J-A22043-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

CANDELARIO SANCHEZ

                         Appellant                  No. 2028 MDA 2015


                 Appeal from the PCRA Order April 24, 2014
                In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0001621-2006


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                    FILED OCTOBER 06, 2016

     Appellant, Candelario Sanchez, appeals from the order entered in the

York County Court of Common Pleas, which denied his serial petition filed

under the Post Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A. §§ 9541-9546.

We affirm.

     The relevant facts and procedural history of this appeal are as follows.

        On December 14, 2005, officers were conducting a
        controlled buy in which the target was Santos Ramos-
        Rodriguez, [Appellant’s] co-defendant.     When Ramos-
        Rodriguez arrived at the buy location, Appellant was
        seated in the passenger seat of the vehicle. However, at
        this time officers did not even know the name of the
        individual sitting in the passenger seat. After the buy,
        both Ramos-Rodriguez and Appellant were arrested and
        searched.

        The search of the vehicle and Ramos-Rodriguez yielded the
        following: a black baggie; one baggie of cocaine; a black
        wallet; a Timex Expedition watch; black gloves; a cell
J-A22043-16


       phone; and $477 in cash. Appellant was found with a
       black wallet, keys with a container containing two blue
       pills, two orange pills, and one white pill, and two sets of
       keys. Although Trooper Keppel initially testified that all of
       the key rings were in Appellant’s possession, he clarified
       that one set of keys was found on Appellant, and the other
       two sets were found in the vehicle. Nevertheless, he then
       testified that the keys were found next to Appellant in the
       vehicle. However, this is not consistent with the evidence
       log which says [the] keys and attached container came
       from Appellant, but does not indicate who had the other
       two sets of keys.           Furthermore, when Corporal
       Fenstermacher was called by the defense to testify, he
       stated that only one set of keys was recovered from
       Appellant, and the other two sets were found in the
       vehicle. Corporal Fenstermacher opined that these sets of
       keys belonged to Ramos-Rodriguez since he owned the
       vehicle.

       Using all three keys, officers were able to open three
       residences: one at 32 North Queen Street, one [at] 314
       Reinecke Place, and one at 626 Chestnut Street. However,
       Corporal Fenstermacher could not recall which keys
       opened which apartments; all he could say was that a
       combination of the keys opened all three.

       Officers determined that Ramos-Rodriguez lived at 32 N.
       Queen Street based on prior surveillance and items found
       inside the apartment. After executing the search warrant,
       officers found the following items: one baggie of cocaine;
       mail [addressed] to Ramos-Rodriguez; a strainer with
       residue; a roll of tinfoil; two packets of rolling paper; one
       plastic baggie; two plastic bags of heroin; a marijuana
       cigarette; a driver’s license belonging to Ramos-Rodriguez;
       two cell phones; assorted mail; $1,250 in cash; a napkin
       with the address 802 Maryland Avenue written on it; a
       bank deposit slip; a check; a social security card with
       Ramos-Rodriguez’s name on it; $21,554 in cash in the
       bathroom closet; Viagra pills; and a brown paper bag.

       During their investigation, officers determined that the
       residence at 314 Reinecke Place was being rented out by
       Appellant. The following items were found: latex gloves; a
       box of face masks; a box of sandwich bags; a roll of duct

                                   -2-
J-A22043-16


       tape; a brown paper bag containing a baggie with a ripped
       corner; a pair of scissors; a newspaper with handwritten
       numbers; a Columbia Gas bill in the name of Ramos-
       Rodriguez dated November 30, 2005; mail addressed to
       Appellant at 324 Harding Court; a bag of white powder; a
       Black & Decker coffee grinder; and assorted mail
       addressed to various individuals. Corporal Fenstermacher
       testified that, in his opinion, these items coupled with the
       drugs and money found at the other two locations was
       indicative of a large scale drug operation.

       The white powder that was found at 314 Reinecke Place
       was not a controlled substance; although, Corporal
       Fenstermacher speculated that the powder could have
       been used to dilute cocaine for packaging purposes.
       However, there was no testimony as to what the white
       powder actually was.

       Finally, the following items were found at 626 Chestnut
       Street: a cell phone; four plastic bags containing heroin;
       three bricks of cocaine; another bag containing smaller
       bags of cocaine and heroin; a bag of packaging materials;
       sifters and spoons; a digital scale; sandwich bags; a coffee
       grinder; 150 orange pills; a box of ammunition; a delivery
       notice addressed to Ramos-Rodriguez; photographs; mail
       addressed to Appellant; paper towels; boxes of plastic
       bags; paperwork; another cell phone; a brown safe; two
       backpacks; and a firearm. Police found medical paperwork
       for Appellant in a dresser drawer, and also a bunch of
       pictures of Appellant and Ramos-Rodriguez.

