J-S37025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

GABRIEL GONZALEZ,

                         Appellant                 No. 2115 EDA 2014


                 Appeal from the PCRA Order July 11, 2014
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0303521-2000


BEFORE: GANTMAN, P.J., SHOGAN, and LAZARUS, JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED JULY 07, 2015

      Appellant, Gabriel Gonzalez, appeals pro se from the order denying his

third petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546. We affirm.

      In addressing Appellant’s direct appeal, this Court summarized the

history of this case as follows:

      On the evening of February 29, 2000, Vincent Green was
      working as a pizza delivery driver in Philadelphia.           At
      approximately 11:00 p.m. the manager of the pizza shop gave
      Green some pizzas to deliver.        As Green conversed with
      Mr. Sulpizio, his manager, Appellant entered Green’s unlocked
      delivery vehicle. Realizing that the interior light might alert
      someone to his presence, Appellant ripped out the dome light in
      the vehicle. When Green entered his delivery vehicle, he sat
      down and then noticed Appellant in the back seat. Green then
      began throwing money at Appellant. Despite the fact that Green
      surrendered his money without a fight, Appellant pointed his gun
      at Green and shot him in the chest at point blank range. After
      hearing the gunshot, Mr. Sulpizio glanced outside and noticed a
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     man about 5’8” or 5’9” exit Green’s car and flee.        Green
     stumbled back into the pizza shop and collapsed in front of his
     manager. Mr. Sulpizio called 911 and Green was rushed to the
     hospital. Unfortunately, Green was pronounced dead at the
     hospital a few hours later.

           The following day police officers were summoned to a
     sporting goods store by a security guard. The security guard
     informed the officers that a man (Appellant), sitting in a parked
     automobile, had just stolen a pair of sneakers. The police
     approached Appellant and retrieved the sneakers. The police
     subsequently arrested Appellant for retail theft.

           Early the next morning, while Appellant was still in jail on
     the retail theft charge, the police received an anonymous phone
     call, implicating Appellant in the murder of Green.             At
     approximately 4:45 a.m. that morning, Detective Gross
     b[r]ought Appellant into an interview room at the homicide unit.
     Gross told Appellant he wished to speak with him regarding the
     murder of Green. Gross read Appellant his Miranda warnings.
     When Gross finished reading Appellant these warnings, Appellant
     stated “you might find my fingerprints inside the car because
     Green asked me to fix his inside light.” Gross immediately
     ceased speaking with Appellant, left the interview room, and
     retrieved a portable typewriter. Gross also b[r]ought Detective
     McGuffin into the interview room. Again, Gross read Appellant
     his Miranda warnings, and McGuffin typed them out on the
     typewriter. Appellant read each of the warnings and initialed
     and signed his name. Gross left McGuffin to complete the
     interview with Appellant.       After one and one-half hours,
     Appellant confessed to the shooting.

            Appellant stated that on the night in question he had split
     a six-pack of beer with his friend, “Shiz”. At 11:00 p.m., Shiz
     left to see his girlfriend and Appellant went home and retrieved
     his handgun. Appellant stated that he entered Green’s car and
     hid in the backseat. When Green entered the car, he saw
     Appellant lying in the backseat and began throwing money at
     him. Appellant then shot Green and fled with approximately two
     hundred dollars. Appellant explained that he fled down an alley
     towards his house, threw the gun into his backyard, and hid
     when he saw police looking for him. Appellant indicated that he
     had gone to the sporting goods store the following day and stole


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     the sneakers because he felt “bad” for what he had done to
     Green the previous night, and he wanted to get caught.

           At approximately 11:00 a.m. that morning Mr. Serota, an
     attorney purporting to represent Appellant, arrived at the police
     station. Gross showed Serota Appellant’s signed statement and
     b[r]ought him in to speak privately with Appellant. Later that
     day, the police executed a search warrant for Appellant’s
     residence. In the basement of the residence, police found the
     clothes Appellant claimed he was wearing on the night of the
     murder, and a gun box for a .45 caliber handgun. The police,
     however, were unable to ascertain the whereabouts of the
     handgun.

           The Commonwealth charged Appellant with murder,
     robbery and possession of an instrument of crime. Prior to trial,
     Appellant retained new counsel. Appellant filed a pretrial motion
     to suppress any statements he had made to the police while in
     custody. Appellant alleged detectives Gross and McGuffin beat
     and choked him in the interrogation room, and that is why he
     confessed. Mr. Serota testified that Appellant told him the two
     detectives had beaten and choked him until he confessed. The
     suppression court ruled Appellant’s statements to the police were
     voluntary, and denied Appellant’s motion to suppress.

