J-S66006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellee              :
                                         :
              v.                         :
                                         :
 WILFREDO SANTIAGO                       :
                                         :
                   Appellant             :       No. 2958 EDA 2017

             Appeal from the PCRA Order November 15, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0503641-2003


BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.:                   FILED DECEMBER 20, 2018

     Appellant, Wilfredo Santiago, appeals nunc pro tunc from the order

entered in the Philadelphia County Court of Common Pleas, which denied as

untimely his second petition filed under the Post-Conviction Relief Act

(“PCRA”) at 42 Pa.C.S.A. §§ 9541-9546. We affirm.

     We briefly summarize the facts of this case as follows. In the late hours

of January 17, 2003, Appellant appeared at his wife’s place of employment

and argued with her. During the course of the arguments, Appellant struck

his wife and was asked to leave. Although the police were called, Appellant

was not arrested. Later that night, the police were dispatched in response to

three domestic violence calls; and Appellant was apprehended for breaking

into his wife’s home. On November 21, 2003, a jury convicted Appellant of

aggravated assault, attempted burglary, and resisting arrest.      The court
J-S66006-18


sentenced Appellant on January 20, 2004, to an aggregate of 21 to 42 years’

incarceration. This Court affirmed the judgment of sentence on July 20, 2005,

and the Supreme Court denied allowance of appeal on April 18, 2006. See

Commonwealth v. Santiago, 883 A.2d 694 (Pa.Super. 2005) (unpublished

memorandum), appeal denied, 587 Pa. 691, 897 A.2d 455 (2006).

      The PCRA court opinion has outlined the subsequent procedural history

of this case, so we have no need to restate it. We add only that after the

court reinstated Appellant’s right to appeal from the denial of his second PCRA

petition, on August 25, 2017, he timely filed his notice of appeal the same

day. The court ordered Appellant on September 11, 2017, to file a concise

statement of errors complained of on appeal. Appellant timely complied on

September 28, 2017.

      Appellant raises the following issues on appeal:

         WAS [APPELLANT]’S MANDATORY MINIMUM SENTENCE
         UNCONSTITUTIONAL WHEN THE COURT AGGREGATED
         [APPELLANT’S]   SENTENCE   BASED    UPON  THE
         PROSECUTOR’S    INFLAMMATORY,   BIAS[ED], AND
         PREJUDICIAL REMARKS?

         WAS TRIAL COUNSEL INEFFECTIVE FOR FAILURE TO CALL
         [APPELLANT]’S WIFE TO TESTIFY THAT [APPELLANT] DID
         NOT [INJURE] HER?

         [WERE APPELLANT]’S RIGHTS UNDER THE DUE PROCESS
         CLAUSE OF THE FOURTEENTH AMENDMENT VIOLATED IN
         DENYING HIS RIGHTS TO HAVE A JURY OF HIS PEERS…?

         DID  THE   PROSECUTOR   COMMIT    PROSECUTORIAL
         MISCONDUCT IN THREATENING [APPELLANT]’S WIFE WITH
         ARREST WHICH PREVENTED HER FROM TESTIFYING?


                                     -2-
J-S66006-18


          DID  THE   PROSECUTOR COMMIT  PROSECUTORIAL
          MISCONDUCT WHEN HE MADE PREJUDICIAL REMARKS
          DURING SENTENCING?

(Appellant’s Brief at IV).1

       After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Glenn B.

Bronson, we conclude the PCRA court opinion fully and properly addresses

why Appellant’s issues are unreviewable.         (See PCRA Court Opinion, filed

November 7, 2017, at 3-5) (finding: judgment of sentence became final on

[Monday] July 17, 2006, upon expiration of time for Appellant to file petition

for writ of certiorari in U.S. Supreme Court; Appellant filed second PCRA

petition on July 25, 2016, which was patently untimely; Appellant invoked

newly-recognized-constitutional-right exception, citing Foster v. Chatman,

___ U.S. ___, 136 S.Ct. 1737, 195 L.Ed.2d 1 (2016); in Foster, however,

Supreme Court simply applied Batson v. Kentucky, 476 U.S. 79, 106 S.Ct.

1712, 90 L.Ed.2d 69 (1986) to facts in Foster; Foster did not announce new

constitutional right and declare it retroactive, so Appellant failed to meet cited

exception to PCRA time bar).          We agree and affirm the court’s order that

denied Appellant’s second PCRA petition as untimely.

       Order affirmed.



____________________________________________


1 Several of these issues were previously raised and addressed in Appellant’s
first PCRA petition, such as, the failure of counsel to call Appellant’s wife to
testify at trial and the claims of prosecutorial misconduct.

