissed [Pagan’s]

PCRA petition without conducting any evidentiary findings based upon the

newly discovered evidence of innocence that was presented to the court in

the exercise of due diligence,” (2) “improperly recognized [Pagan’s] motion

for discovery as a Writ of Habeas Corpus, and used this as a basis for [its]

unlawful dismissal of a PCRA petition that was properly filed and invoked an

exception to the time-bar,” and (3) “failed to recognize [Pagan] is currently

serving an illegal sentence, due to[] the construction of the current

sentence, and the PCRA court ha[s] jurisdiction to correct the sentence due

                       _______________________
(Footnote Continued)

the prisoner mailbox rule.     See Smith v. Pennsylvania Board of
Probation and Parole, 683 A.2d 278, 282–283 (Pa. 1996). However,
given our disposition of the merits, we decline to remand as it “would be
futile to do so.” See Commonwealth v. Chambers, 35 A.3d 34, 40 (Pa.
Super. 2011).
3
    18 Pa.C.S. §§ 2502, 2702, 2705, 6105 and 6108, and 907, respectively.



                                            -2-
J-S03016-15



to the properly presented newly discovered evidence exception to the time-

bar requirement.” Pagan’s Brief at 17–18.

        The PCRA court has provided a well-reasoned discussion in support of

its decision.    See PCRA Court Opinion, 4/9/2015, at 4–5 (finding:           (1)

Pagan’s PCRA        petition   is facially untimely;   (2) Pagan’s reliance   on

McQuiggin v. Perkins, 133 S. Ct. 1924 (2013), is misplaced, as that

decision pertained to timeliness requirements for federal habeas corpus

petitions, not PCRA petitions; (3) Pagan failed to satisfy the after-discovered

evidence exception based upon a “heterogeneous collection of alleged

exculpatory statements from alibi witnesses”4 where Pagan admitted his past

familiarity with the statements, asserting he presented them in a prior

untimely PCRA petition; and (4) Pagan’s petition for writ of habeas corpus,

challenging the legality of his sentence due to a lack of a sentencing order,

was properly denied because there is no merit to his claim5). As we agree

with the sound reasoning of the PCRA court, we adopt its rationale as our

own.

        We simply add that, to the extent that Pagan raises for the first time in

his brief “newly discovered evidence, the February 26, 2014, statement of


____________________________________________


4
    PCRA Court Opinion, 4/9/2015, at 5.
5
  Id. at 5, citing Joseph v. Glunt, 96 A.3d 365 (Pa. Super. 2014) (holding
that the fact that the Department of Corrections did not possess sentencing
order did not entitle appellant to habeas relief).



                                           -3-
J-S03016-15



Maria Carabello,” we find this claim has been waived for failure to plead the

exception in his April 3, 2014 PCRA petition. 6    See Commonwealth v.

Burton, 936 A.2d 521, 525 (Pa. Super. 2007) (stating “exceptions to the

time bar must be pled in the PCRA petition, and may not be raised for the

first time on appeal”).

       To the extent Pagan presents an illegal sentencing claim based on his

contention that merger applied to his sentences for attempted homicide and

two counts of aggravated assault because he was convicted of one criminal

act upon three individuals, this claim cannot be reviewed since, as discussed

above, Pagan has not satisfied any exception to the PCRA’s timeliness

requirement.      See Commonwealth v. Miller, 102 A.3d 988, 995 (Pa.
____________________________________________


6
   Pagan attached to his brief a copy of a hand-printed statement, bearing a
signature of “Maria Caraballo” and date of “February 26, 2014.” See
Pagan’s Brief, Exhibit “A.” Therein, Caraballo stated she was not notified of
the day of Pagan’s trial and asserted Pagan “was not supposed to be in jail
[be]cause [Pagan] was with me all night ….” Id.

       Pagan states that Caraballo provided the statement to him following a
Valentine’s Day card she sent “on or about February 14, 2014,” in which she
“included information that she wished the court’s administrator had done as
he promised and notified her of the day of trial … so she could appear and
testify that [Pagan] was with her at the time of the criminal incident.”
Pagan’s Brief at 14–16, 19, 27–29.

       It bears mention that Maria Carballa was listed as one of four alibi
witnesses for Pagan’s trial. See N.T., 1/22/1999, at 258. In this Court’s
decision regarding Pagan’s appeal from the denial of relief on his first PCRA
petition, this Court rejected Pagan’s claim that the Commonwealth withheld
a police interview of Caraballa in violation of Brady v. Maryland, 373 U.S.
82 (1963). See Commonwealth v. Pagan, 911 A.2d 185 (Pa. Super.
2006) (filed September 11, 2006) (unpublished memorandum).



