J. S54031/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
RUDIS MOREIRA,                              :
                                            :
                          Appellant         :     No. 507 EDA 2015

                  Appeal from the PCRA Order January 29, 2015
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-0804142-1992

BEFORE: BOWES, PANELLA, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED OCTOBER 21, 2015

        Appellant, Rudis Moreira, appeals pro se from the order entered in the

Philadelphia County Court of Common Pleas, dismissing his Post Conviction

Relief Act1 (“PCRA”) petition and all supplemental petitions as untimely.

Appellant contends the trial court has jurisdiction to correct an illegal

sentence at any time. We affirm.

        On January 17, 1994, Appellant was convicted of murder in the third

degree, recklessly endangering another person (“REAP”), possessing an

instrument of crime, and carrying a firearm on a public street. On June 21,

1995, Appellant was sentenced to an aggregate term of fifteen to thirty

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
J.S54031/15


years’ imprisonment.    This Court affirmed his judgment of sentence on

September 22, 1997.     Commonwealth v. Moreira, 704 A.2d 164 (Pa.

Super.   1997)   (unpublished   memorandum).      The   Supreme    Court   of

Pennsylvania denied Appellant’s Petition for Allowance of Appeal on May 28,

1998. Commonwealth v. Moreira, 724 A.2d 349 (Pa. 1998).

     On May 2, 2005, Appellant filed his first pro se PCRA petition. Counsel

was appointed and filed an amended PCRA petition.          The PCRA court

dismissed his amended PCRA petition as untimely on July 13, 2006.       This

Court affirmed the dismissal. Commonwealth v. Moreira, 2012 EDA 2006

(unpublished memorandum) (Pa. Super. Oct. 16, 2007).          The Supreme

Court denied allocatur on May 14, 2008. Commonwealth v. Moreira, 952

A.2d 676 (Pa. 2008).

     On January 22, 2009, Appellant filed a second pro se PCRA petition.2

On February 16, 2011, he filed a PCRA petition.3        On June 20, 2014,


2
  We note that Appellant does not address the claim raised in the second pro
se PCRA petition, viz., that the petition was timely based upon the after-
discovered evidence exception to the time limitation for the filing of a PCRA
petition. See 42 Pa.C.S. § 9545(b)(1)(ii). As a threshold matter, we
consider the claim because it implicates the jurisdiction of this Court. See
Commonwealth v. Callahan, 101 A.3d 118, 121 (Pa. Super. 2014). This
claim was raised by Appellant in his first PCRA petition. The PCRA court
dismissed the petition as untimely and this Court affirmed on appeal. See
Moreira, 2012 EDA 2006 at *6-7 (holding that claims that two witnesses,
Robert Harris and Nelson Hernandez, lied at the time of trial would not have
changed the outcome of the case). Appellant also does not address the
claim raised in his February 16th PCRA petition in which he invoked the after
discovered evidence exception. As to this claim, after careful consideration
of the record and the decision of the Honorable Jeffrey P. Minehart, we find



                                    -2-
J.S54031/15



no relief is due and adopt the PCRA court’s well-reasoned opinion. See
PCRA Ct. Op., 4/15/15. at 3-4 (unpaginated) (holding two unsigned letters
allegedly sent by Mr. John McLaughlin contained broad speculation devoid of
any factual basis failed to invoke timeliness exception).
3
 We note that Appellant did not request permission from the PCRA court to
amend his second pro se PCRA petition. In Commonwealth v. Roney, 79
A.3d 595 (Pa. 2013), our Supreme Court addressed the issue of subsequent
PCRA filings.

        Pursuant to our Rules of Criminal Procedure, a PCRA
        petitioner may amend his or her PCRA petition with leave
        of the court:

           Rule 905. Amendment and Withdrawal of
           Petition for Post–Conviction Collateral Relief.

           (A) The judge may grant leave to amend or withdraw
           a petition for post-conviction collateral relief at any
           time. Amendment shall be freely allowed to achieve
           substantial justice.

        Pa.R.Crim.P. 905(A) . . . .

