J-S47031-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ANGELO ROMERO

                            Appellant               No. 3101 EDA 2013


                 Appeal from the Order Entered October 9, 2013
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0902801-1996


BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                           FILED AUGUST 21, 2014

       Angelo Romero appeals from the October 9, 2013 order dismissing his
                                                             1
petition pursuant to the Post-                                   We affirm.

       The PCRA court has provided a brief, but apt, review of the factual and

procedural history of this case:

       On April 7, 1997, a jury presided over by the Honorable John J.
       Poserina found [Romero] guilty of first[-]degree murder, criminal
       conspiracy, and possession of an instrument of crime.[2] On May
       29, 1997, [Romero] was sentenced to life imprisonment for

       imprisonment] for [criminal] conspiracy, and one-half to five

       On April 6, 1999, the Superior Court affirmed the judgment of

____________________________________________


1
       42 Pa.C.S. §§ 9541, et seq.
2
       18 Pa.C.S. §§ 2502(a), 903, and 907, respectively.
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       sentence.[3] On July 29, 1999, the Pennsylvania Supreme Court
                                                               [4]



       On May 5, 2000, [Romero] filed his first pro se PCRA petition.
       Counsel was appointed and an amended petition was filed. On
       January 28, 2002, the [p]etition was dismissed.     [Romero]
       appealed, and on November 21, 2002, the Superior Court
       affirmed the dismissal.[5] On March 4, 2004, the Pennsylvania

       [appeal.6]

       On June 11, 2011, [Romero] filed the instant pro se PCRA
       petition, his second.

                                                     -2 (unnumbered).

       On October 5, 2011, the PCRA court filed notice of its intent to dismiss

                                               t a hearing pursuant to Pa.R.Crim.P.

907. On October 20, 2011, Romero filed an answer objecting to the PCRA



                                                                          RA court




____________________________________________


3
     Commonwealth v. Romero, 738 A.2d 1056 (Pa. Super. April 6,
1999) (table).
4
      Commonwealth v. Romero, 740 A.2d 1146 (Pa. July 29, 1999)
(table).
5
     Commonwealth v. Romero, 816 A.2d 334 (Pa. Super. November 21,
2002) (table).
6
      Commonwealth v. Romero, 847 A.2d 1283 (Pa. March 4, 2004)
(table).



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        On November 1, 2013, Romero filed a notice of appeal.              The PCRA

court did not direct Romero to file a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b), and Romero did not file one.




[c]ourt abuse its discretion in denying the PCRA [petition] in th[e] instant



qualifies for an exception to the time limitation bar [of the PCRA] and that

th[e]    instant   case   does   qualify    [for   the]   exception   42   Pa.C.S.   §

9545(b)(1)(iii), pursuant to Melendez-Diaz v. Massachusetts, 557 U.S.



        Like the trial court, we begin by reviewing our jurisdiction to consider

                                   -established that the PCRA time limits are

jurisdictional, and must be strictly construed, regardless of the potential

merit of the claims asserted. Commonwealth v. Leggett, 16 A.3d 1144,

1145 (Pa. Super. 2011); Commonwealth v. Murray, 753 A.2d 201, 202-

03 (Pa. 2000), abrogated on other grounds, Murray, 943 A.2d 264

(Pa.

requirements] in order to reach the merits of the claims raised in a PCRA

                                                     Murray, 753 A.2d at 203; see

Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).


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      In order to be timely, a petition under the PCRA must be filed within

one year of the date that the underlying judgment of sentence becomes

final. 42 Pa.C.S. §

the conclusion of direct review, including discretionary review in the

Supreme Court of the United States and the Supreme Court of Pennsylvania,



§ 9545(b)(3).




petition for allowance of appeal on July 29, 1999.      Romero did not file an

appeal to the United States Supreme Court, and his time in which to do so

expired ninety days after the Pennsylvania Supreme Court denied his

petition.   See U.S.Sup.Ct.R. 13(1).    Consequently, Romer

sentence became final on or about October 27, 1999. Pursuant to Section

9545, Romero had until October 27, 2000, to file a timely PCRA petition.



second PCRA petition is untimely, on its face, by more than ten years.