                                           -4-
J-S03016-15



Super. 2014) (“As this Court recently noted, [t]hough not technically

waivable, a legality [of sentence] claim may nevertheless be lost should it be

raised … in an untimely PCRA petition for which no time-bar exception

applies, thus depriving the court of jurisdiction over the claim.”) (citation

and quotation marks omitted).

      In addition, the discretionary aspects of sentencing claim Pagan raises

in his brief is not cognizable in PCRA proceedings.      Commonwealth v.

Wrecks, 934 A.2d 1287, 1289 (Pa. Super. 2007).

      Because no exception to the PCRA time-bar applies, Pagan’s PCRA

petition is untimely. As such neither this Court nor the PCRA court has

jurisdiction over Pagan’s third petition. Accordingly, we affirm the PCRA

court’s denial of relief.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2016




                                    -5-
                                  IN THE COURT OF COMMON PLEAS
                             FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                      CRIMINAL COURT DIVISION



     COMMONWEALTH
                                                               CP-51-CR-0I05501-1998

              _VS.       _

                                                               821 EDA 2015
     ALBERTO PAGAN,
                             Petitioner                                            CP-51-CR-0105501-1998comm. v. Pagan, Nberto
                                                                                              Memorandum Opinion


                                                    OPINION
                                                                                        lllll 1111111111111111111
    MINEHART,J                                                                                  7280018861

            The above-named Petitioner has appealed from an order dismissing the Post-Conviction

    Relief Act ("PCRA")/ habeas corpus petitions he filed in 2014. Said order should be affirmed

    for the reasons set forth below. 1

                                              PROCEDURAL HISTORY

            On January 20, 1999, following a non-jury trial, Petitioner was convicted of attempted

    murder, aggravated assault on a police officer, recklessly endangering another person, carrying a

    firearm without a license, carrying a firearm on public streets or public property, and possessing

    an instrument of crime. On April 6, 1999, Petitioner was sentenced to an aggregate term of

    twenty-two to forty-four years' imprisonment.       On October 4, 2000, the Superior Court affirmed

    Petitioner's judgment of sentence. Commonwealth v. Pagan, 767 A.2d 1112 (Pa. Super.

2000)(unpublished memorandum).            Petitioner did not file a petition for allowance of appeal in

the Pennsylvania Supreme Court following the affirmance of the judgment of sentence.




I
 The Order was issued more than twenty days after Petitioner was served with notice of the forthcoming dismissal
of his Post Conviction Relief Act petition. Pa.R.Crim.P. 907.

                                                         1
            Petitioner   filed a prose PCRA petition on October 12, 200 I. On appeal, the Superior

    Court vacated and remanded the case after the lower court prematurely dismissed Petitioner's

    petition. Commonwealth v. Pagan, 830 A.2d 1051 (Pa. Super. 2003) (unpublished

    memorandum). On April 14, 2005, the PCRA court dismissed Petitioner's PCRA petition. The

    Superior Court affirmed the dismissal of Petitioner's petition on September 11, 2006. The

    Pennsylvania Supreme Court denied Petitioner's petition for allowance of appeal on February 8,

    2007.

            On March 8, 2011, Petitioner filed his second PCRA petition, pro se. On January 6,

    2012, the PCRA court dismissed Petitioner's petition as untimely. The Superior Court affirmed

    the dismissal of Petitioner's petition on September 26, 2012.

            On April 3, 20 I 4, Petitioner filed the current pro se PCRA petition. On June 6, 2014,

    Petitioner submitted a supplemental petition styled Writ of Habeas Corpus. Pursuant to

    Pennsylvania Rule of Criminal Procedure 907, the Petitioner was served with notice of the

court's intention to dismiss his PCRA petition and deny his Writ of Habeas Corpus on

September 3, 2014. Petitioner filed a response to the court's Rule 907 notice on September 29,

2014. The lower court dismissed Petitioner's petition as untimely on February 17, 2015.

Appellant filed the instant,pro se notice of appeal to the Superior Court on March 23, 2015.2




2
  Preliminarily, although Petitioner's notice of appeal was docketed March 23, 2015, it is unclear what
day Petitioner mailed his notice of appeal to determine the filing date for purposes of the "mailbox rule."
Pursuant to Pa.R.A.P. 903(a), "except as otherwise prescribed by this rule, the notice of appeal required
by Rule 902 (manner of taking appeal) shall be filed within 30 days after the entry of the order from
which the appeal is taken." Petitioner appeals pro se from the order denying as untimely his serial
petition for relief filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546.
The order dismissing Petitioner's petition was entered on February l 7, 2015. Thus, the thirty-day
window for appeal ended on March 19, 2015. The following opinion presumes timeliness.