       Corporal Fenstermacher testified that in total 3,686 grams
       of cocaine [were] found, which equates to about
       $368,000.00. A total of 1,583 grams of heroin [were]
       found, which equates to just a little over $1,000,000.00.
       Finally, the pills that were found were tested and
       determined to be morphine.

       Milgras Guilb, office manager of Quality Management
       Incorporated, testified that Ramos-Rodriguez rented two
       properties from her—314 Reinecke Place and 626 Chestnut
       Street. After Ramos-Rodriguez’s lease was up, Appellant
       began renting the apartment at 314 Reinecke Place on
       September 1, 2005.

                                  -3-
J-A22043-16



       Appellant was arrested on December 14, 2005, and
       charged with two counts of possession with intent to
       deliver; two counts of criminal conspiracy; one count of
       persons not to possess firearms; and one count of
       receiving stolen property.      Following his arrest, a
       preliminary hearing was held on March 1, 2006, and he
       was arraigned on April 7, 2006. One count of criminal
       conspiracy was withdrawn along with the charge of
       receiving stolen property.

       On May 8, 2006, Appellant, through counsel, filed an
       omnibus pretrial motion seeking severance of Appellant’s
       case from Ramos-Rodriguez’s case. A hearing was held on
       May 30, 2006, and the severance was denied.           …
       Testimony was heard on July 3 [and] July 5-6, and the
       jury returned a guilty verdict on July 7, 2006.

       On August 21, 2006, Appellant was sentenced to 25 years
       to 50 years’ imprisonment in a state correctional
       institution. On September 20, 2006, Appellant [timely
       filed a] notice of appeal to the Superior Court. [The trial
       court] directed him to file his [Pa.R.A.P.] 1925(b)
       statement, which he did on October 31, 2006. Appellate
       counsel failed to file a brief with the Superior Court, and
       the appeal was dismissed on May 17, 2007.

       Appellant filed his first pro se PCRA petition on July 9,
       2007. Lori A. Yost, Esquire was appointed to represent
       Appellant. On October 30, 2007, Appellant’s appeal rights
       were reinstated.      On November 8, 2007, Appellant,
       through counsel, filed a motion to modify sentence. That
       motion was denied on December 3, 2007.

       On December 27, 2007, Attorney Yost filed a notice of
       appeal to the Superior Court on Appellant’s behalf. The
       Superior Court affirmed Appellant’s judgment of [sentence]
       in a non-precedential opinion filed on March 24, 2009, and
       docketed to 2194 MDA 2007. The issues raised on direct
       appeal were: 1) the denial of the motion to sever the
       trials; 2) a comment made by the district attorney about
       Appellant not testifying; 3) sufficiency of the evidence; 4)
       jury instructions; and 5) sentencing. The Pennsylvania
       Supreme Court denied Appellant’s petition for allowance of

                                  -4-
J-A22043-16


          appeal on October 28, 2009. The U.S. Supreme Court also
          denied a writ of certiorari [on March 22, 2010].

          Appellant timely filed his second[1] PCRA petition on March
          18, 2011, and [the PCRA court] reappointed Attorney Yost
          to represent him on this petition. [The court] scheduled a
          hearing for July 26, 2011. On June 9, 2011, Appellant,
          through counsel, filed an amended PCRA petition.

          The amended PCRA petition raised the following issues: 1)
          Was trial counsel ineffective for failing to employ an expert
          in drug packaging and processing and/or ineffective in his
          cross-examination of the Commonwealth’s expert? 2) Was
          trial counsel ineffective for failing to file a pretrial motion
          seeking suppression of the evidence found at 314 Reinecke
          Place?    3) Was trial counsel ineffective in his cross
          examination of [Appellant’s] co-defendant Santos Ramos-
          Rodriguez? 4) Was trial counsel ineffective for failing to
          object to the testimony of the Pennsylvania State Police
          Crime Lab Supervisor where the analyses in this case were
          completed by another lab technician who did not testify?

          At the July 26th hearing [the PCRA court] reserved
          decision, but ultimately denied Appellant’s petition by
          order and opinion filed on January 17, 2012. Based on
          what was presented at the hearing, [the PCRA court] could
          not find that trial counsel was ineffective.         More
          specifically, [the PCRA court] found that trial counsel’s
          actions were reasonably based on the evidence that the
          Commonwealth had presented implicating Appellant.
          Unfortunately, the jury believed the Commonwealth
          presented evidence which proved each element of the
          offenses beyond a reasonable doubt. The Superior Court
          reviewed the record, and affirmed the [order denying PCRA
____________________________________________


1
  The court refers to the March 18, 2011 petition as Appellant’s “second”
petition, although it is considered his first petition for purposes of the
statutory timeliness requirements. See Commonwealth v. Turner, 73
A.3d 1283, 1286 (Pa.Super. 2013), appeal denied, 625 Pa. 649, 91 A.3d 162
(2014) (reiterating: “When a PCRA petitioner’s direct appeal rights are
reinstated nunc pro tunc in his first PCRA petition, a subsequent PCRA
petition will be considered a first PCRA petition for timeliness purposes”).



