J-S56037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

OSCAR ALCANTAR CINTORA,

                            Appellant                No. 1283 EDA 2017


                  Appeal from the PCRA Order March 23, 2017
                in the Court of Common Pleas of Chester County
               Criminal Division at No.: CP-15-CR-0001355-1994


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

MEMORANDUM BY PLATT, J.:                          FILED OCTOBER 06, 2017

        Appellant, Oscar Alcantar Cintora, appeals pro se from the dismissal of

his fifth petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

        We take the background of this case from the PCRA court’s March 23,

2017 order, and our independent review of the certified record. The criminal

charges against Appellant arose from an incident in March 1994 wherein he

and his brother burglarized a home, stabbed a male occupant to death, and

tied up and terrorized the murder victim’s mother and sister. On February

13, 1995, Appellant pleaded guilty to second-degree murder, burglary, and

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*   Retired Senior Judge assigned to the Superior Court.
J-S56037-17


two counts of robbery. In exchange, the Commonwealth withdrew multiple

charges, including first-degree murder.          The same day, the trial court

sentenced Appellant to a term of life without the possibility of parole for

murder of the second degree, and three concurrent terms of not less than

five nor more than ten years’ on the burglary and robbery charges.

Appellant did not file a direct appeal.

       Between April 1995 and June 2010, Appellant filed three PCRA

petitions, which the court denied.1 This Court affirmed the denials.

       On August 7, 2012,2 Appellant filed his fourth pro se PCRA petition in

which he argued that the holding of Miller v. Alabama, 567 U.S. 460

(2012),3 applied to him because he was under twenty-five at the time of the

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1  The Commonwealth also represents the following:        Appellant filed a
petition for a federal writ of habeas corpus on June 24, 2013, and an
application to file a second petition on January 27, 2017.             (See
Commonwealth’s Brief, at 12-13). The documents requested the same relief
as that in the fourth and fifth PCRA petitions. (See id. at 12-13). The
United States Court of Appeals for the Third Circuit denied the prayers for
relief on February 27, 2014 and February 15, 2017. (See id. at 13).

2  Appellant is pro se and incarcerated. Therefore, we deem his documents
filed as of when they are dated. See Commonwealth v. Patterson, 931
A.2d 710, 714 (Pa. Super. 2007).

3 In Miller, the United States Supreme Court “held that mandatory life
imprisonment without parole for those under the age of 18 at the time of
their crimes violates the Eighth Amendment’s prohibition on cruel and
unusual punishments.” Miller, supra at 479. On January 25, 2016, the
United States Supreme Court held that the holding of Miller announced a
substantive rule that is to be applied retroactively. See Montgomery v.
Alabama, 132 S.Ct. 718, 736 (2016).



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murder, and he therefore had an “immature brain.”                      (PCRA Petition,

8/07/12, at 1).       On November 9, 2012, the PCRA court dismissed the

petition after providing Appellant with appropriate notice. See Pa.R.Crim.P.

907(1). This Court affirmed the PCRA court’s dismissal on June 28, 2013,

and   our    Supreme      Court    denied      Appellant’s   review   request.   (See

Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa. Super. 2013), appeal

denied, 81 A.3d 75 (Pa. 2013)).

       On January 18, 2017, Appellant filed his fifth PCRA petition in which he

pleaded that Miller applied to him because he had discovered that he was

under eighteen at the time of the murder. The PCRA court issued notice of

its intent to dismiss the petition without a hearing on February 27, 2017.

See Pa.R.Crim.P. 907(1). Appellant responded on March 12, 2017, and the

court dismissed the petition on March 23, 2017. Appellant timely appealed.4

       Appellant raises two questions for this Court’s review:

       1.     Whether the PCRA [c]ourt erred as a matter of law in
       denying relief to [A]ppellant’s untimely petition, where he
       asserts that the recently obtained birth certificate, which proves
       he was [seventeen] years old at the time he committed his
       offense, for which he is serving a life sentence, entitles him for
       relief in light of Miller []?


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4 Pursuant to the PCRA court’s order, Appellant filed a timely statement of
errors complained of on April 28, 2017. The court filed an opinion on May 4,
2017 in which it directed this Court to its March 23, 2017 order and February
27, 2017 Rule 907 notice for the reasons supporting its decision. See
Pa.R.A.P. 1925.