                                                    2
                                          DISCUSSION

         The lower court properly dismissed Petitioner's PCRA petition as untimely and denied

 his request for habeas corpus relief. Regarding the former, Petitioner's present PCRA petition

 was untimely filed and none of the exceptions to the time-bar are applicable.        As a prefatory

 matter, the timeliness of a PCRA petition is a jurisdictional         requisite. Commonwealth v.

 Robinson, 12 A.3d 4 77 (Pa. Super. 2011 ). 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)(l).    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 time for seeking the 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)(l). To invoke an exception, a petition must allege and the petitioner must prove:

        (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.

42 Pa.C.S.A. § 9545(b)(l)(i)-(iii).   Additionally, a PCRA petitioner must present his claimed

exception within sixty days of the date the claim first could have been presented. 42 Pa.C.S.A. §

9545(b)(2). "As such, when a PCRA petition is not filed within one year of the expiration of

direct review, or not eligible for one of the three limited exceptions, or entitled to one of the

exceptions, but not filed within 60 days of the date that the claim could have been first brought,


                                                 3
     the PCRA court has no power to address the substantive merits of a petitioner's PCRA claims."

     Commonwealth v. Gamboa-Taylor,        753 A.2d 780, 783 (2000).

            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. Bennett, 930 A.2d

     1264, 1271 (2007). Due diligence demands that the petitioner take reasonable steps to protect

    his own interests. Commonwealth v. Carr, 768 A.2d 1164, 1168 (Pa. Super. 200 I). A petitioner

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

    diligence. Commonwealth v. Breakiron, 781 A.2d 94, 98 (2001 ). The focus of this exception "is

    on the newly discovered facts, not on a newly discovered or newly willing source for previously

    known facts." Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008). Thus, the "new facts"

    exception at Section 9545(b )( 1 )(ii) does not require any merits analysis of an underlying after-

    discovered-evidence   claim. Commonwealth v. Brown, 2015 PA Super 24 (Feb. 6, 2015)( citing

    Commonwealth. v. Bennett, 930 A.2d 1264, 1271 (Pa. 2007)).

           Petitioner's judgment of sentence became final on November 3, 2000, thirty days after

    the Superior Court affirmed his judgment of sentence.      His current petition, filed on April 3,

2014 is therefore facially untimely as it was not filed within one year of the date his judgment of

sentence became final. In attempt to satisfy the PCRA 's timeliness exception, Petitioner cited

the United States Supreme Court's decision in McQuiggin v. Perkins, 133 S.Ct. 1924 (2013).

There, the Court addressed whether the AEDP A's statute of limitations can be overcome by a

showing of actual innocence. Id. at 1930.3 Petitioner's reliance upon McGuiggin is misplaced

however as that decision appertained          to timeliness requirements   for federal habeas corpus


3
    Antiterrorism and Effective Death Penalty Act of 1996.


                                                     4
 petitions, not PCRA petitions.      Alternatively, Petitioner attached a heterogeneous collection of

 alleged exculpatory statements from alibi witnesses. These "statements" authored between 1999

 and 2003 also failed to satisfy the PCRA time-bar as facts unknown to the petitioner. 42 Pa.C.S.

 § 9545(b)(l)(ii).   Petitioner forthrightly admitted his past familiarity with these witnesses'

 statements, asserting that he presented them in a prior untimely PCRA petition. See PCRA

 petition, 4/3/2014 at 16.    Petitioner's concession was inimical to his effort to satisfy section

 9545(b) and his PCRA petition was accordingly dismissed as untimely.

         Petitioner's request for habeas corpus relief was also properly denied. In his petition for

 Writ of Habeas Corpus, Petitioner disputed the legality of his sentence due to a lack of a

 sentencing order. In Joseph v. Glunt, 96 A.3d 365 (Pa. Super. 2014), the Superior Court held

 that a claim identical to the instant one was not cognizable under the PCRA and was properly

 raised in a writ of habeas corpus. It is thus suggested that Petitioner be denied relief because

there is no merit to his claim.

        A review of the record confirmed that Petitioner was sentenced on August 6, 1999. Thus,

it does not matter whether the Department of Corrections possesses a copy of a written

sentencing   order for Petitioner.      Moreover,       Petitioner failed to prove how the missing

documentation establishes that he is being held under an illegal sentence. The fact that there is

no commitment form does not entitle him to any relief when the Department of Corrections had

continuous authority to detain him. See Joseph v. Glunt, supra (holding that the fact that the

Department of Corrections (DOC) did not possess sentencing order did not entitle appellant to

habeas relief). Therefore, Petitioner's claim was found to be without merit and his petition was

denied. Accordingly, for the reasons stated herein, it is suggested that the decision of the PCRA

Court be affirmed.



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