J-S46018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

GABRIEL G. OCASIO

                            Appellant                No. 2419 EDA 2015


                    Appeal from the PCRA Order July 7, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0514001-2000


BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                              FILED AUGUST 19, 2016

        Gabriel G. Ocasio appeals, pro se, from the order entered on July 7,

2015, in the Court of Common Pleas of Philadelphia County, denying him

relief, without a hearing, on his third petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq.         Specifically, the

PCRA court determined this petition was untimely.          Following a thorough

review of the submissions by the parties, relevant law, and the certified

record, we affirm on the sound analysis of the PCRA court and direct the

parties to attach a copy of the PCRA court opinion, filed 10/13/2015, in case

of further proceedings.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S46018-16



        Initially, we note, “Our standard of review over the denial of a PCRA

petition is well-settled. In reviewing the denial of PCRA relief, we examine

whether the PCRA court's determination is supported by the record and free

of legal error.” Commonwealth v. Mitchell, ___ A.3d ___, 2016 WL

3909072 (Pa. 2016) (filed (7/19/2016) (citations and internal quotation

marks omitted).

        The PCRA court opinion in this matter accurately recounts the factual

and procedural history of this matter. We briefly note that in 2005, Ocasio

was convicted by jury of one count of first-degree murder, three counts of

attempted murder, and a variety of related charges. Ocasio was sentenced

to a term of life imprisonment.           After his direct appeal afforded him no

relief,1 Ocasio filed his first PCRA petition and was represented by James

Bruno, Esq. This also provided no relief to Ocasio.2 He filed a second PCRA

petition, pro se.     This petition claimed Bruno was ineffective.    The second

petition was dismissed as untimely.            A panel of our Court affirmed that

decision.3     This petition, Ocasio’s third, again raises claims of Bruno’s

ineffective assistance.       Here, Ocasio attempts to evade the timeliness

____________________________________________


1
 Commonwealth v. Ocasio, 919 A.2d 974 (Pa. Super. 2007) (unpublished
memorandum).
2
    No appeal was taken from the dismissal of this petition.
3
   See Commonwealth v. Ocasio, 2014 WL 10979204 (3/6/2014)
(unpublished memorandum).



                                           -2-
J-S46018-16



requirements that doomed his prior petition by claiming he only recently

discovered Bruno had been suspended from the practice of law due to

mental health issues. However, the PCRA court appropriately noted that

Ocasio fails to explain how this fact affects his case given that Bruno’s

suspension from the practice of law was made retroactive to February 26,

2013 while Bruno’s representation of Ocasio ended in 2009.4

       Our review of the certified record discloses the PCRA court’s order is

based upon the facts of record and is free from error. Accordingly, Ocasio is

not entitled to relief.

       Order affirmed.      Parties are directed to attach a copy of the PCRA

court opinion, dated, October 13, 2015, in the event of further proceedings.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2016




____________________________________________


4
 There is some indication that Attorney Bruno’s symptoms may have first
manifested in 2011. However, that is still well after his relationship with
Ocasio terminated.



                                           -3-
                                                                                                Circulated 08/08/2016 10:22 AM

                             IN THE COURT OF COMMON PLEAS
                        FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                 CRIMINAL TRIAL DIVISION


     COMMONWEALTH OF PENNSYLVANIA

                   v.                                            CP-5l-CR-0514001-2000

    GABRIEL OCASIO
    pp# 900140
                                                                          FILED
    DOCKET NO.: 2419 EDA 2015                                                 OCT       1¥1_ 2015
                                                                      Criminal Appeal.s Unit
                                                                    First Judicia\ Distnct of PA
                                                     OPINION
                                    .        •....                    .   .    . ....

            Appellant, Gabriel Ocasio, appeals the July 7, 2015, dismissal of his

    petition for relief pursuant to the Post Conviction Relief Act, 42 Pa. C.S. §§

    9541 - 9546 et seq. (PCRA). Following review, the Court determined                          that

    appellant's petition was untimely and failed to properly invoke an exception to

    the timeliness requirements. The procedural history is as follows.

           On September 27, 2005, following a jury trial, appellant was found guilty

.   of first degree murder, attempted murder (3 counts), carrying a firearm without

    a license, possession     of an instrument of crime and aggravated assault, and

    sentenced to life imprisonment         followed by 30-60 years incarceration for the

    murder of Francisco Quintana, and the shooting of Brian Norat, Pomy Pomales

    and Nicholas Rios.! Post sentence motions were denied without a hearing and,


    1 18 Pa.C.S. § 2502; 18 Pa.C:S. § 2502, § 901; 18 Pa.C.S. § 6106;   18 Pa.C.S. § 907; 18 Pa.C.S.
    § 2702, respectively. In addition to his sentence of life imprisonment without the possibility of
    parole for first degree murder, appellant received 10-20 years incarceration on each attempted
    murder charge, to run consecutively to each other and the life sentence; 3 Y2- 7 years
    incarceration for carrying a firearm without a license; 2 Y2-5 years incarceration for possessing
    an instrument of crime; and 5-10 years incarceration for aggravated assault, to run concurrent
                                                        1
            j
                         on January 30, 2007, the Superior Court affirmed the judgment of sentence.