Id. at 615. In Roney, the PCRA court

        did not grant [the a]ppellant leave to amend his PCRA
        petition via his February 26, 2009 filing; did not implicitly
        or explicitly accept the February 26, 2009 filing as an
        amendment       to   [a]ppellant’s PCRA      petition;  and
        accordingly, did not address the claims raised in the
        February 26, 2009 filing. Therefore, Appellant’s claims in
        this issue have been waived.

Id. at 616. In the case at bar, although Appellant did not request leave to
amend his PCRA petition, the PCRA court addressed the claims raised in the
subsequent filings. The PCRA court referred to the February 16th petition as
an amended petition. See PCRA Ct. Op. at 3. Thus, we conclude the court
implicitly accepted the subsequent filings as amendments to the second pro
se PCRA petition. See id.; Cf. Commonwealth v. Lark, 746 A.2d 585, 588
(Pa. 2000) (holding that PCRA court cannot entertain new PCRA petition
when prior petition is still under review on appeal).



                                      -3-
J.S54031/15


Appellant filed a “Motion for Modification of Sentence.” On August 8, 2014,

he filed a “Motion to Vacate Illegal Sentence and to Impose Legal Sentence.”

On October 6, 2014, Appellant filed a “Motion to Vacate Illegal Sentence and

to Impose Legal Sentence.” On January 29, 2015, upon consideration of his

second pro se PCRA petition and all supplemental petitions and motions, the

court dismissed the PCRA petition as untimely. This timely appeal followed.

Appellant filed a Pa.R.A.P. 1925(b) statement of errors complained of on

appeal and the PCRA court filed a responsive opinion.

      Appellant raises the following issues for our review:

         A. Does not a trial court retain jurisdiction to correct an
         illegal sentence at any time?

         B. Does not a sentencing court that imposes an illegal
         sentence that is patently erroneous on its face retain the
         jurisdiction to vacate that sentence without regard to the
         thirty-day rule (42 Pa.C.S. § 5505) and without regard to
         the Post Conviction Relief Act?

         Equal protection of the laws requires that the Appellant
         receive relief pursuant to 42 Pa.C.S.A. § 5505;
         Commonwealth v. Holmes, 933 A.2d 57 (2007). A
         court may correct an illegal sentence.

Appellant’s Brief at 8.

      Appellant argues that the court may correct an obvious and patent

error in sentencing at any time. Appellant’s Brief at 13. Appellant contends

his sentence was illegal because the standard range sentence for third

degree murder was 48 to 120 months’ imprisonment and the court

sentenced him to the maximum of 10 to 20 years’ imprisonment. Id. at 16.



                                     -4-
J.S54031/15


He avers the court incorrectly sentenced him to six to twelve months’

imprisonment on the nine counts of REAP, while it stated that it carried a

standard sentence of zero to six months in prison. Id. at 16-17. He avers

the deadly weapons enhancement sentence of twelve to twenty-four months’

imprisonment was an obvious and patent mistake. Id. at 18.

     Before examining the merits of Appellant’s claims, we consider

whether the PCRA court had jurisdiction to entertain the underlying PCRA

petition. On appellate review of a PCRA ruling, “we determine whether the

PCRA court’s ruling is supported by the record and free of legal error.”

Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008).

               We . . . turn to the time limits imposed by the PCRA,
        as they implicate our jurisdiction to address any and all of
        [an a]ppellant’s claims. To be timely, a PCRA petition
        must be filed within one year of the date that the
        petitioner’s judgment of sentence became final, unless the
        petition alleges and the petitioner proves one or more of
        the following statutory exceptions:

           (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;

           (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.



                                    -5-
J.S54031/15


        42 Pa.C.S. § 9545(b)(1).

           We emphasize that it is the petitioner who bears the
        burden to allege and prove that one of the timeliness
        exceptions applies. In addition, a petition invoking any of
        the timeliness exceptions must be filed within 60 days of
        the date the claim first could have been presented. 42
        Pa.C.S. § 9545(b)(2). A petitioner fails to satisfy the 60–
        day requirement of Section 9545(b) if he or she fails to
        explain why, with the exercise of due diligence, the claim
        could not have been filed earlier.

