J-S59009-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 LUIS ALONZO VILLATORO                    :
                                          :
                    Appellant             :    No. 268 EDA 2019

         Appeal from the PCRA Order Entered December 14, 2018
    In the Court of Common Pleas of Lehigh County Criminal Division at
                     No(s): CP-39-CR-0002514-2009


BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.

CONCURRING MEMORANDUM STATEMENT BY McLAUGHLIN, J.:

                                                     FILED MARCH 11, 2020

      I agree with the Majority that the PCRA court did not err in dismissing

Luis Alonzo Villatoro’s PCRA petition as untimely. However, I reach that

conclusion for slightly different reasons than the Majority.

      Villatoro essentially claims that his petition was timely because he only

recently learned from the Department of Corrections (“DOC”) that he allegedly

has several mental health diagnoses. However, he failed to explain why he

could not have obtained this information earlier, especially given the fact that

he knew he suffered a “traumatic brain injury” when he was shot in 2000. See

PCRA Petition, filed 8/17/18, at ¶ 16. Although I am puzzled that the PCRA

court did not order the DOC to give Villatoro his medical records, he does not

claim (or provide any evidence, such as an affidavit) that an expert would not

give an opinion about Villatoro’s mental state at the relevant times – i.e., at
J-S59009-19



the time of the crime and at the time of trial – without those records. Nor does

he assert that an expert could not obtain records from private medical

providers dating to before Villatoro’s present incarceration, or that such

records would not contain useful information.

      In the absence of such claims, I conclude that Villatoro failed to

adequately plead the “newly discovered fact” exception. See 42 Pa.C.S.A. §

9545(b)(1)(ii). Without adequate allegations, no evidentiary hearing was

necessary, and the PCRA court properly dismissed the petition on the

pleadings. See Commonwealth v. Brown, 111 A.3d 171, 178 (Pa.Super.

2015) (affirming denial of PCRA petition without evidentiary hearing where

appellant did not explain why he could not have discovered “new facts” earlier

with the exercise of due diligence).




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