                         Appellant's petition for allowance of appeal was denied by the Pennsylvania

                         Supreme court on July 10, 2007.

                                 On October 12, 2007, appellant filed a timely pro se PCRA petition

                         claiming that he was entitled to relief because of the ineffective assistance of

                         trial and appeal counsel.? On February 27, 2009, following independent review

        j                of appellant's claims in both the pro se, and amended petitions, and the
        I
        J                Commonwealth's motion to dismis~, the Court determined that appellant had

                         failed to state a claim which entitled him to relief and a notice pursuant to

                         Pa.R.Crim.P. 907, indicating that appellant's petition would be dismissed

                         without a hearing after twenty days, was filed and served on appellant.

                                On March 6, 2009, appellant filed a pro se response to the 907 notice,

                         claiming that PCRA counsel had not communicated                               with him and requesting                                                                                       t
    I


II·                      that attorney Raymond Roberts be appointed as replacement                                               PCRA counsel. In

i                        response to appellant's allegations,               the Court held dismissal of appellant's
1-·.            .   ..   ..        ----.--···-·····---·-··---·--· --·-·--------------------------   -···-.:. . . .------·---~-      .----.--·-··--·-   . ----·----------··-···    . . ···- -··:··----- .... _,t.     '
                         petition in abeyance and had PCRA counsel respond to appellant's                                               allegations                         · ·                                  j
!
                         at the March 17, 2009 listing. Counsel represented to the Court that he had in

                         fact been in contact with appellant, but would meet with appellant again, and·

                         additional   time was given for counsel to consult further with appellant and
                                                                                                                                                                                                                i?
                         proceed accordingly. On June 18, 2009, PCRA counsel filed a supplemental                                                                                                               •·


                         amended PCRA petition containing four additional claims. The Commonwealth

                                                                                                                                                                                                        .   '
                                                                                                                                                                                                            i
                         to all other sentences.                                                                                                                                                            l

                         2 Specifically, appellant complained that "trial counsel failed to object to multiple errors," and

                         "direct appeal counsel failed to file a proper brief to the Superior Court."

                                                                                  2
filed its motion to dismiss on June 26, 2009. Thereafter, the Court reviewed all

of the submissions and the applicable law and determined that appellant was

not entitled to PCRA relief. On August 21, 2009, a907 notice was filed and

served on appellant. On September 10, 2009, the Court received appellant's

prose response to the 907 notice, styled as a "Motion to Vacate the Court's

Pa.R.Crim.P. 907 Intention to Dismiss Order and for the Appointment of New

PCRA Counsel," indicating only that appellant had forwarded his entire file to

PCRA counsel and it had not yet been returned, that counsel only picked up

appellant's file eight days prior to the issuance of the 907 notice, and again

requesting that a specific attorney be appointed to replace appointed PCRA

counsel. The Court reviewed appellant's response and determined that return

of his file and a request to appoint a specific attorney to his case were not

issues warranting PCRA relief, and appellant's PCRA petition was dismissed

without a hearing on September 11, 2009. No appeal was taken.

            On March 12, 2012, appellant filed a second petition for post conviction
 -•   •:-   --~-   ---~--·--•   -- ·------•··•••r••••••••••-··-···-~---·-•--·-----~·•-·
relief claiming that he was eligible for relief beca                                      'use   of the i;~-f~ctiv~-assTs-tance   .. - --- ... .... . - ....

of counsel, improper obstruction by government officials of his right to appeal

where a meritorious appealable issue existed, newly discovered exculpatory

evidence, and because of the imposition of a sentence greater than the lawful

maximum. After reviewing appellant's complaints, the record and the

controlling law, the Court determined that appellant's petition for relief was

untimely. A 907 notice so indicating was filed and served on appellant on

February 7, 2013. On March 7, 2013, the Court received appellant's response


                                                                         3
                  to the 907 Notice, complaining that PCRA counsel had provided ineffective

il                assistance and outlining thirty-two claims that he would have raised on PCRA.3

                  Review of the claims revealed that they were either addressed                                          on direct appeal,

I                 vague and undeveloped or had been raised in the counseled                                           amended and


l1
                  supplemental           amended petitions. On March 22, 2013, appellant's

                  petition for post conviction relief was formally dismissed. The Superior Court
                                                                                                                                second



 l
 j
     l            affirmed the dismissal on March 6, 2014 and the Pennsylvania                                             Supreme Court


 l                denied the petition for allowance of appeal on August 19, 2014.


