J-S49014-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
      Appellee

                   v.

SAMUEL FELICIANO

      Appellant                                    No. 2899 EDA 2013


              Appeal from the PCRA Order of October 3, 2013
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0109241-2005


BEFORE: OLSON, OTT and STABILE, JJ.

MEMORANDUM BY OLSON, J.:                          FILED AUGUST 12, 2014

      Appellant, Samuel Feliciano, appeals pro se from the order entered on

October 3, 2013, dismissing his petition filed under the Post-Conviction

                                         -9546. We affirm.

      We have previously summarized the factual background of this case as

follows:

      [O]n the night of August 14, 2001, multiple individuals were
      operating an open air drug operation near a residence located at
      230 West Atlantic Street in Philadelphia.      These individuals
      included [Appellant], Wilma Irizarry, Gilbert Quinon, and Robert
      Rodriguez, all of whom were observed going into and out of the
      residence at 230 West Atlantic Street.

      After having observed a number of street transactions, the
      officers arrested [Appellant] and his cohorts. Pursuant to that
      arrest, the police searched [Appellant] and found a black plastic
      bag in the front of his pants that contained three small vials of
      phencyclidine (PCP) with black caps, having a weight of .114
      grams. The officers also searched the residence at 230 West
      Atlantic Street, and therein discovered the following contraband:
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           - in the front corridor, a clear plastic bag containing seven
           bluetinted packets of crack cocaine with an aggregate
           weigh of 3.5 grams,

           - on top of the television, seven Xanax pills and a clear
           Ziploc bag containing 2.8 grams of cocaine,

           - underneath the couch, a large Ziploc bag containing
           177.4 grams of marijuana,

           - in the kitchen freezer, the officers discovered a black
           plastic bag containing four separate bundles, each bundle
           of which contained 25 vials of PCP with blue caps, that had
           a total weight of 10.147 grams.

        The officers also discovered clear plastic bags with numerous
        green and black caps, Ziploc bags, and heat sealable packets.
        Apart from the drugs, the officers discovered a welfare card and

        Winchester shotgun, a Tek-9 with a silencer, a rifle, and
        ammunition.

Commonwealth          v.   Feliciano,   943   A.2d   312   (Pa.   Super.   2007)

(unpublished memorandum), at 1-3.

        The procedural history of this case is as follows. On March 6, 2006,

Appellant was found guilty of possession with intent to deliver,1 knowing and

intentional possession of a controlled substance,2 and conspiracy.3 On May

31, 2006, the trial court sentenced Appellant to an aggregate term of 15 to



the sentence because the trial court erred by not imposing the mandatory


1
    35 P.S. 780-113(a)(30).
2
    35 P.S. 780-113(a)(16).
3
    18 Pa.C.S.A. § 903.


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J-S49014-14


minimum. See id. at 5-8. On March 12, 2008, Appellant was re-sentenced

in absentia

did not file a post-sentence motion or file a direct appeal from his March 12,

2008 judgment of sentence.

      On July 10, 2012, more than four years after his judgment of

sentence, Appellant filed a pro se PCRA petition.     On December 10, 2012,



pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and

                                                                             -

conviction collateral relief was meritless. On September 5, 2013, the PCRA

court issued notice pursuant to Pennsylvania Rule of Criminal Procedure

907(1) of its intent to dismiss the petition without an evidentiary hearing.



This timely appeal followed.4

      Appellant presents two issues for our review:

      1. [Was Appel

      2. [Did the witnesses at trial commit perjury?]




4
  On October 11, 2013, the PCRA court ordered Appellant to file a concise
                                                                     See
Pa.R.A.P. 1925(b).  On October 28, 2013, Appellant filed his concise
statement. On January 8, 2014, the trial court issued its Rule 1925(a)

statement.


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J-S49014-14




the underlying petition. Thus, we must first determine whether the instant

PCRA                              Commonwealth v. Smith, 35 A.3d 766,

768 (Pa. Super. 2011), appeal denied, 53 A.3d 757 (Pa. 2012).            The



             Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013)

(citation omitted). Thus, we shall forego individual assessment of the merits



attention on whether Appellant timely filed his PCRA petition and, if not,

whether h

requirement.




judgment 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

                                                                 ppealed his



petition was filed on July 10, 2012.      Thus, the petition was patently

untimely.5



5
   The fact that Appellant was sentenced in absentia does not impact the
timeliness requirement of the PCRA. See Commonwealth v. Pollard, 911
A.2d 1005, 1007 (Pa. Super. 2006).


                                    -4-
J-S49014-14


     An untimely PCRA petition may be considered if one of the following

three exceptions applies:

     (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.A. § 9545(b)(1)(i-iii).   If an exception applies, a PCRA petition




burden to plead and prove an exception to the PCRA-

Commonwealth v. Wiley, 966 A.2d 1153, 1158 (Pa. Super. 2009) (citation

omitted).



determination that his petition was untimely is incorrect. Instead, he only

argues the merits of his claims. As such, he has waived any argument that

his petition is timely or that he has satisfied one of the three timeliness

exceptions to the PCRA. See Pa.R.A.P. 2116(a), 2119(a). Thus, Appellant

has failed to plead and prove t



                                    -5-
J-S49014-14

timeliness exceptions.    Accordingly, the PCRA court lacked subject matter



     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/12/2014




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