J-S27018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MIGUEL REMEDIO                             :
                                               :
                       Appellant               :   No. 676 EDA 2017

                  Appeal from the PCRA Order January 6, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0706971-2005


BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.:                                FILED JUNE 12, 2018

        Miguel Remedio appeals from the order, entered in the Court of Common

Pleas of Philadelphia, dismissing without a hearing his Post Conviction Relief

Act1 (“PCRA”) petition as untimely and, therefore, unreviewable. After review,

we affirm.

        On November 21, 2005, Remedio pleaded guilty to possession with

intent to deliver a controlled substance (“PWID”).2 The trial court sentenced

Remedio to intermediate punishment and one year’s confinement followed by

two years’ probation.       On September 29, 2014, Remedio filed the instant,

counseled PCRA petition. The PCRA court dismissed Remedio’s petition on

January 6, 2017.       On January 31, 2017, Remedio filed a timely notice of

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1   42 Pa.C.S.A. §§ 9541-9546.

2   35 Pa.S. § 780-113.
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appeal. Both Remedio and the trial court have complied with Pa.R.A.P. 1925.

On appeal, Remedio raises one issue for review: “Did the PCRA court err in

dismissing [Remedio’s] PCRA petition without a hearing as untimely despite

the fact that . . . [his] PCRA petition was timely filed [pursuant to] the newly-

discovered facts [exception][.]” Brief of Appellant, at 4.

      “Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

by the evidence of record and free of legal error.”          Commonwealth v.

Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).

      As our Supreme Court has explained:

      the PCRA timeliness requirements are jurisdictional in nature and,
      accordingly, a PCRA court is precluded from considering untimely
      PCRA petitions. We have also held that even where the PCRA court
      does not address the applicability of the PCRA timing mandate,
      th[e] Court will consider the issue sua sponte, as it is a threshold
      question implicating our subject matter jurisdiction and ability to
      grant the requested relief.

Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 2003) (citations

omitted).

      Any PCRA petition must be filed within one year of the date the judgment

of sentence becomes final.      42 Pa.C.S.A. § 9545(b)(1).      A judgment of

sentence 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

review.” 42 Pa.C.S.A. § 9545(b)(3). “This Court has repeatedly stated that



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the PCRA timeliness requirements are jurisdictional in nature and, accordingly,

a PCRA court cannot hear untimely PCRA petitions.”           Commonwealth v.

Rienzi, 827 A.2d 369, 371 (Pa. 2003);            see also Commonwealth v.

Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (PCRA petition cannot be

addressed unless PCRA court has jurisdiction, and jurisdiction does not exist

if PCRA petition is untimely filed). Additionally, “the PCRA confers no authority

upon this Court to fashion ad hoc equitable exceptions to the PCRA time-bar

in   addition   to    those   exceptions   expressly   delineated   in   the   Act.”

Commonwealth v. Ligons, 971 A.2d 1125, 1164 (Pa. 2009) (citation and

brackets omitted); see also Commonwealth v. Fahy, 737 A.2d 214, 222

(Pa. 1999) (“[A] court has no authority to extend filing periods except as the

[PCRA] statute permits[.]”).

      A petitioner who files a PCRA petition beyond the one-year time limit

must plead and prove one of the three exceptions to the PCRA timeliness

requirements.        Commonwealth v. Johnston, 42 A.3d 1120, 1126 (Pa.

Super. 2012) (“If the petition is determined to be untimely, and no exception

has been pled and proven, the petition must be dismissed without a hearing

because Pennsylvania courts are without jurisdiction to consider the merits of

the petition.”) (citation omitted). These three exceptions are:

      (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;




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      (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). “The petitioner bears the burden to allege

and prove that one of the timeliness exceptions applies.” Commonwealth

v. Garcia, 23 A.3d 1059, 1062 (Pa. Super. 2011) (brackets omitted). Any

petition invoking one or more of these exceptions must be “filed within sixty

days of the date the claim could have been presented.”           42 Pa.C.S.A. §

9545(b)(2); Copenhefer, 941 A.2d at 648.

      Remedio did not seek a direct appeal and, thus, his judgment of

sentence became final on or about December 22, 2005, approximately 12

years ago.     Accordingly, Remedio’s PCRA petition is facially untimely.

However, Remedio avers that the newly-discovered fact exception allows the

PCRA court to consider his untimely PCRA petition.

