J-S39028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JUAN RIVERA,

                            Appellant                No. 2032 MDA 2015


                 Appeal from the PCRA Order November 3, 2015
               in the Court of Common Pleas of Lancaster County
               Criminal Division at Nos.: CP-36-CR-0003081-2010
                            CP-36-CR-0003082-2010
                            CP-36-CR-0003164-2010


BEFORE: STABILE, J., PLATT, J.*, and STRASSBURGER, J.*

MEMORANDUM BY PLATT, J.:                                   FILED MAY 24, 2016

        Appellant, Juan Rivera, appeals pro se from the dismissal of his first

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

§§ 9541-9546, as untimely. We affirm.1

        We take the following facts from the PCRA court’s opinion and our

independent review of the certified record.      On July 19, 2011, Appellant

pleaded guilty to burglary, theft by unlawful taking, receiving stolen


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*
    Retired Senior Judge assigned to the Superior Court.
1
  On March 31, 2016, Appellant filed an application for relief in this Court in
the form of a request for production of documents. Appellant’s application
for relief is denied.
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property, and retail theft.2        The charges related to thefts committed by

Appellant at a home and local jewelry stores between May 6 and May 8,

2010.     On July 19, 2011, the court sentenced Appellant to an aggregate

term     of   not   less   than   two-and-one-half   nor   more   than   six   years’

imprisonment pursuant to the negotiated plea agreement. No direct appeal

was filed.

        On March 16, 2015, Appellant filed a pro se request for the production

of documents and other discovery related to his case,3 which he titled as a

writ of mandamus. The court treated the document as a first PCRA petition,
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2
    18 Pa.C.S.A. §§ 3502(a), 3921(a), 3925(a), and 3929(a)(1), respectively.
3
    Specifically, Appellant stated in his request:

        1.     Please order arresting officer to bring forth all evidence
        that will show a requisite element of a valid arrest, and search
        and seizure[;]
        2.     Also bring forth all evidence that will place me in
        possession of all that was[] obtained in the cases above
        mentioned[;]
        3.     Also bring forth all evidence that will place me in the scene
        of the crime, or crimes[s] for the above mentioned cases[;]
        4.     Please bring forth all fact[s] that will show an ongoing
        investigation from the day of said incidents, in affidavits, to the
        present[;]
        5.     Please bring forth the full discovery packets pertaining to
        each one of the above stated cases[; and]
        6.     Please bring forth any and all court filings, as in
        transcripts, filed motions, waivers, submittal of evidence, and
        etc., for all the above mentioned cases.

(Writ of Mandamus, 3/16/15, at 1-2 (unnecessary capitalization and
apostrophes omitted); see also Commonwealth’s Brief, at 8).




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and appointed counsel who filed a motion to withdraw and Turner/Finley4

“no merit” letter on May 14, 2015, to which Appellant responded on June 1,

2015. On October 13, 2015, the court filed notice of its intent to dismiss

Appellant’s petition without a hearing.          See Pa.R.Crim.P. 907(1).   On

November 3, 2015, the court granted counsel’s application to withdraw and

dismissed Appellant’s petition as untimely. Appellant timely appealed. 5

       Appellant raises five issues for this Court’s review:

       I.    Did the court commit an abuse of discretion or commit an
       error of law by not issuing the 1925(b) order, statement of
       [errors] complained [of?]

       II.   Did the court commit an abuse of discretion or commit an
       error of law by not granting relief, or failing to act on
       [Appellant’s] claim of actual innocence[?]

       III. Did the court commit an abuse of discretion or commit an
       error of law by allowing counsel[‘]s Finley letter, and
       subsequent motion to withdraw from filing an amended P.C.R.A.
       [petition] to be granted[?]

       IV.   Did the court commit an abuse of discretion or commit an
       error of law by not responding to [Appellant’s] request for formal
       D.N.A. testing pursuant to 42 Pa.C.S.A. § 9543.1(c)(3), an
       action that incorporates a 1945(b) issue pursuant to the P.A.
       Innocence Protection Act, that [Appellant] requested through
       counsel, and mentioned on his response to Finley letter[?]


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4
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
5
 Appellant filed a statement of errors complained of on appeal on December
3, 2015. See Pa.R.A.P. 1925(b). The court filed an opinion on December 8,
2015. See Pa.R.A.P. 1925(a).



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     V.    Did the court commit an abuse of discretion or commit an
     error of law by not disclosing evidence to the court or to
     defense, that would have exonerated [Appellant] ([n]amely
     D.N.A. evidence) at the time of the proceedings[?]

(Appellant’s Brief, at 4) (some argument omitted).

