J. S15037/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                     v.                     :
                                            :
MICHAEL A. CATAGENA,                        :         No. 2169 EDA 2017
                                            :
                           Appellant        :


                    Appeal from the PCRA Order, June 6, 2017,
               in the Court of Common Pleas of Philadelphia County
                 Criminal Division at No. CP-51-CR-0815961-1992


BEFORE: STABILE, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED APRIL 27, 2018

        Michael A. Catagena1 appeals pro se from the June 6, 2017 order2

dismissing his untimely serial petition filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.         After careful review, we

affirm.

        The PCRA court summarized the relevant facts and procedural history

of this case as follows:

                    [Appellant], along with four confederates,
              robbed Sixto Negron and fatally shot Jose Orozco in
              1992.   On April 29, 1994, following a jury trial
              presided over by the Honorable Paul A. Ribner,

1   Appellant’s last name is also spelled “Cartagena” in his appellate brief.

2We note that appellant mistakenly indicated in his June 23, 2017 pro se
notice of appeal that his appeal was from an order entered on December 20,
2016; the appeal properly lies from the June 6, 2017 order dismissing his
PCRA petition.
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            [appellant] was convicted of second-degree murder,
            robbery,    conspiracy,  and    possession   of  an
            instrument of crime. On January 19, 1995, the trial
            court sentenced [appellant] to life imprisonment for
            the murder conviction. No appeal was taken.

                  [Appellant] filed his first PCRA petition on
            July 9, 2002. Counsel, [J. Scott O’Keefe, Esq.,] was
            appointed who subsequently filed a Turner/Finley
            “no-merit” letter.[Footnote 2]     The PCRA court
            subsequently dismissed the petition as untimely on
            April 3, 2003.     [Appellant] did not appeal the
            dismissal.

                  [Footnote   2]   Commonwealth     v.
                  Turner, 544 A.2d 927 (Pa. 1988), and
                  Commonwealth v. Finley, 550 A.2d
                  213 (Pa.Super. 1988) (en banc).

                  [Appellant] was subsequently unsuccessful in
            pursuing collateral relief through serial petitions filed
            in 2005 and 2012.

PCRA court opinion, 8/15/17 at 1-2.

      Appellant filed the instant PCRA petition, his fourth, on December 31,

2015. On February 28, 2017, the PCRA court provided appellant with notice

of its intention to dismiss his petition without a hearing, pursuant to

Pa.R.Crim.P. 907(1). Appellant filed a pro se response to the PCRA court’s

Rule 907 notice on March 21, 2017. Thereafter, on June 6, 2017, the PCRA

court dismissed appellant’s petition as untimely.     Appellant filed a pro se

notice of appeal on June 23, 2017. The PCRA court did not order appellant

to file a concise statement of errors complained of on appeal, in accordance

with Pa.R.A.P. 1925(b).     On August 15, 2017, the PCRA court filed an

opinion in support of its June 6, 2017 order.


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      Appellant raises the following issues for our review:

            I.    Whether appellant[’]s instant PCRA petition
                  predicated upon the “Newly-Discovered Facts”
                  contained in Darwin and Sandra Negron’s
                  sworn affidavits[] is timely filed under the
                  purview of 42 Pa.C.S.[A.] § 9545(b)(1)(ii), as
                  the facts contained in these affidavits
                  constitute “Newly-Discovered Facts,” and not a
                  previously known source of facts, as the PCRA
                  court claims?[]

            II.   Whether the PCRA court erred in dismissing
                  the instant PCRA petition without a hearing?

Appellant’s brief at 2 (unnecessary capitalization omitted).

      Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s

findings will not be disturbed unless there is no support for the findings in

the certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super.

2014) (citations omitted). “This Court grants great deference to the findings

of the PCRA court, and we will not disturb those findings merely because the

record could support a contrary holding.”       Commonwealth v. Hickman,

799 A.2d 136, 140 (Pa.Super. 2002) (citation omitted).          Lastly, we note

that, “[a]lthough this Court is willing to liberally construe materials filed by a

pro se litigant, pro se status confers no special benefit upon the




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appellant[.]”    Commonwealth v. Adams, 882 A.2d 496, 498 (Pa.Super.

2005) (citation omitted).

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

petition because it implicates the jurisdiction of this court and the PCRA

court.     Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014)

(citation omitted).    All PCRA petitions, including second and subsequent

petitions, must be filed within one year of when a defendant’s judgment of

sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). “A 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 the time for seeking the review.”        42 Pa.C.S.A.

§ 9545(b)(3). If a PCRA petition is untimely, a court lacks jurisdiction over

the petition.     Commonwealth v. Callahan, 101 A.3d 118, 120-121

(Pa.Super. 2014).

         Here, it is undisputed that appellant’s instant petition is patently

untimely.     As noted, appellant was sentenced to an aggregate term of life

imprisonment on January 19, 1995, and did not file a direct appeal. Thus,

appellant’s judgment of sentence became final on February 21, 1995,3

30 days after the time for filing a direct appeal with this court expired. See




3 We note that the 30-day deadline was Tuesday, February 21, 1995, as
February 18 and 19, 1995, fell over the weekend and the court was closed
on Monday, February 20, 1995, for President’s Day. See 1 Pa.C.S.A.
§ 1908.


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42 Pa.C.S.A. § 9545(b)(3).        Thus, in order to comply with the filing

requirements of the PCRA, appellant was required to file his petition by

February 21, 1996.      See 42 Pa.C.S.A. § 9545(b)(1).       Appellant’s instant

petition, filed December 31, 2015, is more than 19 years past the deadline.

