J-S69030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RICHARD BERMUDEZ                           :
                                               :
                       Appellant               :   No. 2035 EDA 2019


              Appeal from the PCRA Order Entered June 17, 2019,
               in the Court of Common Pleas of Chester County,
             Criminal Division at No(s): CP-15-CR-0004520-2007.



BEFORE:      SHOGAN, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.:                          FILED JANUARY 14, 2020

        Richard Bermudez appeals pro se from the order denying his petition

filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

        The pertinent facts and procedural history are as follows. On April 28,

2009, Bermudez entered an open guilty plea to third-degree murder and

conspiracy to commit robbery. On April 5, 2010, the trial court sentenced

Bermudez to an aggregate term of twenty-seven to fifty-four years in prison.

The trial court denied Bermudez’s timely filed post-sentence motion.

Bermudez filed an appeal to this Court in which he challenged the discretionary



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*   Retired Senior Judge assigned to the Superior Court.
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aspects of his sentence. We affirmed Bermudez’s judgment of sentence on

October 25, 2011. Commonwealth v. Bermudez, 37 A.3d 1242 (Pa. Super.

2011) (unpublished memorandum). Bermudez did not seek further review.

      On January 8, 2013, Bermudez filed a pro se PCRA petition, and the

PCRA court appointed counsel. Subsequently, Bermudez sought to withdraw

the petition, and the PCRA court granted the withdrawal by order entered April

23, 2013. More than five years later, Bermudez filed the pro se PCRA petition

at issue on December 3, 2018.       On May 24, 2019, the PCRA court issued

Pa.R.A.P. 907 notice of its intent to dismiss Bermudez’s petition as untimely.

Bermudez filed a response. By order entered June 17, 2019, the PCRA court

denied Bermudez’s PCRA petition. This appeal followed. Both Bermudez and

the PCRA court have complied with Pa.R.A.P. 1925.

      Bermudez has raised seven issues on appeal. Before addressing these

issues, however, we must first determine whether the PCRA court correctly

determined that his current PCRA petition was untimely filed.

      This Court’s standard of review regarding an order dismissing a petition

under the PCRA is to ascertain 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 omitted).




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        Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

is final unless the petition alleges, and the petitioner proves, that an exception

to the time for filing the petition, set forth at 42 Pa.C.S.A. sections

9545(b)(1)(i), (ii), and (iii), is met.1 A PCRA petition invoking one of these

statutory exceptions must “be filed within 60 days of the date the claims could

have been presented.” See Commonwealth v. Hernandez, 79 A.3d 649,

651-52 (Pa. Super. 2013) (citations omitted); see also 42 Pa.C.S.A. §

9545(b)(2).2 Asserted exceptions to the time restrictions for a PCRA petition




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1   The exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of 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), (ii), and (iii).

2Section 9545(b)(2) has since been amended to enlarge this period from sixty
days to one year. See Act of 2018, October 24, P.L. 894, No. 146, §§ 2 and
3. The sixty-day time period applies in this appeal.


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must be included in the petition, and may not be raised for the first time on

appeal. Commonwealth v. Furgess, 149 A.3d 90 (Pa. Super. 2016).

      Here, because Bermudez did not file a petition for allowance of appeal

after we affirmed, his judgment of sentence became final thirty days

thereafter, or on November 24, 2011. See 42 Pa.C.S.A. § 9545(b)(3). Thus,

for purposes of the PCRA’s time bar, Bermudez had to file his first PCRA

petition by November 24, 2012. Bermudez filed the PCRA petition at issue in

2018. Thus, the petition is patently untimely, unless Bermudez has satisfied

his burden of pleading and proving that one of the enumerated exceptions

applies. See Hernandez, supra.

      Bermudez has failed to plead and prove any exception to the PCRA’s

time bar.   As raised in his petition and discussed in his brief, Bermudez

attempts to establish the “newly discovered evidence” exception found at

Section 9545(b)(1)(ii), based upon a recent federal decision. The PCRA court

found no merit to this claim:

         The “fact” that underlies this assertion is the decision of the
         U.S. Court of Appeals for the Third Circuit in Bennett v.
         Superintendent Graterford SCI, 886 F.3d 268 (3rd Cir,
         2018). “However, judicial decisions do not constitute new
         ‘facts’ for purposes of the newly-discovered evidence
         exception set forth in Section 9545(b)(1)(ii). New legal
         decisions can only overcome the PCRA’s timeliness
         requirements in the context of Section 9545(b)(1)(iii) [a
         new retroactive constitutional right].” Commonwealth v.
         Kretchmar, 189 A.3d 459, 467 (Pa. Super. 2018) (citations
         omitted). The Bennett case was decided by the Third
         Circuit, not the Pennsylvania or the U.S. Supreme Court.
         Therefore, the case does not meet the statutory
         requirement, regardless of whether it was held to be

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          retroactive. Even if it were decided by one of those
          tribunals, Bennett addresses the jury instructions given
          when a defendant is on trial for first-degree murder, of
          which [Bermudez] was not convicted, making the Bennett
          decision both procedurally and substantively inapplicable to
          this case. Therefore, [Bermudez] has not successfully
          asserted any of the exceptions to the timeliness requirement
          set forth in 42 Pa.C.S. § 9545(b)(1), and his petition is
          untimely.

Rule 907 Notice, 5/14/19, at 2 n.1.

       Our review of the record in conjunction with pertinent case law supports

the PCRA court’s conclusion. Thus, the PCRA court correctly concluded that it

lacked jurisdiction to consider the merits of Bermudez’s issues.3 We therefore

affirm its order denying Bermudez post-conviction relief.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/14/20




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3 In his pro se brief, Bermudez sets forth several claims of ineffectiveness of
counsel. Such allegations cannot establish an exception to the PCRA’s time
bar. See, e.g., Commonwealth v. Edmiston, 65 A.3d 339, 349 (Pa. 2013)
(explaining that allegations of ineffectiveness of counsel will not overcome the
jurisdictional timeliness requirements of the PCRA).

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