      It is possible for a petitioner to plead and prove the newly-
      discovered fact exception, which gives the PCRA court jurisdiction
      and permits it to consider the petition on the merits, and then
      ultimately fail on the merits of an after-discovered evidence claim.
      The newly-discovered fact exception

             has two components, which must be alleged and
             proved. Namely, the petitioner must establish that:
             1) the facts upon which the claim was predicated were
             unknown and 2) could not have been ascertained by
             the exercise of due diligence. If the petitioner alleges
             and     proves    these    two    components,       then
             the PCRA court has jurisdiction over the claim under
             this subsection.

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Commonwealth v. Brown, 141 A.3d 491, 500 (Pa. Super. 2016), quoting

Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007).

       Remedio contends that the July 30, 2014 federal indictment of

Philadelphia Police Officer Michael Spicer3 revealed a newly-discovered fact

that Officer Spicer was “corrupt and allegedly committ[ed] a string of crimes

[that] could not have been known . . . at the time [Remedio] [pleaded]

guilty[.]” Brief of Appellant, at 15. Remedio timely filed his PCRA petition

within sixty days of learning of Officer Spicer’s indictment. Remedio alleges

that if not for Officer Spicer’s involvement in the investigation of his drug-

related crimes, the evidence would have been insufficient to sustain a

conviction for PWID.

       Instantly, Remedio has proffered no evidence, in the form of citation to

the record or otherwise, that Officer Spicer fabricated his charges. Officer

Spicer never testified against Remedio.          In fact, four other officers not

implicated by Officer Spicer’s July 30, 2014 federal indictment were also

involved in Remedio’s investigation. Additionally, Police arrested Remedio on

November 18, 2004, two years prior to the alleged conduct covered in the

federal indictment.       Therefore, the alleged newly-discovered facts were




____________________________________________


3 The trial court determined that the allegations of police misconduct covered
in the July 30, 2014 federal indictment encompassed activity between 2006
and 2012. Trial Court Opinion, 5/1/17, at 4.



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neither unknown nor undiscoverable; rather, they had not yet occurred.4

Brown, supra.

       Moreover, the trial court did not convict Remedio based on testimony or

evidence proffered by Officer Spicer; Remedio pleaded guilty. A voluntary

plea of guilty constitutes waiver of all nonjurisdictional defects and defenses.

Commonwealth v. Jones, 929 A.2d 205 (Pa. 2007).              Furthermore, the

government does not have to disclose impeachment evidence prior to entering

a plea agreement with a criminal defendant. U.S. v. Ruiz, 536 U.S. 622, 628

(2002); see also Commonwealth v. McClelland, 165 A.3d 19 n.7 (Pa.

Super. 2017) (“The United States Supreme Court has declined to require

prosecutors to disclose Brady material prior to a plea.”). A defendant can

validly waive a right even if he or she does not know “the specific detailed

consequences of invoking it.” Ruiz, 536 U.S. at 629.

       Remedio’s PCRA petition does not appeal to any argument that his guilty

plea was involuntary.5       Accordingly, even if Remedio had presented to the

PCRA court newly-discovered facts that could have warranted a grant of relief

to litigate what he characterizes as a sufficiency issue, he voluntarily waived
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4  Remedio does not allege Officer Spicer was involved in any relevant
transgressions that may have occurred before those covered in the July 30,
2014 federal indictment.

5 Remedio opines, “[I]t is telling that [he] was silent when asked at his plea
whether he was ‘pleading guilty because you’re guilty.’” Brief of Appellant, at
17, citing N.T. Guilty Plea, 11/21/05 at 11. We find it more telling that when
the Honorable Judge Genece E. Brinkley asked, “How do you plead,” Remedio
responded, “guilty.” Id. at 12.

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any right to do so when he pleaded guilty. See Commonwealth v. Miller,

431 A.2d 233, 236 (Pa. 1981) (“Conviction after a guilty plea is based not on

evidence in the hands of the Commonwealth . . . but rather on a defendant’s

admission in open court that he committed the crime.”). Therefore, Remedio

has suffered no prejudice as a result of Officer Spicer’s alleged criminal

behavior.

       As Remedio’s petition is facially untimely, and he has failed to meet his

burden of proof with regard to the newly-discovered fact exception to the time

bar, we find the PCRA court properly dismissed his PCRA petition on the basis

it was untimely filed.6

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/12/18




____________________________________________


6 Remedio claims that the PCRA court erred in denying his petition absent an
evidentiary hearing. However, it is well settled that the right to an evidentiary
hearing on a PCRA petition is not absolute, and the PCRA court may decline
to hold a hearing if the petitioner’s claim is patently frivolous with no support
in either the record or other evidence. See Commonwealth v. Walls, 993
A.2d 289 (Pa. Super. 2010). Here, we find no abuse of discretion by the PCRA
court in denying Remedio an evidentiary hearing.

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