Id. at 719-20 (emphases added) (some citations omitted).

     In Commonwealth v. Jackson, 30 A.3d 516 (Pa. Super. 2011), this

Court considered “[w]hether a PCRA court has jurisdiction to correct

allegedly illegal sentencing orders absent statutory jurisdiction under the

PCRA.” Id. at 518. This Court opined:

        [The defendant’s] “motion to correct illegal sentence”
        is a petition for relief under the PCRA. . . . We have
        repeatedly held that . . . any petition filed after the
        judgment of sentence becomes final will be treated as a
        PCRA petition. Commonwealth v. Johnson, 803 A.2d
        1291, 1293 (Pa. Super. 2002). That [the defendant] has
        attempted to frame his petition as a “motion to correct
        illegal sentence” does not change the applicability of the
        PCRA. See Commonwealth v. Guthrie, 749 A.2d 502,
        503 (Pa. Super. 2000) (appellant’s “motion to correct
        illegal sentence” must be treated as PCRA petition).

           We base this conclusion on the plain language of the
        PCRA, which states that “[the PCRA] provides for an action
        by which . . . persons serving illegal sentences may obtain
        collateral  relief.”     42   Pa.C.S.A.     §  9542;    see
        Commonwealth v. Hockenberry, [ ] 689 A.2d 283, 288
        ([Pa. Super.] 1997) (legality of sentence is cognizable
        issue under PCRA). Further, the Act provides that “[t]he
        [PCRA] shall be the sole means of obtaining collateral relief
        and encompasses all other common law and statutory
        remedies for the same purpose. . . .” 42 Pa.C.S.A. §


                                    -6-
J.S54031/15


        9542; see Commonwealth v. Ahlborn, 699 A.2d 718,
        721 ([Pa.] 1997) (petition filed under the PCRA cannot be
        treated as a request for relief under the common law);
        Commonwealth v. Peterkin, [ ] 722 A.2d 638, 640–41
        ([Pa.] 1998) (statutory remedy not available where claim
        is cognizable under PCRA). Therefore, [the defendant’s]
        “motion to correct illegal sentence” is a PCRA
        petition and cannot be considered under any other
        common law remedy.

          Because [the defendant’s] claim is cognizable
        under the PCRA, [he] must comply with the time
        requirements of section 9545. . . .

Id. at 521 (emphases added).

     Appellant’s judgment of sentence became final on August 26, 1998,

ninety days after the Pennsylvania Supreme Court denied his petition for

allowance of appeal. See 42 Pa.C.S. § 9545(b)(3) (providing “a judgment

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.”).

Appellant generally had until August 26, 1999, to file his PCRA petition. See

42 Pa.C.S. § 9545(b)(1) (providing PCRA petition must be filed within one

year of date judgment becomes final).      Therefore, because he filed his

second PCRA petition on January 22, 2009, and subsequently filed

supplemental petitions beyond this date, they are patently untimely.

     Appellant’s claim that the trial court has jurisdiction to correct his

illegal sentence at any time, thus divesting him of the obligation to comply

with the timeliness requirements of the PCRA, is meritless. See Jackson,



                                    -7-
J.S54031/15


30 A.3d at 521-23.     Thus, the PCRA court did not err in dismissing his PCRA

petition, and all supplemental petitions, as untimely.    See Marshall, 947

A.2d at 719-20.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/21/2015




                                     -8-
                                                                                                Circulated 09/22/2015 03:11 PM




                                IN THE COURT OF COMMON PLEAS
                           FIRST JUDICIAL DISTRJCT OF PENNSYLVANIA

                                                                                                        F~L D
                               TRIAL DIVISION-CRIMINAL SECTION

     COMMONWEALTH OF PENNSYLVANIA
                                                                                                          APR 1 5 2015
                                                                                                Grimlnal Hppeals Unit
                            V.
                                                                                              First .Judicia\ Dlstrict of PA


     RUDIS MOREIRA                                                                CP-51-CR-0804142-1992
                                                                                            CP-5l-CR--0804142.1992 comr,:i._v_ Moreira, Rudis
                                                                                                           Memorandum Opinion

                                          MEMORANDUM OPINION

     MINEHART,J                                                                                     I
                                                                                                  II I I II7282104511
                                                                                                           I II111111111111111

            This Court hereby dismisses the instant Post Conviction Relief Act Petition filed on
                                                           1
    January 22, 2009 for the reasons set forth below.