            This Court examines PCRA appeals in the light most
     favorable to the prevailing party at the PCRA level. Our review
     is limited to the findings of the PCRA court and the evidence of
     record[.] Additionally, [w]e grant great deference to the factual
     findings of the PCRA court and will not disturb those findings
     unless they have no support in the record. In this respect, we
     will not disturb a PCRA court’s ruling if it is supported by
     evidence of record and is free of legal error. However, we afford
     no deference to its legal conclusions. [W]here the petitioner
     raises questions of law, our standard of review is de novo and
     our scope of review is plenary.

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014), appeal

denied, 101 A.3d 785 (Pa. 2014) (citations and quotation marks omitted).

     Here, in his original post-conviction filing with the PCRA court,

Appellant sought the production of discovery related to his case. (See “Writ

of Mandamus,” 3/16/15, at 1-2). Then, in response to appointed counsel’s

Turner/Finley letter, Appellant alleged his innocence for the first time, and

requested DNA testing pursuant to 42 Pa.C.S.A. § 9543.1. (See Response

to Turner/Finley Letter, 6/01/15, at 2-4).

     The PCRA court found that Appellant’s petition was untimely and that

he failed to plead and prove any exception to the PCRA time-bar. (See Rule

907 Notice, 10/13/15, at 1). We agree.

     It is well-settled that:




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      A PCRA petition, including a second or subsequent one, must be
      filed within one year of the date the petitioner’s judgment of
      sentence became final, unless he pleads and proves one of the
      three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
      judgment becomes final at the conclusion of direct review by this
      Court or the United States Supreme Court, or at the expiration
      of the time for seeking such review.             42 Pa.C.S.[A.] §
      9545(b)(3).        The PCRA’s timeliness requirements are
      jurisdictional; therefore, a court may not address the merits of
      the issues raised if the petition was not timely filed.       The
      timeliness requirements apply to all PCRA petitions, regardless of
      the nature of the individual claims raised therein. The PCRA
      squarely places upon the petitioner the burden of proving an
      untimely petition fits within one of the three exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations

and footnote omitted).

      In the case sub judice, Appellant’s judgment of sentence became final

on August 18, 2011, at the expiration of the time to file a direct appeal in

this Court.   See 42 Pa.C.S.A. § 9545(b)(3).     Therefore, he had one year

from that date, until August 18, 2012, to file a petition for collateral relief

unless he pleaded and proved that a timeliness exception applied. See 42

Pa.C.S.A. §§ 9545(b)(1)(i)-(iii). Hence, Appellant’s current petition, filed on

March 16, 2015, is untimely on its face, and we lack jurisdiction to consider

its merits, unless he pleads and proves one of the statutory exceptions to

the time-bar.

      Section 9545 provides that the court can still consider an untimely

petition where the petitioner successfully proves that:

            (i) the failure to raise the claim previously was the result
      of interference by government officials with the presentation of


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      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.

Id.   Further, the Pennsylvania Supreme Court has repeatedly stated that it

is an appellant’s burden to plead and prove that one of the above-

enumerated exceptions applies.      See, e.g., Commonwealth v. Abu-

Jamal, 941 A.2d 1263, 1268 (Pa. 2008), cert. denied, 555 U.S. 916 (2008).

Importantly, “exceptions to the time bar must be pled in the PCRA petition,

and may not be raised for the first time on appeal.”    Commonwealth v.

Burton, 936 A.2d 521, 525 (Pa. Super. 2007), appeal denied, 959 A.2d 927

(Pa. 2008) (citations omitted); see also Pa.R.A.P. 302(a) (“Issues not

raised in the lower court are waived and cannot be raised for the first time

on appeal.”).

      In this case, Appellant’s post-conviction request for production of

documents did not allege any timeliness exception.           (See “Writ of

Mandamus,” 3/16/15, at 1-2).      Therefore, the court properly found that

Appellant’s petition was untimely where he failed to plead and prove a

timeliness exception. See Abu-Jamal, supra at 1268.




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      We also note that the PCRA expressly limits discovery in non-capital

cases.    See 42 Pa.C.S.A. § 9545(a) (“No court shall have authority to

entertain a request for any form of relief in anticipation of the filing of a

[PCRA] petition . . . .”); Pa.R.E. 902(E)(1) (“Except as provided in paragraph

(E)(2), no discovery shall be permitted at any stage of the [PCRA]

proceedings, except upon leave of court after a showing of exceptional

circumstances.”). “The denial of a request for post-conviction discovery is

reviewed for an abuse of discretion. Discovery in PCRA proceedings cannot

be   used     as   an   excuse   for   engaging    in   a   ‘fishing   expedition.’”