            Appellant proceeded to a jury trial. At trial, Detective
     Edward Davis testified that he had received an anonymous call
     on the day after Appellant’s arrest. As a result of that call, he
     ascertained the whereabouts of Appellant, and arranged to have
     him transported to the homicide unit for questioning. Appellant’s
     counsel did not object to this testimony. The Commonwealth
     also introduced evidence concerning Appellant’s arrest for retail
     theft on the day following the murder. Once again, Appellant’s
     counsel did not lodge an objection to the introduction of this
     testimony. Appellant also supplied counsel with the names of
     alibi witnesses as well as witnesses who would testify regarding
     Appellant’s reputation for peacefulness in the community.
     Appellant’s counsel chose not to call these witnesses at trial.
     The jury convicted Appellant of second degree murder, robbery,
     and possession of an instrument of crime. The court sentenced
     Appellant to life imprisonment.




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Commonwealth v. Gonzales, 2019 EDA 2001, 809 A.2d 956 (Pa. Super.

filed August 7, 2002) (unpublished memorandum at 1-5) (footnote and

citations omitted).1

       On August 7, 2002, this Court affirmed Appellant’s judgment of

sentence in an unpublished memorandum. Gonzales, 2019 EDA 2001. Our

Supreme Court denied Appellant’s petition for allowance of appeal on

September 3, 2004.          Commonwealth v. Gonzales, 858 A.2d 108 (Pa.

2004).

       On February 9, 2004, Appellant filed a timely pro se PCRA petition and

the PCRA court appointed counsel.              Counsel filed amended PCRA petitions

and the PCRA court held an evidentiary hearing. The PCRA court ultimately

dismissed the first PCRA petition on May 18, 2007. This Court affirmed the

denial of PCRA relief and our Supreme Court denied allowance of appeal on

January 16, 2009.        Commonwealth v. Gonzalez, 1586 EDA 2007, 961

A.2d 1275 (Pa. Super. filed August 18, 2008) (unpublished memorandum),

appeal denied, 964 A.2d 1 (Pa. 2009).

       On June 28, 2010, Appellant filed a second PCRA petition, which the

PCRA court ultimately dismissed on February 24, 2012. This Court affirmed

the denial of PCRA relief and our Supreme Court denied allowance of appeal

____________________________________________


1
   We note that in Appellant’s direct appeal his last name was spelled
Gonzales. However, in subsequent proceedings his last name has been
spelled Gonzalez.



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on June 7, 2013. Commonwealth v. Gonzalez, 826 EDA 2012, 64 A.3d 25

(Pa. Super. filed December 18, 2012) (unpublished memorandum), appeal

denied, 68 A.3d 907 (Pa. 2013).

      On October 17, 2013, Appellant filed the instant PCRA petition. In an

order dated June 30, 2014, the PCRA court dismissed the PCRA petition as

untimely filed.   The docket in the certified record reflects that the PCRA

court’s order was sent to the parties on July 11, 2014. This pro se appeal

followed.

      In his brief, Appellant presents the following issues for review, which

we set forth verbatim:

      1. Did the PCRA Court violate’s 5th,6th, And 14th Amendment
      rights as well as Article I, Section nine of the Pennsylvania
      Constitution. The PCRA Court also violated Canon 1 and Canon
      2-A when the court dismissed Appellate’s subsequent PCRA
      Petition filed under 42 Pa. C.S.A. § 9545 (b) (i) (ii), without
      addressing Appellate’s submitted Issues?

      2. Did the Commonwealth withheld exculpatory evidence
      concerning the anonymous caller and the investigation that led
      them to believe that Alec Hector was the caller to support the
      probable cause for the arrest warrant which is a clear
      “Miscarriage of Justice”, Thus rendering the Appellate Actually
      Innocent?

      3. Did Trial, Direct Appeal, And PCRA Counsel render ineffective
      for failing to raise the validity of the Probable Cause of the arrest
      warrant via suppression hearing?

Appellant’s Brief at 3.

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA


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court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).        The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

      A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition.      Commonwealth v.

Murray, 753 A.2d 201, 203 (Pa. 2000). A judgment of sentence “becomes

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.

§ 9545(b)(3).

      However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),




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and (iii), is met.2 A petition invoking one of these exceptions must be filed

within sixty days of the date the claim could first have been presented. 42

Pa.C.S. § 9545(b)(2).         In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Carr, 768 A.2d at 1167.

       Our review of the record reflects that the trial court imposed a

sentence of life imprisonment on February 21, 2001.        This Court affirmed

Appellant’s judgment of sentence on August 7, 2002, and the Pennsylvania

Supreme Court denied allowance of appeal on September 3, 2004.              The

record does not reflect that Appellant sought review in the United States

Supreme Court. Accordingly, Appellant’s judgment of sentence became final
____________________________________________


2
    The exceptions to the timeliness requirement are:

       (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. § 9545(b)(1)(i), (ii), and (iii).



