J-S67032-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                 v.                            :
                                               :
  RUBEN RIVERA                                 :
                                               :
                       Appellant               :   No. 856 EDA 2018

                   Appeal from the PCRA Order March 2, 2018
                 in the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0000423-2011

BEFORE:      OTT, J., NICHOLS, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                       FILED JANUARY 17, 2019

       Ruben Rivera (Appellant) appeals pro se from the March 2, 2018 order,

which denied his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

       On August 27, 2012, Appellant pleaded guilty to murder in the third

degree. The trial court accepted Appellant’s guilty plea and imposed a term

of 20 to 40 years of incarceration. Appellant filed a post-sentence motion,

which the trial court denied on November 13, 2012. Appellant did not file a

direct appeal.

       On April 3, 2017, Appellant pro se filed a PCRA petition. In that petition,

Appellant claimed that he was arrested without a warrant, he pleaded guilty

involuntarily, and trial counsel was ineffective. See PCRA Petition, 4/3/2017,

____________________________________________


* Retired Senior Judge assigned to the Superior Court.
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at 2, 4-9 (pagination altered from original).      The PCRA court appointed

Attorney Sean Poll to represent Appellant. On October 25, 2017, Attorney Poll

filed a motion to withdraw as counsel, after concluding that the allegations of

ineffective assistance of counsel set forth by Appellant in his petition lacked

merit because Appellant did not timely file the petition and none of the

timeliness exceptions applied.1 After a hearing, on November 21, 2017, the

PCRA court permitted Attorney Poll to withdraw as counsel.

       On January 2, 2018, the PCRA court provided notice pursuant to

Pa.R.Crim.P. 907 of its intention to dismiss Appellant’s petition within 20 days

because it was untimely filed and Appellant had not pleaded or proved any

exception to the statutory time-bar. On January 11, 2018, Appellant pro se

filed a response, reiterating the claims contained in his PCRA petition and

attempting to invoke a timeliness exception. On March 2, 2018, the PCRA

court entered an order dismissing Appellant’s petition. Appellant timely filed

a notice of appeal, and both Appellant and the PCRA court complied with

Pa.R.A.P. 1925.

       On appeal, Appellant reiterates the same issues, but now attempts to

invoke a timeliness exception by claiming “after/newly discovered evidence

centers squarely upon his claim of ineffective assistance of counsel whose

____________________________________________


1  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)
(setting forth the procedures and requirements for withdrawing as counsel at
the post-conviction stage).



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failure to conduct the most basic of investigation into whether a warrant ever

existed” for his arrest.2 Appellant’s Brief at 4.

       In reviewing an appeal from the denial of PCRA relief, “[w]e must

examine whether the record supports the PCRA court’s determination, and

whether the PCRA court’s determination is free of legal error. The PCRA court’s

findings will not be disturbed unless there is no support for the findings in the

certified record.” Commonwealth v. Mikell, 968 A.2d 779, 780 (Pa. Super.

2009) (quoting Commonwealth v. Lawrence, 960 A.2d 473, 476 (Pa.

Super. 2008) (citations omitted)).             However, before we may consider the

merits, we must first determine whether Appellant timely filed his PCRA

petition, as neither this Court nor the PCRA court has jurisdiction to address




____________________________________________


2 “As a prefatory matter, although this Court is willing to construe liberally
materials filed by a pro se litigant, pro se status generally confers no special
benefit upon an appellant. Accordingly, a pro se litigant must comply with the
procedural rules set forth in the Pennsylvania Rules of [] Court.”
Commonwealth v. Freeland, 106 A.3d 768, 776 (Pa. Super. 2014) (internal
citations omitted). Our rules provide that “[b]riefs and reproduced records
shall conform in all material respects with the requirements of these rules as
nearly as the circumstances of the particular case will admit, otherwise they
may be suppressed, and, if the defects are in the brief or reproduced record
of the appellant and are substantial, the appeal or other matter may be …
dismissed.” Pa.R.A.P. 2101. Here, the defects in Appellant’s brief are
substantial and in violation of the rules. Significantly, Appellant’s brief does
not contain either a statement of questions involved which states “concisely
the issues to be resolved” or an argument section “divided into as many parts
as there are questions to be argued.” Pa.R.A.P. 2116, 2119. While we could
conclude that this deficiency requires the dismissal of this appeal, we decline
to do so because we are without jurisdiction to entertain the PCRA petition, as
discussed infra.

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the merits of an untimely-filed petition. Commonwealth v. Leggett, 16 A.3d

1144, 1145 (Pa. Super. 2011).

      Any PCRA petition, including second and subsequent petitions, must

either (1) be filed within one year of the judgment of sentence becoming final,

or (2) plead and prove a timeliness exception.         42 Pa.C.S. § 9545(b).

Furthermore, the petition “shall be filed within 60 days of the date the claim

could have been presented.” 42 Pa.C.S. § 9545(b)(2). “For purposes of [the

PCRA], a judgment [of sentence] 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.” 42 Pa.C.S. § 9545(b)(3).