      Despite such facial untimeliness, a tardy PCRA petition nonetheless will

be considered timely if (but only if) the petitioner pleads and proves one of

the   three   exceptions   to   the   one-year   time   limit   enumerated   in

subsection 9545(b) of the PCRA, which provides as follows:




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      (1) Any petition under this subchapter, including a second or
      subsequent petition, shall be filed within one year of the date the
      judgment becomes final, unless the petition alleges and the
      petitioner proves that:

         (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.

      (2) Any petition invoking an exception provided in
      paragraph (1) shall be filed within 60 days of the date the claim
      could have been presented.


42 Pa.C.S. § 9545(b).    When an appellant files a facially untimely petition

under the PCRA, and fails to plead and prove one or more of the exceptions

                  -year jurisdictional time limit, the petition is untimely and

we must deny the appellant relief.     Commonwealth v. Gamboa-Taylor,

753 A.2d 780, 784 (Pa. 2000). Moreover, even when one of the exceptions

may apply to a given petition, we will excuse the untimeliness only if the

petition was filed within sixty days of the date that the conditions underlying

the exception came to light.    42 Pa.C.S. § 9545(b)(2); Gamboa-Taylor,

753 A.2d at 783-84.




                                     -5-
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      Instantly, Romero alleges that his petition qualifies for the exception

related to retroactively applied constitutional rights.    See 42 Pa.C.S. §

9545(b)(1)(iii).    Specifically,   Romero    argues   that   Melendez-Diaz

announced a new constitutional right that has been held to apply

retroactively. Thus, Romero argues that we should consider his petition to

be included in one of the exceptions to the timeliness requirements of the

PCRA.

      Romero is not the first Pennsylvania PCRA appellant who has sought to

circumvent the timeliness requirements of the PCRA by way of Melendez-

Diaz. In Leggett, a panel of this court adjudicated an identical claim. In

relevant part, this Court stated the following in Leggett regarding

Melendez-Diaz and Section 9545(b)(1)(iii):

                                                                       -
      recognized constitutional right, . . . the sixty-day period begins

      Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa. Super. 2007)
      (citation omitted). Therefore, as Melendez-Diaz was decided
      on June 25, 2009, [a]ppellant was required to file his PCRA
      petition on or before August 24, 2009 to invoke his claim within
      60 days of the date the claim first could have been presented.

                                *     *      *


      not excuse his failure to file a PCRA petition within sixty days of
      the filing of the judicial decision which he claims established an
      after-recognized constitutional right.       Commonwealth v.
      Baldwin, 789 A.2d 728, 731 (Pa. Super. 2001) (providing that
                                                               system is
      obliged to educate or update prisoners concerning changes in




                                     -6-
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Leggett, 16 A.3d at 1146-

it is clear that Romero failed to file the instant PCRA petition within the sixty

days required

June 11, 2011, almost two years after the decision in Melendez-Diaz was

decided. Thus, even assuming, arguendo, that Melendez-Diaz could offer

Romero any relief,7 his petition was patently untimely. Therefore, we lack

jurisdiction to consider it.

       Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2014




____________________________________________


7
     In Leggett, the panel of this Court specifically held that Melendez-
Diaz
Melendez-Diaz expressly provided that its holding was not new, but stated
                                     Crawford v. Washington, 541 U.S.

than the application of [its] holding in Crawford   Leggett, 16 A.3d at
1147 (citing Melendez-Diaz, 557 U.S. at 312, 329) (citation modified).
Thus, the Court in Leggett
not specifically held that Melendez-Diaz should be applied retroactively to
                             Id. (emphasis added).



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