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on December 2, 2004, ninety days after the Pennsylvania Supreme Court

denied Appellant’s petition for allowance of appeal and the time for filing a

petition for review with the United States Supreme Court expired.          42

Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.R. 13.     Appellant did not file the instant

PCRA petition until October 17, 2013.      Thus, the instant PCRA petition is

patently untimely.

      As previously stated, if a petitioner does not file a timely PCRA

petition, his petition may nevertheless be received under any of the three

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.

§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file

his petition within sixty days of the date that the exception could be

asserted. 42 Pa.C.S. § 9545(b)(2).

      The record reflects Appellant attempted to raise, in the instant PCRA

petition, the exception that the facts upon which his claim is predicated were

unknown to Appellant, 42 Pa.C.S. § 9545(b)(1)(ii).            Regarding this

exception, this Court has stated the following:

             In order to sustain an untimely PCRA petition under the
      after-discovered evidence exception, a petitioner must show that
      the evidence: (1) has been discovered after the trial and could
      not have been obtained prior to the conclusion of the trial by the
      exercise of reasonable diligence; (2) is not merely corroborative
      or cumulative; (3) will not be used solely for impeachment
      purposes; and (4) is of such a nature and character that a
      different verdict will likely result if a new trial is granted.

Commonwealth v. Johnson, 841 A.2d 136, 140-141 (Pa. Super. 2003).

Furthermore, our Supreme Court has stated that “[a] claim which rests

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exclusively upon inadmissible hearsay is not of a type that would implicate

the after-discovered evidence exception to the timeliness requirement, nor

would such a claim, even if timely, entitle Appellant to relief under the

PCRA.”   Commonwealth v. Yarris, 731 A.2d 581, 592 (Pa. 1999).              In

addition, our Supreme Court explained that “the after-discovered facts

exception focuses on facts, not on a newly discovered or newly willing

source for previously known facts[.]”     Commonwealth v. Marshall, 947

A.2d 714, 721 (Pa. 2008) (emphasis in original; internal quotation marks

and citation omitted). See also Commonwealth v. Abu-Jamal, 941 A.2d

1263, 1269 (Pa. 2008) (concluding that alleging a new conduit for a

previously known fact “does not transform [the] latest source into evidence

falling within the ambit of § 9545(b)(1)(ii)”) (citation omitted).

      Instantly, Appellant claims that he is entitled to PCRA relief on the

basis of after-discovered evidence consisting of affidavits he obtained from

two fellow inmates, as well as his own affidavit. The PCRA court found no

merit to Appellant’s assertion, and addressed his claim as follows:

             Here, [Appellant] submits as after-discovered evidence,
      and the basis for a new trial, three purported affidavits, one from
      himself and two others from fellow inmates allegedly in
      possession of information that he did not possess at the time of
      his trial. [Appellant’s] claim is, however, based on inadmissible
      hearsay that cannot be the basis for a new trial, therefore his
      after-discovered evidence claim is meritless. Each purported
      after-discovered evidence document will be analyzed below.




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              The first document is submitted by SCI Houtzdale inmate
       Clifford Terlonge and is in fact not an affidavit, but rather an
       unsigned and undated recitation of hearsay from Ale[c] Hector[3]
       stating what Mr. Hector allegedly told [Mr. Terlonge] about
       events surrounding decedent’s murder.       The document also
       contains a statement from Mr. Terlonge that he told Officer
       Holman that he and Mr. Hector were together the night of the
       decedent’s murder. As this court stated at [Appellant’s] May 29,
       2014 status hearing, to satisfy the PCRA time-bar, after-
       discovered evidence must be “producible and admissible.”
       Accordingly, given that there is no hearsay exception to the
       admissibility requirements for the after-discovered evidence
       exception, this court properly found that [Appellant] was not
       entitled to a new trial based on Mr. Terlonge’s statement.
       Furthermore, as with Ale[c] Hector’s affidavit submitted with
       [Appellant’s] second petition, it is clear that the contents of
       Mr. Terlonge’s statement could only be used to impeach
       Officer Holman’s testimony.

             The second document, an affidavit submitted by SCI
       Houtzdale inmate Tyree Bush, also fails to provide the basis for a
       new trial because it too is inadmissible hearsay. In his affidavit,
       Mr. Bush claims that he observed Mr. Terlonge’s encounter with
       Officer Holman, fourteen (14) years ago. Indeed, Mr. Bush’s
       affidavit merely confirms what Mr. Terlonge allegedly said to
       Officer Holman, and as such is also inadmissible hearsay that
       cannot be the basis for a new trial. Even if admissible, the Bush
       evidence could only be used to impeach the testimony of Officer
       Holman.     Thus, this court properly found it insufficient to
       overcome the PCRA time-bar.