                                 I.      PROCEDURAL HISTORY

           On January 17, 1994, a jury presided over by the Honorable John J. Poserina found

    Petitioner guilty of First Degree Murder, eight counts of Recklessly Endangering Another

    Person, Possessing an Instnunent of Crime, and Carrying a Firearm on a Public Street. The

    evidence established that on July 19, 1992, while riding in a car with co-defendant, John Walker,

    Petitioner fired a gun at two crowds of people and struck and killed one Robert Burns. On June

    21, 1995, the trial court imposed an aggregate sentence of] 5 to 30 years of imprisonment.

    Petitioner filed an appeal, and on September 22, 1997, the Superior Court affirmed the judgment

of sentence. The Pennsylvania Supreme Court denied his allowance of appeal on May 28, 1998.

           On May 2, 2005, Petitioner filed his first prose PCRA petition. Counsel was appointed,

and an Amended Petition was filed. After review, on July 13, 2006, the petition was dismissed

1
 The Order dismissing the instant petition was issued more than twenty days after Petitioner was served with notice
of the forthcoming dismissal of his Post Conviction Relief Act petition. Pa.R.Crim.P. 907.
                                                                                  Circulated 09/22/2015 03:11 PM




  as untimely. On October I 6, 2007, the Superior Court affirmed the dismissal. On May 14, 2008,

  our Supreme Court denied allocatur.

         On January 22, 2009, Petitioner filed the instant prose PCRA petition, his second. After

 conducting an extensive and exhaustive review of Petitioner's filings, record, and applicable case

 law, this Court found that Petitioner's petition for post conviction collateral relief was untimely

 filed. Therefore, this Court did not have jurisdiction to consider Petitioner's PCRA petition.

                                    II.     DISCUSSION

         Petitioner's conviction became final in 1998. After a conviction becomes final, a

 petitioner has one year to file a post conviction petition. Therefore, Petitioner's January 22, 2009

 petition is patently untimely unless it properly invoked one of the exceptions to the one-year

 limitation. The three exceptions as enumerated in 42 Pa.C.S.A. §9545 (b)( I )(i)-(iii) 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;

        (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.

        Petitioner stated that his claims came under both the "government interference" exception

and "after-discovered evidence" exception to the timeliness provision, arguing that the

Commonwealth had failed to disclose deals made with two witnesses, Nelson Hernandez and

Robert Harris, in exchange for their testimony at trial. Petitioner stated that subsequent

investigation revealed that both witnesses had lied about having a record, and after testifying, the

Commonwealth showed leniency to both Mr. Hernandez and Mr. Harris regarding their pending
                                                                                    Circulated 09/22/2015 03:11 PM




  criminal charges.    Petitioner argued that this evidence would have changed the outcome of the

  trial.

            Pursuant to 42 Pa.CS.A. § 9543(a)(3), to be eligible for post conviction relief, a

 petitioner must plead and prove an issue has not been previously litigated. An issue has been

 previously litigated if "the highest appellate court in which the petitioner could have had review

 as a matter ofright has ruled on the merits of the issue." 42 Pa.CS.A.§ 9544(a)(2). In the

 instant case, the alleged after-discovered evidence regarding Nelson Hernandez and Robert

 Harris was raised in his first PCRA petition. His claims were dismissed, the Superior Court

 affirmed the dismissal of this claim, and our Supreme Court denied allocatur. Therefore, as this

 issue had been litigated, Petitioner was riot eligible for relief on this claim.

           In his amended petition filed February 16, 2011, Petitioner yet again attempted to invoke

the after-discovered evidence exception in the form of two letters, allegedly sent to him by a Mr.

John McLaughlin. The first letter dated January 24, 2011 stated that the DA had threatened and

coerced witnesses; it is signed with the initial "R.G." The second letter dated January 27, 2011

also stated that the witnesses had been coerced and there had been prosecutorial conduct.