                                           -3-
J-S66006-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/18




                          -4-
)
)
J                                                                                        Circulated 12/04/2018 10:15 AM
)

)
I
,.
I
                                                                                                     FILED
,.                                  IN THE COURT OF COMMON PLEAS
                               FIRST JUDICIAL DISTRICT OF PENNSYLVANIA      NOVO 7 2017
                                        CRIMINAL TRIAL DIVISION        Office of Judicial Records
                                                                                             Appeals/Post Trial
            COMMONWEALTH OF                                                     CP-51-CR-0503641-2003
            PENNSYL V ANJA

                    v.

             WILFREDO SANTIAGO                        111111111\11\ Ill II\
                                                             8026169291
                                                                   - ,,._   -   .

                                                      OPINION

            BRONSON, J                                                          November 7, 2017


            On November 21, 2003, following a Jury trial before the Honorable John Chiovero,
                                  I
                                  '
     defendant Wilfredo Santiago was convicted of aggravated assault (18 Pa.C.S. § 2702(a)(l)),

     attempted burglary (18 Pa.c.s: §§ 901, 3502), and resisting arrest ( 18 Pa.C.S. § 5104). On

     January 20, 2004, the Court imposed an aggregate sentence of twenty-one to forty-two years

     incarceration. On July 12, 2005, the Superior Court affirmed the judgment of sentence, and on
                                        I


     April I 8, 2006, the Pennsylvania Supreme Court denied allocatur.
                                        '

            On January 8, 2007, defendant filed a prose petition (''First Petition") under the Post

     Conviction Relief Act (''PCRA ..). As Judge Chiovero had retired from the bench, this PCRA
                                    \
                                    I

     matter was reassigned to the undersigned trial judge. On November 25, 2008, PCRA counsel
                                    I
     filed an Amended Petition on defendant's behalf. On November 13, 2009, this Court issued

     notice, pursuant to Pa.R.Crim :P. 907 ("'907 Notice"), of its intention to dismiss the petition

     without a hearing. Defendant I filed a response to the Court's 907 Notice on December 9, 2009.
                                    I
                                    I

     The Court dismissed defendant's First Petition on December 18, 2009. The Superior Court
affirmed the dismissal on June 15.2011, and on January 25, 2012. the Pennsylvania Supreme
                                 I




Court denied allocatur.

        On July 25, 2016, defendant filed a second prose PCRA petition ("'Second Petition").

On October 26, 2016, the Court ruled that defendant's Second Petition was untimely and issued a

907 Notice. Defendant filed a response to the Court's 907 Notice on November 14, 2016. On

November 15, 2016, the Court dismissed defendant's Second Petition.

        On March 13, 2017. defendant filed a third prose PCRA petition (''Third Petition"),

seeking reinstatement of his appellate rights nunc pro tune from the dismissal of his Second

Petition. On July 17, 2017, Demetra Mehta, Esquire was appointed to represent defendant.
                              I
Following an evidentiary hearing, on August 25, 2017, the Court granted defendant's Third
                                     1
Petition, reinstating his appellate rights.
                                     I
                                     I


        Defendant has now appealed the Court's dismissal of his Second Petition, alleging that:

1) his mandatory minimum sentence was manifestly excessive and unconstitutional; 2) trial
                                     i

counsel was ineffective; 3) his right
                                '
                                      to have a .jury of his peers was violated; 4) the prosecutor

engaged in misconduct when he threatened to arrest defendant's wife if she did not testify; 5) the

prosecutor engaged in misconduct when he made prejudicial remarks against defendant during

sentencing; and 6) the trial court abused its discretion in sentencing defendant. Statement of

Matters Complained of on Appeal Pursuant to Pa.R.App.P. 1925(8) (''Statement of Matters") at

, 5(1)-(VI). For the reasons set forth below, defendant's Second Petition is untimely and the

order dismissing his petition should be affirmed.




                                                                                                     ----······-·--·-·-




                                                  2
                                             I. FACTUAL BACKGROUND

               The facts of this case are summarized in the Superior Court's opinion of July 12, 2005,

        affirming the trial court's judgment of sentence on direct appeal. See Superior Court Opinion,

        07/12/2005 at pp. 1-4.

                                                   JI. DISCUSSION

               An appellate court's review of a PCRA court's grant or denial of relief'r'is limited to

        determining whether the court's findings are supported by the record and the court's order is

        otherwise free of legal error " Commonwealth v Yager, 685 A.2d 1000, I 003 (Pa. Super. 1996)

        (citing Commonwealth v Legg, 669 A.2d 389. 391 (Pa. Super. 1995)) The reviewing court "will

        not disturb findings that are supported by the record." Id

               Under the PCRA, all petitions must be tiled within one year of the date that judgment on

        the case becomes final. 42 Pa.C.S. § 9545(b)(l), see also Commonwealth v. Bennett, 930 A.2d

        1264, 1267 (Pa. 2007). This time limit is jurisdictional, and a court may only review an untimely

        petition if one of the three statutory exceptions to the timeliness requirement applies. 42 Pa.C.S.