      Appellant’s PCRA petition is patently untimely filed, as his judgment of

sentence became final in December 2012.           Recognizing this, Appellant

attempts on appeal to circumvent the statutory-time bar by baldly asserting

the newly-discovered facts exception pursuant to 42 Pa.C.S. § 9545(b)(1)(ii),

which provides that “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.” See Appellant’s Brief at 5, 7. Appellant’s purported newly-

discovered fact is that on either October 20, 2016 or January 31, 2017, he

learned that there was no warrant issued for his arrest. Id. at 7.

      Initially, we observe that “[a]ny claim not raised in the PCRA petition is

waived and not cognizable on appeal.”      Commonwealth v. Washington,

927 A.2d 586, 601 (Pa. 2007); see also Pa.R.A.P. 302(a) (stating “issues not

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

appeal”). Appellant did not raise a timeliness exception in his pro se PCRA

petition.   Compare Appellant’s Brief at 5, 7 with Pro Se PCRA Petition,

4/3/2017.     Thus, we cannot consider such claim on appeal.                  See

Commonwealth v. Lauro, 819 A.2d 100, 103 (Pa. Super. 2003) (“[I]ssues

not raised in a PCRA petition cannot be considered on appeal.”).

      Moreover, the fact that Appellant asserted a newly-discovered fact

exception in his pro se response to the PCRA court’s notice of intent to dismiss

does not preserve it. See Appellant’s Response to Notice of Intent to Dismiss,

1/11/2018, at ¶2. As this Court has explained:

      The purpose behind a Rule 907 pre-dismissal notice is to allow a
      petitioner an opportunity to seek leave to amend his petition and
      correct any material defects, see Commonwealth v. Williams,
      [] 782 A.2d 517, 526 ([Pa.] 2001), the ultimate goal being to
      permit merits review by the PCRA court of potentially arguable
      claims. The response is an opportunity for a petitioner and/or his
      counsel to object to the dismissal and alert the PCRA court of a
      perceived error, permitting the court to “discern the potential for
      amendment.” Id. at 527. The response is not itself a petition and
      the law still requires leave of court to submit an amended petition.
      See Pa.R.Crim.P. 905(A). Hence, we conclude that a response to
      a notice of intent to dismiss is not a second or subsequent petition.

Commonwealth v. Rykard, 55 A.3d 1177, 1189 (Pa. Super. 2012) (footnote

omitted). Appellant did not seek leave of court to file an amended petition,

nor did he file an amended petition to include a timeliness exception.

Accordingly, any such assertion is waived on appeal.

      Nonetheless, even if Appellant had not waived the statutory time-bar

claim, he still has failed to assert facts which satisfy the exception.


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            Our Supreme Court has previously described a petitioner’s
       burden under the newly-discovered fact exception as follows.

             [S]ubsection (b)(1)(ii) has two components, which
             must be alleged and proved. Namely, the petitioner
             must establish that: 1) “the facts upon which the
             claim was predicated were unknown” and 2) “could
             not have been ascertained by the exercise of due
             diligence.” 42 Pa.C.S. § 9545(b)(1)(ii) (emphasis
             added).

       Commonwealth v. Bennett, [] 930 A.2d 1264, 1272 ([Pa.]
       2007). Due diligence demands that the petitioner take reasonable
       steps to protect his own interests. A petitioner must explain why
       he could not have learned the new fact(s) earlier with the exercise
       of due diligence. This rule is strictly enforced.

Commonwealth v. Medina, 92 A.3d 1210, 1216 (Pa. Super. 2014) (some

citations and quotation marks omitted).

       Instantly, the certified record at docket number CP-39-CR-0000423-

2011 contains a warrant for Appellant’s arrest, filed on December 16, 2010.

Thus, Appellant’s assertion fails because not only is his claim predicated upon

a false “fact” that is not new, but he did not exercise due diligence in

ascertaining such information. While our Supreme Court has held that pro se

PCRA petitioners, who are in prison, cannot be presumed to know information

that is of public record for the purpose of determining whether a fact is

unknown under the exception set forth at subsection 9545(b)(1)(ii),

Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017), Appellant is still

required to act with due diligence. See Commonwealth v. Staton, 184 A.3d

949, 957 (Pa. 2018) (noting the ruling in Burton does not obviate a prisoner’s

duty   to   demonstrate   he   exercised    due   diligence   under   42   Pa.C.S.

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§ 9545(b)(1)(ii)).   Even though Appellant sought, under the Pennsylvania

Right-To-Know Law, a copy of his arrest warrant at said docket number, he

did not make such request until 2016, nearly six years after it was issued.

Appellant has not offered any explanation as to why it took him nearly six

years to write to various government offices to inquire about the existence of

his arrest warrant, which does in fact exist and is included in his certified

record.     Thus, Appellant has failed to invoke the newly-discovered facts

exception.

      Accordingly, the PCRA court properly denied Appellant’s petition as

untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/17/19




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