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      2.   Whether the Miller[] claim raised in the instant appeal has
      been previously litigated or waived?

(Appellant’s Brief, at 2) (citation formatting provided).

      Before we are able to consider the merits of Appellant’s claims on

appeal, we must determine whether the PCRA court properly determined

that his petition was untimely with no exception pleaded and proven, and

that therefore it did not have jurisdiction to decide its merits. (See Order,

3/23/17, at 2 n.1; Rule 907 Notice, at unnumbered page 2 n.1).

            We review an order dismissing a petition under the PCRA
      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court
      and the evidence of record. We will not disturb a PCRA court’s
      ruling if it is supported by evidence of record and is free of legal
      error. This Court may affirm a PCRA court’s decision on any
      grounds if the record supports it. We 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. However, we
      afford no such deference to its legal conclusions. Further, where
      the petitioner raises questions of law, our standard of review is
      de novo and our scope of review is plenary.

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2013), appeal

denied, 64 A.3d 631 (Pa. 2013) (citations omitted).

             All PCRA petitions must be filed within one year of the date
      upon which the judgment of sentence became final, unless one
      of the statutory exceptions set forth in 42 Pa.C.S.A. §
      9545(b)(1)(i)-(iii) applies. The petitioner bears the burden to
      plead and prove an applicable statutory exception.           If the
      petition is untimely and the petitioner has not pled and proven
      an exception, the petition must be dismissed without a hearing
      because Pennsylvania courts are without jurisdiction to consider
      the merits of the petition.




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Commonwealth v. Hudson, 156 A.3d 1194, 1197 (Pa. Super. 2017)

(citation omitted).   “In addition, any petition attempting to invoke one of

these exceptions ‘shall be filed within 60 days of the date the claim could

have been presented.’ 42 Pa.C.S.A. § 9545(b)(2).” Id.

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

on March 15, 1995, at the expiration of the time for him to seek review of

his judgment of sentence in this Court.      See 42 Pa.C.S.A. § 9545(b)(3).

Therefore, he had one year from that date to file a petition for collateral

relief unless he pleaded and proved that a timing exception applied. See id.

at § 9545(b)(1)(i)-(iii).   Hence, Appellant’s current petition, filed nearly

twenty-two years later, on January 23, 2017, is untimely on its face unless

he pleads and proves one of the statutory exceptions to the time-bar.

      Section 9545 of the PCRA provides only three exceptions that allow for

review of an untimely PCRA petition: (1) the petitioner’s inability to raise a

claim because of governmental interference; (2) the discovery of previously

unknown facts that would have supported a claim; and (3) a newly-

recognized constitutional right. See id. When a petition is filed outside the

one-year time limit, petitioners must plead and prove the applicability of one

of   the   three   exceptions   to   the   PCRA   timing   requirements.   See

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


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Pennsylvania courts are without jurisdiction to consider the merits of the

petition.”) (citation omitted).

      Here, Appellant claims the applicability of all three of the statutory

exceptions.   (See Appellant’s Brief, at 5).     However, he admits that he

cannot avail himself of the newly recognized constitutional right exception

based on Miller because it violates section 9545(b)(2).      (See id. at 9).

Therefore, recognizing that his petition is untimely, Appellant candidly

observes that “another exception to the PCRA timeliness requirements must

apply to [the] petition[,]” and “[f]or that, [he] pleaded [] ‘newly discovered

facts’ [], and/or [] ‘governmental interference’ [].” (Id. at 5). Appellant’s

attempt to avail himself of these exceptions fails.

      [To] fall within the governmental interference exception, the
      petitioner must plead and prove the failure to previously raise
      the claim was the result of interference by government officials,
      and the information could not have been obtained earlier with
      the exercise of due diligence.          Section 9545(b)(1)(ii)’s
      [previously unknown facts] exception requires the facts upon
      which the [underlying] claim is predicated were not previously
      known to the petitioner and could not have been ascertained
      through due diligence. . . . [T]he exception set forth in
      subsection (b)(1)(ii) does not require any merits analysis of the
      underlying claim. Rather, the exception merely requires that the
      facts upon which such a claim is predicated must not have been
      known to appellant, nor could they have been ascertained by
      due diligence.