        § 9545(b)(l ); Commonwealth     1:   Murray, 753 A 2d 201, 203 (Pa. 2000). Furthermore, the

        statutory exceptions are themselves subject to a timeliness requirement, and must be invoked
                                       I


        "within sixty days of the date the claim could have been presented." 42 Pa.C.S. § 9545(b)(2);

        see Benne/I, 930 A.2d at 1267-68.

                Defendant" s Judgment of sentence became final on July 17, 2006, ninety days after the

        Pennsylvania Supreme Court denied allocatur in defendants direct appeal. Therefore, defendant

        had until July 17, 2007 to timely file a PCRA petition. As defendant did not file his Second
                                         I


        Petition until July 25, 2016, ov'rr nine years later, his petition is clearly untimely. Accordingly,
-----�-------------··----··--·--·--·-----··---··--··----··---·-------------
        defrodant roust plead and prove th<1t one of the three statutory exceptions to the timeliness



                                                           3
requirement applies, and he must have filed his petition within sixty days of when the claim

could have been presented 42 Pa.C.S. § 9545(b)(1)-(b)(2)

        In his Statement of Matters, defendant appears to assert that his Second Petition was

timely filed under the newly recognized constitutional right exception, as he notes that the

petition was filed within sixty days of the decision of the United States Supreme Court in Foster

v' Chat,;,.a.,W, I 36 S.Ct. 1737 (2016). See Statement of Matters at ,r 2. To properly rely upon this

e1ception, defendant must estahlish that "the right asserted is a constitutional right that was

recognized by the Supreme Court of the United States or [the Pennsylvania Supreme Court] "

Commonwealth v Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002); 42 Pa.C.S. § 9545(b)(l)(iii)

Furthermore, defendant must establish that "the right 'has been held' by that court to apply

retroactively." Abdul-Salaam. 812 A 2d at 501 (quoting 42 Pa.C.S. § 9545).

       In Foster, the United States Supreme Court reiterated its holding in Batson v Kentucky,
                                  '
476 U.S. 79 (1986), that it is u�constitutional to use a peremptory challenge to strike a potential

juror for a discriminatory reason, Foster, 136 S.Ct. at 1747-48. The Court neither announced a

new constitutional right, nor held any such right to be retroactive. Accordingly, the newly
                                  1




recognized constitutional right exception does not apply. See Abdul-Salaam, 812 A.2d at 501;

42 Pa.C.S. § 9545(b)(l )(iii).




                           ----·----·-------·---······-··--·-·----·---···--·--------·--·----·-------··--·------···--····-······-·---------··-··---




                                                         4
                                         Ill. CONCLUSION

        The record establishes that defendant's PCRA Petition was untimely filed, and that none

of the exceptions to the PCRA time-bar is applicable. As a result, this Court was without

jurisdiction to reach the merits of defendant's claims. Murray, 753 A.2d at 203. For that reason,

the Court's order dismissing defendant's PCRA Petition should be affirmed.



                                                                              BY THE COURT:


                                                                        �
                                                                              GLENN B. BRONSON, J.




                                  ·----···----···-····-·----------·-·--·-··----·-·---··---····-   ------------




                                                         5
         Commonwealth v. Wilfredo Santiago                                    CP-51-CR..0503641-2003
         Type of Order: 1925(a) Opinion

                                             PROOF OF SERVICE

         I hereby certify that I am this day servmg the foregoing Court Order upon the person(s), and in
         the manner indicated below, which service satisfies the requirements of Pa.R.Crim.P. l 14:


         Defense Counsel/Party:
                                       Wilfredo Santiago
                                       FQ-8423
                                       SCI Frackville
                                       1111 Altamont Blvd.
                                       Frackville, PA 17931

         Type of Service:      ()Personal() First Class Mail (X) Other, please specify: Certified Mail


         District Attorney:
                                       Hugh J. Burns, Jr , Esquire
                                       Chief, Appeals Unit
                                       Philadelphia District Attorney's Office
                                       Three South Penn Square
                                       Philadelphia, PA 19107
                                        I




         Type of Service       ( ) Personal (X) First Class Mat! ( ) Other, please specify·


         Additional Counsel/Party:
                                       Joseph D. Seletyn, Esquire
                                       Prothonotary        ·
                                       Office of the Prothonotary- Superior Court
                                       530 Walnut Street, Suite 315
                                       Philadelphia, PA 19106

         Type of Service:      () Personal (X) First Class Mail () Other, please specify.



         Dated: November 7, 2017

   K_.,.,�----·--···--····-·-··-··------·-·---------·---------·---·-·--·---·---------
___

         Law Clerk to Hon. Glenn B. Bronson