                                           -5-
J-A22043-16


       relief]. Reviewing the record as [the PCRA court has]
       done, several years past the time of the trial, [the PCRA
       court sees] several problems with the sufficiency of the
       evidence in this case; however, the jury as the trier of fact
       had the opportunity to view the evidence and listen to the
       testimony of witnesses to make determinations of
       credibility.

       On February 10, 2012, Appellant [timely filed a] notice of
       appeal to the Superior Court. On March 14, 2013, the
       Superior Court affirmed [the] denial of Appellant’s petition.
       However, before the Superior Court had ruled, Appellant
       filed a pro se PCRA petition on February 1, 2013. In this
       petition, Appellant alleged that his appellate counsel,
       Attorney Yost, was ineffective. Due to the fact that [the
       PCRA court] had appointed Attorney Yost, who had
       represented Appellant on appeal, to represent him on his
       PCRA, [the court] did not deny Appellant’s petition.
       Instead, on March 26, 2013, the court appointed Seamus
       D. Dubbs, Esquire, to represent Appellant on his [February
       1, 2013] petition.

       [The PCRA court] scheduled a hearing on the matter for
       May 29, 2013. However, before a hearing could be held,
       Attorney Yost filed a petition for allowance of appeal to the
       Pennsylvania Supreme Court. Once the Supreme Court
       denied Appellant’s request to review the case, [the PCRA
       court] reappointed Attorney Dubbs, and scheduled a
       hearing for February 27, 2014.

       [The only issue raised at the February 27th hearing] was
       whether Attorney Yost was ineffective for failing to ask the
       Superior Court for reconsideration following its affirmance
       of Appellant’s judgment of sentence. On April 24, [2014],
       the PCRA court issued an order and opinion denying
       Appellant’s PCRA petition.

       On May 30, 2014, Appellant filed a pro se notice of appeal
       to the Superior Court. On June 2, 2014, Attorney Dubbs
       filed a notice of appeal to the Superior Court. The same
       day, [the PCRA court] directed Appellant to file his [Rule]
       1925(b) statement. … On [June] 15, 2014, Appellant filed
       his [Rule] 1925(b) statement.


                                   -6-
J-A22043-16


         On July 18, 2014, the Superior Court directed Appellant to
         show cause as to why his appeal should not be dismissed
         because the PCRA court did not grant Appellant leave to
         appeal nunc pro tunc. Having received no response from
         Appellant, the Superior Court quashed the appeal on
         August 11, 2014.

         On July 13, 2015, Appellant filed another pro se PCRA
         petition. … On October 29, 2015, [at a PCRA hearing, the
         court] reinstated Appellant’s appeal rights with respect to
         the April 24, 2014, denial of his PCRA petition.         …
         Appellant timely filed a notice of appeal…on November 20,
         2015. [The PCRA court] directed him to file [a Rule]
         1925(b) statement, which he did on December 14, 2015.

(PCRA Court Opinion, filed December 30, 2015, at 2-8).

      Appellant raises the following issue for our review:

         WHETHER SUFFICIENT EVIDENCE WAS PRESENTED TO
         SUSTAIN A VERDICT OF GUILTY[?]

(Appellant’s Brief at 7).

      Our standard of review of the denial of a PCRA petition is limited to

examining    whether        the   evidence    of   record    supports    the     court’s

determination    and    whether      its     decision   is   free   of   legal    error.

Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,

612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the

findings of the PCRA court if the record contains any support for those

findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal

denied, 593 Pa. 754, 932 A.2d 74 (2007). The PCRA court findings will not

be disturbed unless the certified record provides no support for the findings.

Commonwealth v. Taylor, 933 A.2d 1035, 1040 (Pa.Super. 2007), appeal


                                           -7-
J-A22043-16


denied, 597 Pa. 715, 951 A.2d 1163 (2008).

         Appellant argues the Superior Court misstated key facts on direct

appeal.     Appellant contends police did not find any drugs at Appellant’s

residence, 314 Reinecke Place, as stated in this Court’s March 24, 2009,

disposition.    Appellant asserts the police searching Appellant’s residence

found only ordinary household items: a box of latex gloves, a box of face

masks, a box of sandwich bags, a roll of duct tape, a plastic bag with a

ripped corner, a pair of scissors, a newspaper with numbers written on it,

mail, a bag of unknown white powder, a coffee grinder, and a small plastic

baggie with the number “8” written on it.          Appellant maintains the

prosecution was unable to prove he had control over the apartment at 626

Chestnut Street, where drugs were found, or to demonstrate Appellant’s

awareness of any drug activity occurring there.        Appellant insists his

presence in his co-defendant’s car on the date of his arrest was just because

he needed a ride to another location. Appellant indicates his co-defendant’s

testimony established Appellant was not involved in drug production or

sales.     Appellant concludes the evidence presented was insufficient to

sustain his convictions. We cannot agree.

