J-S57003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                           Appellee

                     v.

CHRISTIAN BUENO

                           Appellant                  No. 2913 EDA 2016


                Appeal from the PCRA Order August 16, 2016
               In the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-CR-0000791-2011


BEFORE: PANELLA, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                          FILED OCTOBER 06, 2017

      Appellant, Christian Bueno, appeals from the order dismissing as

untimely his second petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The PCRA court summarized the relevant facts and procedural history

of this case as follows:

      On September 20, 2011, [Appellant] entered a plea of guilty to
      the charge of criminal homicide – murder of the first degree (18
      Pa.C.S.A. § 2501(a)). A presentence investigation report was
      waived and [Appellant] wished to immediately proceed to
      sentencing. [The same day, Appellant] was sentenced to a term
      of life imprisonment in a state correctional institution. Thereafter,
      on September 30, 2011, [Appellant] filed a post-sentence motion
      in the form of a Motion to Withdraw Guilty Plea pursuant to
      Pennsylvania Rule of Criminal Procedure Rule 720. After
      [conducting a] hearing, this motion was denied by this Court on
      October 10, 2011. [Appellant’s] appeal followed on November 8,
      2011. Thereafter, this court’s judgment of sentence was affirmed
      by the Superior Court of Pennsylvania on August 7, 2012. On
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     September 6, 2012, [Appellant] filed a petition for allowance of
     appeal with the Supreme Court of Pennsylvania that was denied
     on January 9, 2013.

     Thereafter, [Appellant] filed a motion for post conviction collateral
     relief on January 9, 2014. On February 4, 2014, Sean Poll, Esquire
     was appointed to represent [Appellant] on his motion for post
     conviction collateral relief. On March 12, 2014, Attorney Poll
     authored and filed a letter pursuant to the requirements of
     Commonwealth v. Finley, 379 Pa. Super. 390, 550 A.2d 213
     (1988). A hearing relative to [Appellant’s] motion was conducted
     before this court on May 1, 2014. At the evidentiary hearing,
     court-appointed counsel represented to this court that after
     thoroughly reviewing the file, he found that there was no legal
     basis on which to proceed with [Appellant’s] motion for post
     conviction collateral relief. Therefore, this court permitted
     Attorney Poll’s withdrawal from the matter. Additionally,
     [Appellant] indicated his desire to proceed at a later date with his
     motion for post conviction collateral relief and that he would try
     to retain private counsel. The hearing was continued to June 12,
     2014.

     On June 10, 2014, Craig Cooley, Esquire entered his appearance
     in the above-captioned matter. On October 8, 2014, Attorney
     Cooley filed an amended petition for post conviction collateral
     relief. On [Appellant’s] request, this Court continued the matter
     to October 22, 2014. At the time of the evidentiary hearing on
     October 22, 2014, Attorney Cooley indicated his need for more
     time and requested a further continuance of the matter. Said
     request was granted, and the matter was continued until
     December 23, 2014. The matter was subsequently continued to
     February 5, 2015 and then to March 26, 2015. Defense counsel
     filed a supplement to the amended petition for post conviction
     collateral relief on February 9, 2015, and a second supplemental
     amended PCRA petition on March 4, 2015. An evidentiary hearing
     relative to [Appellant’s] motion was conducted before this court
     on March 26, 2015. Thereafter, on May 13, 2015, this court denied
     [Appellant’s] motion for post conviction collateral relief. Then, on
     June 8, 2015, [Appellant] filed a notice of appeal with the Superior
     Court of Pennsylvania.

PCRA Court Opinion, filed 8/16/16, at 1-3 (unnecessary capitalization

omitted).


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      Before our Court rendered a decision in the appeal from Appellant’s first

PCRA petition, Appellant filed a second PCRA petition with the PCRA court on

January 4, 2016. In it, Appellant alleged he had obtained newly-discovered

evidence, which would excuse his late filing. The PCRA court denied the

petition for lack of jurisdiction, as Appellant’s first petition was still on appeal.

      On April 19, 2016, our Court affirmed the PCRA court’s denial of

Appellant’s first PCRA petition. On July 6, 2016—78 days later—Appellant

refiled his second PCRA petition, alleging the same newly-discovered evidence

theory. Appellant amended his PCRA petition on August 15, 2016. Following a

hearing to determine the timeliness of Appellant’s purported newly-discovered

evidence, the PCRA court dismissed his petition as untimely. His appeal is now

before us.

