J-S74010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
            v.                          :
                                        :
                                        :
 FELIX CALDERON                         :
                                        :
                  Appellant             :   No. 513 EDA 2017

                Appeal from the PCRA Order January 5, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0801121-1995


BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.

MEMORANDUM BY BOWES, J.:                      FILED DECEMBER 27, 2017

      Felix Calderon appeals from the January 5, 2017 order dismissing his

PCRA petition as untimely. We affirm.

      On January 31, 1977, a jury convicted Appellant of first-degree

murder, aggravated assault, and possession of an instrument of crime in

connection with the June 29, 1995 shooting death of Ricardo Rosario and

wounding of Michael Jennings on A and Indiana Streets in Philadelphia.

Witnesses reported at trial that Rosario threatened Appellant with a gun,

they struggled, and Appellant retrieved that weapon after Rosario dropped

it.   When Appellant obtained the firearm, Rosario began to run, but

Appellant chased him. After Rosario entered a vehicle occupied by Jennings,

Appellant followed him, and then fired multiple shots, killing Rosario and

wounding Jennings. Appellant raised a claim of self-defense at trial, which
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was rejected by the jurors.     Following Appellant’s convictions, the court

imposed a judgment of sentence of life imprisonment.

      While Appellant did not initially file a direct appeal, his right to do so

was reinstated nunc pro tunc.         We affirmed Appellant’s judgment of

sentence on December 31, 1999, and our Supreme Court denied allowance

of appeal on May 25, 2000. Commonwealth v. Calderon, 750 A.2d 365

(Pa.Super. 1999) (unpublished memorandum), appeal denied, 758 A.2d

1195 (Pa. 2000).    On April 24, 2001, Appellant filed his first petition for

PCRA relief, averring that he recently discovered a witness, Daniel Audefred,

who would have supported Appellant’s claimed self-defense.            After the

appointment of counsel, that petition was denied without a hearing.          On

appeal, we concluded that the witness’s testimony did not establish self-

defense since Mr. Audefred, consistent with the witnesses’ testimony at trial,

reported that the victim was unarmed and was chased by Appellant before

Appellant shot him. We affirmed the denial of PCRA relief. Commonwealth

v. Calderon, 841 A.2d 570 (Pa.Super. 2003) (unpublished memorandum),

appeal denied, 845 A.2d 816 (Pa. 2004).

      On March 15, 2004, Appellant filed a second PCRA petition, which was

dismissed as untimely. Appellant filed his third PCRA petition on January 13,

2006, which also was dismissed. We affirmed on appeal Commonwealth v.

Calderon, 943 A.2d 309 (Pa.Super. 2007) (unpublished memorandum).

Therein, we specifically held that, under the PCRA, “Appellant’s judgment of




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sentence was final on August 23, 2000, ninety days after our Supreme Court

denied allowance of appeal.” Id. at 5.

      Appellant filed the present PCRA pro se petition on June 14, 2016.

Therein, he averred that the petition was timely based upon his recent

discovery of new evidence, which consisted of evidence from Manual Rosa.

The petition contained Mr. Rosa’s certified statement, which indicated the

following. Rosario was a violent drug dealer, and, on the day of the incident,

Mr. Rosa observed the victim and Appellant engage in a physical altercation.

Thereafter, the victim fled, and Appellant chased him.     After the two men

rounded a corner, Mr. Rosa heard several gunshots. The PCRA court found

that the June 14, 2016 petition was untimely, and this appeal followed the

petition’s dismissal.

      Appellant is now represented by counsel, and he presents the following

contention: “Whether the PCRA Court committed an error of law when it

failed to give the pro-se PCRA petition a liberal construction and failed to

hold an evidentiary hearing to determine the merits of his claim that he

acted in self-defense and is actually innocent of first degree murder?”

Appellant’s brief at 2.   This Court reviews the “denial of PCRA relief to

determine whether the findings of the PCRA court are supported by the

record and free of legal error.” Commonwealth v. Roane, 142 A.3d 79, 86

(Pa.Super. 2016) (quoting Commonwealth v. Treiber, 121 A.3d 435, 444

(Pa. 2015)). It is now settled law that all PCRA petitions must be filed within

one year of the date a defendant’s judgment of sentence becomes final

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unless an exception to the one-year time restriction applies. 42 Pa.C.S. §

9545(b)(1). If a PCRA petition is untimely, “neither this Court nor the trial

court has jurisdiction over the petition.” Commonwealth v. Miller, 102

A.3d     988,     992     (Pa.Super.      2014)        (citation        omitted);       see   also

Commonwealth v. Spotz,              ___ A.3d                (Pa. CAP 731 and 734 filed

October 18, 2017); Commonwealth v. Chester, 895 A.2d 520, 522 (Pa.

2006).    The PCRA’s time constraints are not subject to tolling or other

equitable considerations. Spotz, supra.

       There     are    three   recognized      exceptions         to    this   one-year      time

requirement: (1) interference by government officials in the presentation of

the    claim;    (2)    newly-discovered       facts;    and       (3)    an    after-recognized

constitutional right. 42 Pa.C.S. § 9545(b)(1)(i-iii). The PCRA petitioner has

the burden of pleading and proving the existence of the exception invoked.

Spotz, supra.           We have previously held that Appellant’s judgment of

sentence became final on August 23, 2000, and that he had until August 23,

2001 to file a timely petition. The present petition is fifteen years late.

       Herein,    Appellant     invokes    the    newly-discovered              facts    exception

outlined in § 9545(b)(1)(ii). “To qualify for an exception to the PCRA's time

limitations under subsection 9545(b)(1)(ii), a petitioner need only establish

that the facts upon which the claim is based were unknown to him and could

not    have      been    ascertained      by     the     exercise         of    due     diligence.”

Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 2017). Our Supreme

Court has articulated that due diligence “does not require perfect vigilance

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and punctilious care, but merely a showing the party has put forth

reasonable effort to obtain the information upon which a claim is based.”

Commonwealth v. Cox, 146 A.3d 221, 230 (Pa. 2016) (citation and

quotation marks omitted).

      Appellant avers that he filed the present petition within days of

obtaining Mr. Rosa’s signed statement.        While Appellant may well have

recently discovered that Mr. Rosa was a witness, he nevertheless fails to

satisfy the due diligence aspect of the newly-discovered facts exception.

Appellant simply did not prove that he exercised            any diligence in

ascertaining Mr. Rosa’s existence and observation of some of the events on

the day of the crime.      Appellant did not plead or prove that he put forth

reasonable efforts to find Mr. Rosa, and his invocation of §9543(b)(1)(ii)

therefore fails.     Commonwealth v. Edmiston, 65 A.3d 339 (Pa. 2013)

(PCRA petitioner did not exercise due diligence in obtaining newly-discovered

evidence); see also Cox, supra.

      We also note that Mr. Rosa’s statement is merely repetitive of the

evidence presented at trial, and it did not establish that Appellant acted in

self-defense.      All the witnesses have indicated that Rosario initially was

armed and confronted Appellant, Rosario dropped his weapon during the

ensuing altercation, Appellant obtained the firearm, and the victim fled.

Appellant thereafter chased him with the gun and fired at Rosario while

Rosario was in a vehicle. Appellant thus decided to shoot the victims when




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Appellant readily could have retreated without harm. The PCRA court did not

abuse its discretion in dismissing the present PCRA petition, and we affirm.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/27/2017




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