J-S14026-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JESUS GARCIA                               :
                                               :
                       Appellant               :   No. 1540 EDA 2018

                   Appeal from the PCRA Order April 27, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0220721-1991


BEFORE:      LAZARUS, J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY NICHOLS, J.:                               FILED APRIL 05, 2019

        Appellant Jesus Garcia appeals pro se from the order dismissing his

second Post Conviction Relief Act1 (PCRA) petition as untimely.        Appellant

argues that the PCRA court erred in dismissing his petition without a hearing

and asserts that he established all three time-bar exceptions contained in 42

Pa.C.S. 9545(b)(1)(i)-(iii). He further claims that he was entitled to appointed

counsel for an evidentiary hearing. We affirm.

        We adopt the PCRA court’s facts and procedural history.2 See PCRA Ct.

Op., 7/13/18, at 1-6.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541-9546.

2 Although Appellant filed the instant pro se petition in 2010 and numerous
pro se materials thereafter, there is no explanation in the record for the nearly
J-S14026-19



       On appeal, Appellant claims that the PCRA court erred in dismissing his

petition as untimely. Appellant’s Brief at 4. Specifically, he argues that he

properly raised exceptions to the PCRA time bar by alleging the previously

unknown       facts,    governmental           interference,   and   newly-recognized

constitutional rights exceptions under Section 9545(b)(1)(i)-(iii). Id. He also

claims that his due process rights were violated because he raised questions

of disputed facts, but the PCRA court failed to appoint counsel or hold an

evidentiary hearing on his claims. Id.

       Following our careful review of the record, the parties’ briefs, and the

well-reasoned opinion of the PCRA court, we affirm on the basis of the PCRA

court’s decision that Appellant filed a facially untimely PCRA petition and failed

to plead and prove the applicability of any exception to the PCRA time-bar.3
____________________________________________


seven-year delay between Appellant’s initial filing and the assignment of this
matter to the PCRA court.

3  In support of his petition, Appellant attached three witness statements
alleging that Appellant was intoxicated on the night of the crime. The PCRA
court found that two of the statements, and the claims derived therefrom,
were submitted beyond the sixty-day window mandated by section
9545(b)(2). Therefore, the PCRA court dismissed Appellant’s claims on that
basis.

On October 24, 2018, the General Assembly amended section 9545(b)(2), and
extended the time for filing a petition from sixty days to one year from the
date the claim could have been presented. See 2018 Pa. Legis. Serv. Act
2018-146 (S.B. 915), effective December 24, 2018.             However, the
amendment applies only to claims arising one year before the effective date
of this section, December 24, 2017, or thereafter. Accordingly, because
Appellant’s claims were raised in 2010, the amendment does not apply.




                                           -2-
J-S14026-19



See PCRA Ct. Op., 7/13/18, at 1-6. Additionally, because Appellant failed to

raise any genuine issues of fact regarding an applicable statutory exception,

the PCRA court properly dismissed Appellant’s petition without a hearing and

without appointing counsel.4         See Pa.R.Crim.P. 904(D), 907(1); see also

Commonwealth v. Hart, 199 A.3d 475, 482 (Pa. Super. 2018) (stating that

an evidentiary hearing is required where a petitioner presents genuine issues

of material fact).

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/5/19




____________________________________________


4  In his brief, Appellant argues that he is entitled to relief under Miller v.
Alabama, 567 U.S. 460 (2012), which prohibited the issuance of mandatory
life sentences without parole for juvenile offenders. Although Appellant was
over eighteen at the time of the instant offense, he relies on this Court’s en
banc review of Commonwealth v. Lee, __ A.3d ___, 2019 PA Super 64, at
*9 (Pa. Super. 2019) (en banc), which was pending at the time Appellant filed
his brief. However, we recently issued our decision in Lee, which confirmed
that “age is the sole factor in determining whether Miller applies to overcome
the PCRA time-bar,” and that “[u]ntil the United States Supreme Court or the
Pennsylvania Supreme Court recognizes a new constitutional right in a non-
juvenile offender, we are bound by precedent” on the issue. Lee, __ A.3d
___, 2019 PA Super 64, at *9.

                                           -3-
0017_Opinion
                                                                                                          Circulated 03/28/2019 11:53 AM




                                       COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                                           FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                                   CRIMINAL TRIAL DIVISION


               COMMONWEALTH OF PENNSYLVANIA

                                  v.