Commonwealth v. Edmiston, 65 A.3d 339, 353 (Pa. 2013), cert. denied,

134 S.Ct. 639 (2013) (citation omitted).

      Here, Appellant’s exhaustive request failed to demonstrate any

exceptional circumstances to support the production of discovery, and

appears to be an impermissible “fishing expedition.”. Id.; (see also fn. 3,

supra; Writ of Mandamus, 3/16/15, at 1-2). Accordingly, we conclude that

the court did not abuse its discretion in finding his request lacked merit, in

addition to its being untimely. See Edmiston, supra at 353.

      Also, without leave to file an amended petition, Appellant raised a new

issue via his response to the Turner/Finley letter.             See Pa.R.Crim.P.

905(A).     Specifically, he alleged his innocence and requested DNA testing

pursuant to 42 Pa.C.S.A. § 9543.1. (See Appellant’s Response to Counsel’s

Turner/Finley Letter, 6/01/15, at 2, 4).          However, because “petitioners


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may    not   automatically   ‘amend’   their   PCRA   petitions   via   responsive

pleadings[,]” Appellant waived his request for DNA testing on the basis of his

alleged innocence. Commonwealth v. Baumhammers, 92 A.3d 708, 730

(Pa. 2014) (concluding issue waived where it was “not raised in Appellant’s

PCRA petition, and no request was made to amend the petition to include

it[.]”).

       Moreover, Appellant is not entitled to relief pursuant to Section 9543.1

of the PCRA because he does not fall under any of the limited circumstances

in which a post-conviction request for DNA testing is permitted.

       Specifically, Section 9543.1(a)(2) provides, in pertinent part:

       If the evidence was discovered prior to the applicant’s
       conviction, the evidence shall not have been subject to the DNA
       testing requested because the technology for testing was not
       in existence at the time of the trial or the applicant’s counsel
       did not seek testing at the time of the trial in a case where a
       verdict was rendered on or before January 1, 1995, or the
       applicant’s counsel sought funds from the court to pay for
       the testing because his client was indigent and the court refused
       the request despite the client’s indigency.

42 Pa.C.S.A. § 9543.1(a)(2) (emphases added).

       In the case sub judice, the DNA evidence was obtained by the police in

May, 2010; trial occurred in July, 2011; and Appellant’s counsel did not

request funds to pay for testing. Therefore, Appellant is not entitled to relief

pursuant to Section 9543.1. See id.

       We also observe that, even if Appellant fell into one of the limited

circumstances provided in Section 9543.1(a)(2), he would not be entitled to


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relief. A panel of this Court, after fully discussing the language of Section

9543.1, concluded that “[it] clearly precludes that section’s application to

petitioners seeking to challenge convictions resulting in guilty pleas by

reference to DNA evidence.” Williams v. Erie Cty. Dist. Attorney’s Office,

848 A.2d 967, 970 (Pa. Super. 2004), appeal denied, 864 A.2d 530 (Pa.

2004).     Therefore, Appellant would not be entitled to relief because he

pleaded guilty, even if one of the limited circumstances in Section

9543.1(a)(2) applied to him.

       Finally, we observe that Appellant argues in this Court for the first

time that he is entitled to the application of the governmental interference

and previously unknown facts exceptions to the PCRA time-bar.             (See

Appellant’s Brief, at 1, 9-10); 42 Pa.C.S.A. § 9545(b)(ii), (iii). However, this

argument is waived for our review where he failed to raise it in the PCRA

court. See Pa.R.A.P. 302(a).6

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6
  Moreover, for the sake of completeness, we observe that Appellant’s
argument for application of the exceptions on the basis of the
Commonwealth’s alleged failure to advise him of the existence of DNA
evidence would not merit relief where this information was a matter of public
record that could not be “unknown,” because it was mentioned expressly in
his certified record. See Commonwealth v. Chester, 895 A.2d 520, 523
(Pa. 2006); (see also Affidavit of Probable Cause, 8/05/10, at 1 ¶ 3).
Further, other than arguing that he did not see this document, (see
Appellant’s Brief, at 10), Appellant provides absolutely no evidence that he
exercised due diligence in discovering the DNA information contained
therein. (See id.). Appellant’s argument fails. See Chester, supra at
523; see also Commonwealth v. Lyons, 833 A.2d 245, 251 (Pa. Super.
2003), appeal denied, 879 A.2d 782 (Pa. 2003) (noting that, “although this
(Footnote Continued Next Page)


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      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/2016




                       _______________________
(Footnote Continued)

Court is willing to construe liberally materials filed by a pro se litigant, pro se
status generally confers no special benefit upon an appellant.”); Pa.R.A.P.
2101.



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