      Preliminarily, we must consider the timeliness of Appellant’s PCRA

petition. See Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super.

2014).

      A PCRA petition, including a second or subsequent one, must be
      filed within one year of the date the petitioner’s judgment of
      sentence becomes final, unless he pleads and proves one of the
      three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
      judgment becomes final at the conclusion of direct review by this
      Court or the United States Supreme Court, or at the expiration of
      the time for seeking such review. 42 Pa.C.S.[A.] § 9545(b)(3).
      The PCRA’s timeliness requirements are jurisdictional; therefore,
      a court may not address the merits of the issues raised if the
      petition was not timely filed. The timeliness requirements apply to
      all PCRA petitions, regardless of the nature of the individual claims
      raised therein. The PCRA squarely places upon the petitioner the
      burden of proving an untimely petition fits within one of the three
      exceptions.


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Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (some internal

citations and footnote omitted).

      A petitioner asserting one of these exceptions must file a petition within

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

Pa.C.S.A. § 9545(b)(2). Exceptions to the time-bar must be pled in the

petition, and may not be raised for the first time on appeal. See

Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007). See also

Pa.R.A.P. 302(a) (providing that issues not raised before the lower court are

waived and cannot be raised for the first time on appeal).

      In order to establish grounds for relief based on newly-discovered

evidence, a PCRA petitioner

      must demonstrate that the evidence: (1) 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 to impeach the credibility
      of a witness; and (4) would likely result in a different verdict if a
      new trial were granted.

Commonwealth v. Padillas, 997 A.2d 356, 363 (Pa. Super. 2010).

      A PCRA court may not entertain a new PCRA petition while a prior PCRA

petition is still on appeal. See Commonwealth v. Porter, 35 A.3d 4, 14 (Pa.

2012). Instead, the subsequent petition must be filed within sixty days of the

date of the order finally resolving the previous PCRA petition. See

Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000).

      Instantly, Appellant’s judgment of sentence became final on April 9,

2013, when his time for filing a petition for writ of certiorari with the United

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States Supreme Court expired. See U.S.Sup.Ct.R. 13. His second PCRA

petition, filed over three years later on July 6, 2016, is patently untimely.

Thus, the PCRA court lacked jurisdiction to review Appellant’s petition unless

he was able to successfully plead and prove one of the statutory exceptions

to the PCRA’s time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      Appellant alleges he discovered new evidence in the form of an interview

with a previously unknown witness, Felix Oquendo. Appellant claims that Mr.

Oquendo would refute the statement of a Commonwealth witness, Reina

Lopez, who claimed she overheard Appellant confess that he committed the

murder to Mr. Oquendo. The interview with Mr. Oquendo took place on

November 5, 2015. Appellant filed his second PCRA petition containing this

allegation on January 4, 2016. This PCRA petition was denied without

prejudice, as Appellant’s first PCRA petition was still on appeal. On April 19,

2016, this Court affirmed the denial of Appellant’s first PCRA petition. At that

time, Appellant was free to either file a petition for allowance of appeal of his

first PCRA petition to the Pennsylvania Supreme Court, or to discontinue

litigating his first PCRA petition and file a subsequent PCRA petition. Appellant

chose the latter.

      However, Appellant refiled his second PCRA petition on July 6, 2016—

78 days after this Court issued an order which finally resolved Appellant’s first

petition. Under Lark, Appellant failed to file this claim within sixty days of the




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first date it could have been presented. See 746 A.2d at 588. Thus, Appellant’s

second petition alleging newly-discovered evidence is untimely.

      We briefly note that had we addressed this claim on the merits it would

not have provided Appellant relief. The PCRA court held a hearing on August

15, 2016, to determine whether Mr. Oquendo’s statement was, in fact, newly-

discovered evidence. The PCRA court found that Ms. Lopez gave her statement

in 2011, naming Mr. Oquendo as a witness to Appellant’s alleged confession

to the murder. Appellant was aware of Ms. Lopez’s statement prior to his guilty

plea. Mr. Oquendo was incarcerated in a state prison facility at that time, and

thus his whereabouts were known. From this, the court determined that

Appellant failed to exercise reasonable diligence in interviewing Mr. Oquendo,

and thus Mr. Oquendo’s statement did not constitute newly discovered

evidence. See PCRA Court Opinion, filed 8/16/16, at 5. We agree, and thus

would have found that Appellant’s claim is without merit.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2017




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