J-S45041-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

FRANCISCO DELEON, JR.,

                            Appellant                 No. 68 WDA 2016


                Appeal from the PCRA Order November 24, 2015
                  in the Court of Common Pleas of Erie County
               Criminal Division at No.: CP-25-CR-0001531-1999


BEFORE: OLSON, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED JULY 26, 2016

        Appellant, Francisco DeLeon, Jr., appeals pro se from the order

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

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

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

On March 9, 2000, a jury found Appellant guilty of first-degree murder and

related offenses. The conviction stems from Appellant’s participation in the

stabbing death of Martin Ondreako, during which Appellant and three other

individuals stabbed Ondreako multiple times, in retaliation for Ondreako’s

cooperation in a police investigation. The trial court sentenced Appellant to

an aggregate term of incarceration of life, plus not less than 240 nor more

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S45041-16



than 480 months.          This Court affirmed the judgment of sentence on

September 28, 2001.         (See Commonwealth v. DeLeon, 788 A.2d 1027

(Pa. Super. 2001) (unpublished memorandum)). The Pennsylvania Supreme

Court denied Appellant’s petition for allowance of appeal on March 19, 2002.

(See Commonwealth v. DeLeon, 796 A.2d 978 (Pa. 2002)).

       On August 21, 2002, Appellant, acting pro se, filed his first PCRA

petition. Appointed counsel filed an amended petition on July 8, 2004. The

PCRA court entered an order dismissing the petition on March 18, 2005,

following an evidentiary hearing. This Court affirmed the PCRA court’s order

on December 9, 2005, and our Supreme Court denied Appellant’s petition for

allowance of appeal on April 28, 2006. (See Commonwealth v. DeLeon,

894 A.2d 816 (Pa. Super. 2005) (unpublished memorandum), appeal

denied, 898 A.2d 1069 (Pa. 2006)).

       On October 27, 2015, Appellant filed the instant pro se PCRA petition.

On November 2, 2015, the PCRA court issued notice of its intent to dismiss

the petition without a hearing. See Pa.R.Crim.P. 907(1). On November 24,

2015, the court entered its order dismissing the petition. This timely appeal

followed.1

       Appellant raises the following questions for our review:
____________________________________________


1
   Pursuant to the PCRA court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on January 28, 2016. The
court entered an opinion on February 1, 2016, in which it referred this Court
to the Rule 907 notice for the reasons for dismissal. See Pa.R.A.P. 1925.



                                           -2-
J-S45041-16



          1. Was trial counsel ineffective for not requesting a
          Pressel[2] charge during trial when [the] prosecutor made
          reference to “corroborating” statements of codefendants?

          2. Was PCRA counsel ineffective for not raising trial
          counsel[’]s error during initial post-conviction proceedings
          thereby waiving petitioner[’]s right to review?

(Appellant’s Brief, at 2) (unnecessary capitalization omitted).

       Our standard of review of a trial court order granting or denying
       relief under the PCRA calls upon us to determine whether the
       determination of the PCRA court is supported by the evidence of
       record and is free of legal error. The PCRA court’s findings will
       not be disturbed unless there is no support for the findings in the
       certified record.

Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013)

(citations and internal quotation marks omitted).

       “Before we may address the merits of Appellant’s arguments, we must

first consider the timeliness of Appellant’s PCRA petition because it

implicates    the    jurisdiction    of    this   Court   and   the   PCRA   court.”

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation

omitted).

       A PCRA petition, including a second or subsequent one, must be
       filed within one year of the date the petitioner’s judgment of
       sentence became 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
____________________________________________


2
  Commonwealth v. Pressel, 168 A.2d 779 (Pa. Super. 1961) (one
accomplice’s testimony cannot be used to corroborate another accomplice’s
testimony).




                                           -3-
J-S45041-16


      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. . . .

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

and footnote omitted).

      In this case, Appellant’s judgment of sentence became final on June

17, 2002, when his time to file a petition for writ of certiorari with the United

States Supreme Court expired.      See U.S. Sup. Ct. R. 13; 42 Pa.C.S.A. §

9545(b)(3).    Therefore, Appellant had one year from that date to file a

petition for collateral relief, specifically, until June 17, 2003.      See 42

Pa.C.S.A. § 9545(b)(1).      Because Appellant filed the instant petition on

October 27, 2015, it is untimely on its face, and the PCRA court lacked

jurisdiction to review it unless he pleaded and proved one of the statutory

exceptions to the time-bar. See id. at § 9545(b)(1)(i)-(iii).

      Section 9545 of the PCRA provides only three limited exceptions that

allow for review of an untimely PCRA petition:

            (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




                                      -4-
J-S45041-16


               (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.

Id.

         “If the [PCRA] petition is determined to be untimely, and no exception

has been pled and proven, the petition must be dismissed without a hearing

because Pennsylvania courts are without jurisdiction to consider the merits

of the petition.”     Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa.

Super. 2011), appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted).

Our Supreme Court “has repeatedly stated it is the appellant’s burden to

allege     and   prove   that   one   of    the    timeliness   exceptions   applies.”

Commonwealth v. Hawkins, 953 A.2d 1248, 1253 (Pa. 2008) (citation

omitted). Therefore, an appellant must acknowledge that his PCRA petition

is untimely, and demonstrate that one or more of the statutory exceptions

applies. See Commonwealth v. Wharton, 886 A.2d 1120, 1125-26 (Pa.

2005).

         Here, in his brief, Appellant does not acknowledge that his PCRA

petition is facially untimely, or attempt to demonstrate the applicability of

any of the enumerated exceptions.                 (See Appellant’s Brief, at 2-5).

Therefore, we conclude that Appellant has not met his burden of proving his

untimely petition fits within one of the three limited exceptions to the PCRA’s

time-bar. See Jones, supra at 17; Hawkins, supra at 1253.




                                           -5-
J-S45041-16



     Moreover, to the extent that Appellant attempts to invoke all three

exceptions to the time-bar in his PCRA petition based on his ineffective

assistance of counsel claims, (see PCRA Petition, 10/27/15, at 3), “[i]t is

well settled that allegations of ineffective assistance of counsel will not

overcome   the    jurisdictional   timeliness   requirements   of   the   PCRA.”

Wharton, supra at 1127 (citation omitted).        Therefore, we conclude that

the PCRA court properly dismissed Appellant’s petition as untimely with no

exception to the time-bar pleaded or proven. See Barndt, supra at 191-

92. Accordingly, we affirm the order of the PCRA court.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2016




                                      -6-