     Il                    On December 31, 2014, appellant filed this his third PCRA claiming that

                  a newspaper article dated November 26, 2014, indicating that his former PCRA
     "
     lI          counsel had been suspended for two years retroactive ·to his temporary

         !
         !       'suspension in February 2013, due to mental health issues, amounted to after

                 discovered evidence sufficient to overcome the PCRA time bar. Appellant

                 subsequently forwarded a copy of a letter from the Office of Disciplinary

                  Counsel dated February 3, 2015, indicating that PCRA counsel by Order dated
                                                   . -··· -----·-·--- ------ ··- ... ·----··-·-··· --·- ······-- __ ....... ---------·-···-··-·------------·-·..
                                                                                                          ,                                                        .   . .•. ·• .•. - -···

             -- --N6vemoerl3~-2{H4, was su-i;pended from the practice of law in this

                 Commonwealth               for a period of two years retroactive to February 26, 2013, to be

                 followed by a two year period of probation after reinstatement.4                                           After review of

                 appellant's        claims and the record, the Court determined that appellant had not

                 met his burden to show that his petition met a timeliness exception                                                since the

                 PCRA for which counsel had been appointed was completed September                                                        11,




                 3   The docket does not indicate that appellant's response to the 907 Notice was filed.
                 4   See File Reference Cl-10-705

                                                                                   4
                  2009. In response to the Rule 907 notice, appellant again asserted the claims

                  in his petition and included that, "Before a psychologist identified the disorders

                  in a 2011 diagnosis, determining they caused [PCRA counsel] to forget to file

                  pleadings, petitions, and appeal notices, as well as provide clients with

                  updates."> The Court did not find that this language entitled appellant to relief

                  and appellant's PCRA petition was dismissed as untimely on July 7, 2015. This

                  appeal followed.

                           The standard of review of a PCRA court's grant or denial of relief is

                  limited to examining whether the trial court's determination is supported by
                                                                                                                                                          •




                 -the evidence·     of record   and ·""';h.ether it   is fre~ of legal error.              Commonwealth                  v.

                  Owens, 2000 PA Super 105, 750 A.2d .872 (Pa. Super. 2000). The petition must

                  be timely, as the PCRA's timeliness restrictions are jurisdictional in nature and

                  are to be strictly construed.        Commonwealth v. Abu-Jamal, 596 Pa. 219, 941

                  A.2d 1263, 1267-68 (2008). A judgment becomes final at the conclusion of

\\                direct review, including discretionary          review in the Supreme Court of the
                                                                                  - -·-·- -··· ·-~· .. ·· - -- ---- ····-·:···--:-··---- -·- .
                                                                                                             .,.                                 ;   ..


 !-·-· -· ·   ·----tJnitea-states-and""llie-S-upreme        Court .. o'rP~~~~yl~ania, or at the expiration of

                  time for seeking the review. Commonwealth v. Smith, 2011 PA Super 260, 35

                  A.3d 766, 769 (Pa. Super. Ct. 2011) citing 42 Pa.C.S.A. § 9545(b)(3).                                        However,

                  an otherwise untimely PCRA petition may be reviewed, when a petitioner

                  invokes and pleads one of the exceptions provided in section 9545(b)(l),                                           which

                  provides in relevant part:

                           (b) Time for filing petition.-


                  5   This appears to be a quote, but appellant does not reference where the language is found.
                                                                         5
                        (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
                       .G<:mstitution orlaws 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.                                                        '''
                                                                                                                         . i
                           ..
                       (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_.A.   § 9545(b)(l) and (2). It isthe petitioner's   burden to plead and

                prove an exception to the PCRA-timeliness         rule. Commonwealth v. Blackwell,

                2007 PA Super 314, 936 A.2d 497, 500 (Pa. Super. Ct. 2007).

I                      Appellant asserts that after discovered evidence of PCRA counsel's
                                                                                                            ·-·"'   ..
l·--   ·   ·    mental health-iss~~s which resulted in his suspensicn f;6~-·th~-~~-actic·~       ~r-i;; .
                meet the timeliness requirement of the PCRA. The record shows that PCRA

                counsel was appointed for appellant's first PCRA on April 8, 2008. On

                November 7, 2008, counsel filed an amended petition complaining            of

                approximately ten instances where trial and appellate counsel allegedly

                provided ineffective assistance. Thereafter the Court determined         that

                appellant's claims lacked merit and filed and served appellant with a Rule 907

                notice. On March 6, 2009, appellant filed a pro se response to the 907 notice,


                                                              6
1
l
1
j    claiming that PCRA counsel had not communicated with him and requesting
'l

l
j    that new counsel be appointed to replace PCRA counsel. In response to
[

     appellant's allegations, the Court held dismissal of appellant's petition in

     abeyance and had PCRA counsel respond to appellant's allegations on the

     record at the March 17, 2009 listing; Appellant agreed to remain with counsel

     and, on June 18, 2009, after consulting with appellant; PCRA counsel filed a

     supplemental amended PCRA petition containing four additional claims.

     Following review of all submissions, a second Rule 907 notice was served on

     appellant to which appellant responded with a request for appointment      of

     replacement counsel. Appellant's PCRA first timely petition was dismissed on

     September 11, 2009, two years before counsel's alleged 2011 diagnosis of

     mental health issues and four years before the retroactive date of counsel's

     suspension. Therefore, appellant has failed to demonstrate that his petition

     meets any of the timeliness exceptions. Accordingly, appellant's PCRA petition

     is untimely.

           For the foregoing reasons, appellant's petition for post conviction relief

     was properly dismissed.

                                    BY THE COURT:

                                    ~tu~-~
                                    SHEILA WOODS-SKIPPER, J.




                                             7