            In his own affidavit, [Appellant] explains how he first
       became aware of this “after-discovered evidence” on August 28,
____________________________________________


3
   In his untimely second PCRA petition, Appellant presented an affidavit
from Alec Hector, in which Hector stated that the police knew his identity,
that Hector called the police station and falsely accused Appellant of the
murder, and Hector was afraid of being implicated in the murder himself.
Commonwealth v. Gonzalez, 826 EDA 2012, 64 A.3d 25 (unpublished
memorandum) at 10. Also in the second PCRA petition, Appellant included
an affidavit from fellow inmate Chester Wiles averring that Hector admitted
to Wiles that Hector falsely accused Appellant of murder. Id.



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     2013. Therein, he stated that fellow inmates Terlonge and Bush
     approached him while in state incarceration and disclosed the
     aforementioned information about the night of decedent’s
     murder fourteen (14) years earlier.       [Appellant’s] affidavit
     merely states that he filed this third petition within sixty (60)
     days of becoming aware of the aforementioned inadmissible
     hearsay evidence. Nevertheless, for the reasons stated above,
     [Appellant] is not entitled to relief.

            As in Yarris, the trial record herein amply demonstrates
     that [Appellant’s] evidence which purportedly reveals that
     someone else committed the murder for which he was convicted
     is not within any exception to the PCRA time-bar.

            [Appellant] claims that he is entitled to a new trial under
     the PCRA because the facts stated in the purported affidavits
     were unknown to him and could not have otherwise been
     obtained prior to trial. Third Petition for Post-Conviction Relief at
     17, Commonwealth v. Gonzalez, No. 2115 EDA 2014.
     [Appellant] has, however, failed to prove that the information
     allegedly discovered on August 28, 2013, and contained in the
     submitted documents could not have been obtained by the
     exercise of reasonable diligence prior to the conclusion of the
     trial. [Appellant] also claims that the after-discovered evidence
     contained in the submitted documents is not cumulative or
     corroborative of any evidence presented at trial. Id. at 18. In
     fact, [Appellant] insists that Officer Holman’s testimony denying
     his own presence at the scene of the murder is false and that the
     evidence implicates a new suspect. Id. at 18, 19. Yet, in
     assessing the content of the evidence as a whole, [Appellant]
     has not provided sufficient proof that the documents submitted
     are not merely corroborative or cumulative of evidence
     previously submitted in prior PCRA petitions.

           Moreover, even if the foregoing affidavits constituted
     admissible    after-discovered     evidence,  absent    significant
     indication that it [sic] will not be used solely for impeachment
     purposes, [Appellant] has failed to overcome the time bar for
     PCRA relief.       [Appellant] asserts that in spite of the
     Commonwealth’s overwhelming evidence, including his eight
     page statement to the police, which contains his confession to
     decedent’s    murder,     the    submitted   documents     support
     [Appellant’s] innocence and prove the need for a new trial.
     However, as the trial record aptly demonstrates, the evidence

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      presented against [Appellant] was overwhelming. Inasmuch as
      the record contains [Appellant’s] confession to the murder for
      which he was convicted, and over a dozen discrete facts from
      that confession that were documented by independent evidence,
      [Appellant] has failed to establish that the new evidence would
      compel a different verdict. Thus, where [Appellant] only offers
      as after-discovered evidence unauthenticated and inadmissible
      affidavits of himself and two fellow inmates, he has failed to
      prove the need for a new trial or to plead and prove specific
      facts that demonstrate his claim was actually raised within the
      60 day time frame as required under subsection 9545(b)(1)(ii).

PCRA Court Opinion, 12/3/14, at 10-13.

      We agree with the PCRA court’s analysis and likewise conclude that,

even if the affidavits did present admissible evidence, they would be used

only to impeach the testimony of the police relating to the events

surrounding the investigation of Appellant as the murderer.    Moreover, by

employing new affidavits pertaining to Alec Hector, Appellant cannot now

rely on “newly willing source[s] for [this] previously known fact[],” and his

attempt to invoke the newly-discovered facts exception to the PCRA

timeliness requirements lacks merit.     Commonwealth v. Marshall, 947

A.2d at 721. Therefore, it is our determination that the PCRA court did not

err in finding that Appellant’s instant PCRA petition is untimely and that no

exceptions to the timeliness provision applies.

      Consequently, because Appellant’s third PCRA petition was untimely

and no exceptions apply, the PCRA court lacked jurisdiction to address the

claims presented and grant relief.    See Commonwealth v. Fairiror, 809

A.2d 396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction


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to hear untimely petition).   Likewise, we lack the authority to address the

merits of any substantive claims raised in the PCRA petition.               See

Commonwealth        v.    Bennett,   930      A.2d   1264,   1267   (Pa.   2007)

(“[J]urisdictional time limits go to a court’s right or competency to adjudicate

a controversy.”).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/7/2015




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