Petitioner claimed this information entitled him to a hearing.

           To invoke a timeliness exception, Petitioner bears the burden to plead and prove the

exception. To successfully invoke after-discovered evidence exception, the Petitioner must

establish that: (I) evidence has been discovered after trial and it could not have been obtained at,

or prior to, trial through reasonable diligence; (2) evidence is not cumulative; (3) evidence is not

being used solely to impeach credibility; and (4) evidence would likely compel different verdict.

Commonwealth v. Foreman, 55 A.3d 532 (Pa. Super.2012).
                                                                                              Circulated 09/22/2015 03:11 PM




          The instant claim failed to satisfy these elements.       Petitioner    presented   unsigned letters

 allegedly from Mr. McLaughlin        that contained     only broad speculation     and did not state any facts.

 The letters stated that the writer still thought Petitioner     was the one who committed          the crime,

 and then asserted an opinion on various claims Petitioner          could assert to attempt to fight his

 conviction.   These letters do not state the basis of the conclusions       drawn, nor does it specify

 which alleged facts were unknown        or why, with due diligence,      the underlying      facts were unable

 to be discovered   by Petitioner.   As to Petitioner's assertion that he is entitled to a hearing, our

 courts have held that a hearing can be denied         if the petitioner's claim is patently frivolous and is

 without a trace of support in either the record or from other evidence. Commonwealth v. Jordan,

 772 A.2d IO 11 (Pa. Super. 200 I). A review of the record found his claims to be meritless, and

 moreover, Petitioner failed to successfully invoke one of the exceptions to the timeliness

provision. Therefore, this Court lacked jurisdiction to review his claim, which includes granting

an evidentiary hearing.

          On June 20, 2014, Petitioner filed a petition entitled "Motion for the Correction of an

Illegal Sentence," claiming that he was subject to an illegal sentence. Specifically, Petitioner

argued that Judge Poserina mistakenly increased his sentence for eight counts of REAP from the

standard range of 0-6 months to 6-12 months for each count. Petitioner claimed this was a patent

and obvious mistake in sentencing and cited to Commonwealth v. Holmes, 933 A.2d 57 (2007)

for the proposition that a claim of an illegal sentence can be raised at any time, outside the

strictures of the PCRA.

       Upon careful review, Petitioner's claim was deemed meritless. A review of the record

found no mistake in sentencing, much less an obvious one. The judgment of sentence listed his
                                                                                   Circulated 09/22/2015 03:11 PM




 sentence for REAP as 6-12 months for each of the eight counts, which is well within the

 statutory range. Therefore, Petitioner's sentence was not illegal on its face.

         Petitioner's argument could also be construed as either attacking the discretionary aspects

 of sentencing or alleging that his sentence exceeded the statutory maximum.       However, neither

 construction warranted relief. A claim challenging the discretionary aspects of sentence is not

 cognizable under the PCRA. Commonwealth v. Wrecks, 934 A.2d 1287 (Pa. Super. 2007). This

 claim should have been properly raised in a post-trial motion or during direct appeal.     Further,

 although a claim that the imposed sentence exceeds the statutory maximum is eligible for relief

 under the PCRA pursuant to 42 Pa. CS.A. § 9543(a)(2)(vii), it must still fulfill the time-bar

 requirements. As Petitioner did not invoke one of the exceptions to the timeliness provision,

there is no jurisdiction to address the merits of his claim. Commonwealth v. Jackson, 30 A.3d

516 (Pa. Sup. 20 I I) (holding that the trial court did not have jurisdiction to consider defendant's

motion to correct illegal sentence since his petition was in fact an untimely PCRA petition and

Petitioner failed to invoke an exception to the timeliness provision).

        Upon review, Petitioner failed to demonstrate that government officials obstructed the

presentation of his claims; failed to offer after-discovered evidence which was previously

unknown to him and could not have been obtained by the exercise of due diligence; and did not

allege a violation of a constitutional right recognized after the one-year limitation and held to

apply retroactively. Accordingly, Petitioner's petition was properly dismissed as untimely and,

respectfully, it is suggested that the ruling be affirmed.




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