As a result, the PCRA court lacked jurisdiction to review appellant’s petition,

unless appellant alleged and proved one of the statutory exceptions to the

time-bar, as set forth in Section § 9545(b)(1).

      The three narrow exceptions to the one-year time bar are as follows:

            (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); Commonwealth v. Brandon, 51 A.3d

231, 233-234 (Pa.Super. 2012). The appellant bears the burden of pleading

and proving the applicability of one of these exceptions. Commonwealth

v. Marshall, 947 A.2d 714, 720 (Pa. 2008) (citations omitted).              “In

addition, a petition invoking any of the timeliness exceptions must be filed


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within 60 days of the date the claim first could have been presented.”

42 Pa.C.S.A. § 9545(b)(2).

      Instantly, appellant invokes the “newly-discovered-facts” exception to

the PCRA time-bar in the form of the November 24, 2015 affidavit from

Darwin Negron (“Darwin”), a purported eyewitness who claimed that

appellant did not resemble any of the five men he observed running outside

his window the evening of the crime. (Pro se PCRA petition, 12/31/15 at

Exhibit C.) Darwin is the son of Sixto Negron, one of the victims robbed at

gunpoint by appellant and his cohorts.      Appellant also attached to his

petition a December 8, 2015 affidavit from Sandra Negron (“Sandra),

Darwin’s mother, who echoes Darwin’s statement and explains that she

encouraged Darwin to go to the authorities with this information.    (Id. at

Exhibit B.)   Appellant contends that these “newly-discovered facts,” which

were previously unknown to him until late 2015, are exculpatory in nature

and warrant that a new trial be granted.   (Appellant’s brief at 8-10.)   We

disagree.

      As noted, in order to prevail on a “newly-discovered facts” claim,

appellant is required to demonstrate “that the facts upon which the claim

was predicated were unknown and could not have been ascertained by the

exercise of due diligence.”   Commonwealth v. Bennett, 930 A.2d 1264,

1272 (Pa. 2007) (emphasis and numeration omitted), citing 42 Pa.C.S.A.

§ 9545(b)(1)(ii). Here, our review of the record reveals that appellant has



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failed to prove that neither Darwin nor his mother, Sandra, were unknown to

him and undiscoverable through the exercise of due diligence. Both Darwin

and Sandra are immediate family members of one of the robbery victims in

this case, Sixto Negron. Moreover, both of Darwin’s parents were identified

in discovery materials during appellant’s April 1994 jury trial as witnesses

and neighbors of the murder-victim, Jose Orozco, and were actively involved

in appellant’s case. Sandra gave a statement to the police in March 1992

after witnessing the perpetrators flee the scene of the crime, and victim

Sixto Negron testified during appellant’s preliminary hearing.             (See

investigation interview, 3/13/92, appellant’s brief at Exhibit E; notes of

testimony, 8/6/92 at 7-15.)        Under Section 9545(b)(1)(ii), “due diligence

requires neither perfect vigilance nor punctilious care, but rather it requires

reasonable      efforts   by   a     petitioner,   based   on   the   particular

circumstances, to uncover facts that may support a claim for collateral

relief.”   Commonwealth v. Brown, 141 A.3d 491, 506 (Pa.Super. 2016)

(citation omitted; emphasis added).       Clearly, appellant failed to undertake

reasonable efforts in this instance.     Based on the foregoing, we find that

appellant has failed to demonstrate that his untimely petition satisfies the

newly-discovered-facts exception to the statutory one-year time-bar.

       Appellant next argues, albeit parenthetically, that our decision in

Commonwealth v. Burton, 121 A.3d 1063 (Pa.Super. 2015) (en banc),

affirmed, 158 A.3d 618 (Pa. 2017), permits him to circumvent the PCRA



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time-bar. (Appellant’s brief at 12-13.) We find that appellant’s reliance on

Burton is misplaced.

        In Burton, we explained that while the general rule is “that publicly

available information cannot predicate a timeliness exception, beyond the

60–day grace period[,]” id. at 1071, “a pro se petitioner does not have

access to information otherwise readily available to the public.” Id. at 1072.

Thus, the presumption that a PCRA petitioner has access to public records

does not apply to a pro se petitioner. Id. Appellant fails to explain in his

brief   how   the   Burton   holding   impacted   his   burden   to   prove   the

aforementioned witnesses were previously undiscoverable. Here, appellant

alleges that he discovered Darwin not through public records, but rather

when he personally met him in prison in November 2015.

        Lastly, appellant baldly contends that the PCRA court erred in

dismissing his PCRA petition without conducting an evidentiary hearing.

(Appellant’s brief at 27-29.) We disagree.

        This court has long recognized that there is no absolute right to an

evidentiary hearing.      Commonwealth v. Hart, 911 A.2d 939, 941

(Pa.Super. 2006) (citation omitted). “It is within the PCRA court’s discretion

to decline to hold a hearing if the petitioner’s claim is patently frivolous and

has no support either in the record or other evidence.”       Commonwealth

v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012) (citations omitted). When the

PCRA court denies a petition without an evidentiary hearing, we “examine



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each issue raised in the PCRA petition in light of the record certified before it

in order to determine if the PCRA court erred in its determination that there

were no genuine issues of material fact in controversy and in denying relief

without conducting an evidentiary hearing.” Commonwealth v. Khalifah,

852 A.2d 1238, 1240 (Pa.Super. 2004).

      As discussed, the PCRA court properly found that appellant failed to

satisfy any of the statutory exceptions to the time-bar set forth in

Section 9545(b)(1).     Accordingly, we conclude that the PCRA court lacked

jurisdiction to consider the merits of appellant’s claim and discern no error

on the part of the PCRA court in dismissing appellant’s untimely petition

without conducting an evidentiary hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 4/27/18




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