         The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Robinson, 12 A.3d 477 (Pa.Super. 2011). A court may

not examine the merits of a petition for post-conviction relief that is

untimely.      Commonwealth v. Abu-Jamal, 574 Pa. 724, 735, 833 A.2d


                                     -8-
J-A22043-16


719, 726 (2003), cert. denied, 541 U.S. 1048, 124 S.Ct. 2173, 158 L.Ed.2d

742 (2004). To be eligible for relief under the PCRA, a petitioner must plead

and prove, inter alia, his allegations of error were not previously litigated or

waived. 42 Pa.C.S.A. § 9543(a)(3).      A PCRA petition must be filed within

one year of the date the underlying judgment becomes final. 42 Pa.C.S.A. §

9545(b)(1). 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

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.   To invoke an exception, a petition must allege and the

petitioner must prove:

         (i) the failure to raise a 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)(1)(i)-(iii).      A petitioner asserting a timeliness


                                     -9-
J-A22043-16


exception must file a petition within sixty days of the date the claim could

have been presented. 42 Pa.C.S.A. § 9545(b)(2).

      Instantly, Appellant’s judgment of sentence became final on March 22,

2010, when the United States Supreme Court denied his petition for writ of

certiorari.    See U.S.Sup.Ct.R. 13.     Appellant filed his most recent PCRA

petition (3rd) on July 13, 2015. Appellant’s third petition made no attempt to

plead and prove any exception to the PCRA’s time restrictions, pursuant to

Section 9545(b)(1).     Instead, Appellant alleged that, on May 8, 2015, he

discovered this Court had quashed his appeal from the denial of his second

PCRA petition on August 11, 2014. Appellant filed his third PCRA petition 66

days later. Thus, Appellant’s third petition was patently untimely. See 42

Pa.C.S.A. § 9545(b)(1).     Appellant’s third petition sought to reinstate his

appeal rights from the order denying his second PCRA petition that he filed

on February 1, 2013, while the appeal from his first PCRA petition was still

pending.      The PCRA court should have dismissed Appellant’s February 1,

2013 PCRA petition, for lack of jurisdiction. See Commonwealth v. Lark,

560 Pa. 487, 746 A.2d 585 (2000) (holding court has no jurisdiction to

review subsequent PCRA petition that is filed while appeal from previous

PCRA petition is still pending).   See also Commonwealth v. Davis, 816

A.2d 1129, 1134 (Pa.Super. 2003), appeal denied, 576 Pa. 710, 839 A.2d

351 (2003) (stating appellant is precluded from filing additional PCRA

petition while prior PCRA petition is pending on appeal; if untimely,


                                       - 10 -
J-A22043-16


subsequent      petition   must     plead      and   prove   exception   to   one-year

jurisdictional time bar).       Likewise, Appellant’s February 1, 2013 petition

(second) was facially untimely, as it was filed almost three years after his

judgment of sentence became final. Yet, the court allowed this second PCRA

petition to linger until after the pending appeal concerning the denial of

Appellant’s previous petition was resolved; then the court granted a hearing

on the second petition. Ultimately, the court properly dismissed the second

petition in its April 24, 2014 order.           Although the PCRA court offered a

different rationale for its denial of relief, this Court may affirm on any basis.

See Commonwealth v. Reese, 31 A.3d 708, 727 (Pa.Super. 2011) (en

banc) (stating appellate court may affirm order of trial court on any basis if

ultimate decision is correct).         Thus, we affirm the April 24, 2014 order

presently before us, which denied Appellant’s February 1, 2013 petition

(second), because the court had no jurisdiction to address it on the merits.2

       Order affirmed.

____________________________________________


2
 Moreover, to the extent Appellant’s February 1, 2013 petition was based on
PCRA counsel’s ineffectiveness, Appellant abandoned that claim in this
appeal. Instead, Appellant’s brief addressed only the sufficiency of the
evidence to support his conviction. We observe that Appellant’s sufficiency
challenge was previously litigated on direct appeal. See Commonwealth v.
Sanchez, 972 A.2d 561 (Pa.Super. 2009), appeal denied, 603 Pa. 685, 982
A.2d 1228 (2009) (affirming Appellant’s conviction based on Appellant’s
access to large drug stash housed at 626 Chestnut Street). The appellate
decision made clear this Court did not rely on the errant fact contained in its
summary of facts. Put simply, the PCRA court erred when it addressed the
actual merits of Appellant’s sufficiency issue.



                                          - 11 -
J-A22043-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2016




                          - 12 -