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008), cert.

denied, 555 U.S. 916 (2008) (citations and quotation marks omitted;

emphasis added).




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      In this case, Appellant argues that he had mistakenly believed he was

eighteen at the time that he murdered the victim in this case, but he

discovered the fact that he actually was seventeen when his mother

obtained his Mexican birth certificate in 2016. (See Appellant’s Brief, at 8-

11). However, this assertion is belied by Appellant’s admission that he knew

that the identification found on his person at the time of his arrest in 1994

was “false, and [was] based [on] inaccurate or incomplete information for

the purpose of finding employment.”       (Id. at 8-9; see also id. at 12).

Therefore, even assuming arguendo that Appellant did not know his precise

birthdate, we conclude that he failed to exercise due diligence to discover it

until over twenty years after his arrest. See Abu-Jamal, supra at 1268.

Hence, Appellant has failed to plead and prove the previously unknown fact

exception to the PCRA time-bar.   See id.

      Also, Appellant is not due relief on his governmental interference

argument. Pursuant to Pennsylvania Rule of Appellate Procedure 2119, an

appellant is required to provide pertinent law and discussion thereof.   See

Pa.R.A.P. 2119(a)-(b). However, Appellant fails to provide any relevant law

to support his claim that “the Commonwealth was obligated to notify the

Mexican Consulate” to verify the personal information contained in the

documents he possessed at the time of his arrest. (Appellant’s Brief, at 12).

Therefore, his argument is waived. See Pa.R.A.P. 2101; Pa.R.A.P. 2119(a)-

(b); Commonwealth v. Rayner, 153 A.3d 1049, 1062 (Pa. Super. 2016),


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appeal denied, 2017 WL 2957885 (Pa. filed July 11, 2017) (finding claim

waived for failure to provide pertinent authority).

       In addition, we agree with the PCRA court’s finding that his argument

would not merit relief. The court explained:

       [T]here is nothing in the record to indicate that the
       Commonwealth knew or should have known that [Appellant’s]
       birthdate was anything other than March 17, 1975, the date
       stated on the documents in [his] possession at the time of his
       arrest. In addition, [Appellant] testified in court that he was
       [nineteen] years old when he accepted the plea agreement. He
       also acknowledged he was [nineteen] years old in the written
       guilty plea colloquy. Accordingly, the Commonwealth was under
       no duty “to verify with the appropriate authorities [his] true and
       correct date of birth.”     If [Appellant] was, in fact, under
       [eighteen] when the crimes in question were committed, he
       should have raised this issue prior to accepting the plea. The
       Commonwealth did not interfere with [Appellant’s] ability to
       raise this issue sooner.         Accordingly, the government
       interference exception does not apply to this case.

(Order, 3/23/17, at 2 n.1).

       As previously stated, we agree with the court. Accordingly, because

Appellant has failed to plead and prove the applicability of an exception to

the timeliness requirements of the PCRA, the court properly dismissed his

petition as untimely. Rykard, supra at 1183; Johnston, supra at 1126.

Appellant’s issue lacks merit.5


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5 Because it is not material to our disposition, we need not address
Appellant’s second issue, in which he claims that the PCRA court erred in
making its alternative finding that his claim was previously litigated or
waived where he raised a different theory under Miller in his fourth PCRA
(Footnote Continued Next Page)


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      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2017




(Footnote Continued) _______________________

petition. (See Appellant’s Brief, at 3; see also Rule 907 Notice, at
unnumbered page 4 n.1).

       However, we briefly note the Commonwealth’s representation that
Appellant’s issue was previously litigated in the United States Third Circuit
Court of Appeals. (See Commonwealth’s Brief, at 13-14). We recognize
that this Court has observed that “an issue can be previously litigated in a
federal collateral attack” for purposes of the waiver provision of the PCRA.
Commonwealth v. Burkett, 5 A.3d 1260, 1271 (Pa. Super. 2010).
Nevertheless, because the documents filed in federal court are not in the
certified record, we are unable to review whether Appellant pleaded the
precise argument he now raises. See Commonwealth v. Rush, 959 A.2d
945, 949 (Pa. Super. 2008), appeal denied, 972 A.2d 521 (Pa. 2009) (“This
Court does not rely on items dehors the record[.]”). Hence, we make no
finding as to the Commonwealth’s argument.



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