               JESUS GARCIA                                                               CP-51-CR-0220721-1991
                                                                                          1540 EDA 2018

                                                                 OPINION

               GENECE E. BRINKLEY, J.                                                     Date: July 13, 2018

                         This appeal comes before the Superior Court following the dismissal of a Post Conviction

               Relief Act ("PCRA")1 petition filed on July 28, 2010. On April 27, 2018, this court dismissed his

               PCRA petition for the reasons set forth below.

                     I. PROCEDURAL HISTORY

                         Jesus Garcia (hereinafter referred to as "Petitioner") and a co-defendant were arrested and

               subsequently charged in connection with the 1991 fatal shooting of Paul Terrell. On March 24, 1992,

               following a jury trial presided over by the Honorable John J. Poserina Jr., Petitioner was convicted of

               first-degree murder, robbery, possession of an instrument of crime, and criminal conspiracy. On March

               18, 1993, the trial court sentenced Petitioner to an aggregate term of life imprisonment. Following a

               direct appeal, the Superior Court affirmed the judgment of sentence on April 12, 1994.2 Petitioner did

               not file a petition for allowance of appeal with the Pennsylvania Supreme Court.

                         On January 6, 1997, Petitioner filed his first prose PCRA petition. Mitchell S. Strutin, Esquire

               was appointed, and subsequently filed an amended petition. The PCRA court denied relief on

               December 16, 1997. The Superior Court affirmed the order denying relief on December 31, 1998. 3 The


               1
                   42 Pa. Cons. Stat. §§ 9541-9546.                                                  CP-51-CR-0220721-1991 Comm. v. Garcia, Jesus
               2                                                                                                       Opinion
                   Commonwealth v.Garcia, 645 A.2d 888 (Pa. Super. 1994) (unpublished memorandum).


                                                                                                          Ill llll I I Ill I II I llll
               3
                   Commonwealth v.Garcia, 736 A.2d 7 (Pa. Super. 1998) (unpublished memorandum).
                                                                         I
                                                                                                                   8136730341
Pennsylvania Supreme Court denied Petitioner's petition for allowance of appeal on October 20,

1999.4

          On July 28, 2010, Petitioner filed the instant pro se PCRA petition, his second attempt to obtain

post-conviction relief. Pursuant to Pennsylvania Rule of Criminal Procedure 907, Petitioner was served

notice of the PCRA court's intention to dismiss his petition on March 26, 2018. Petitioner submitted a

response to the Rule 907 notice on April 4, 2018. On April 27, 2018, the PCRA court dismissed his

PCRA petition as untimely without exception. On May 14, 2018, the instant notice of appeal was

timely filed to the Superior Court.

    II.    DISCUSSION

          Petitioner's current PCRA petition challenging, inter alia, the constitutionality of his sentence

and the effectiveness of his trial counsel was untimely filed and none of the exceptions to the time-bar

are applicable. The timeliness of a PCRA petition is a jurisdictional requisite. Commonwealth v.

Robinson, 12 A.3d 4 77 (Pa. Super. 2011 ). A PCRA petition, including a second or subsequent petition,

shall be filed within one year of the date the underlying judgment becomes final. 42 Pa. Cons. Stat. §

9545(b )(1 ). A judgment is deemed 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." Id. § 9545(b)(3).

          Petitioner's judgment of se11:tence became final for PCRA purposes on or about May 12, 1994,

thirty days after the Superior Court affirmed the judgment of sentence and the time for seeking

allocatur in the Pennsylvania Supreme Court expired. See id.; Pa.R.A.P. 1113(a). His prose petition,

filed on July 28, 2010 (including supplemental petitions), was therefore untimely by approximately

fifteen years.5 See 42 Pa. Cons. Stat.§ 9545(b)(l).


4
  Commonwealth v.Garcia, 745 A.2d 1218 (Pa. 1999).
s Because Petitioner's judgment of sentence became final prior to the January I, 1996 effective date of the 1995
amendments to the PCRA, he had one year from that date to file a timely first PCRA petition. However, because the
                                                       2
         Despite the one-year deadline, the PCRA permits the late filing of a petition where a petitioner

alleges and proves one of the three narrow exceptions to the mandatory time-bar under 42 Pa. Cons.

Stat. § 9545(b)(l)(i)-(iii). To invoke an exception, a petition must plead and prove:

         (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.

Id. § 9545(b)( 1 )(i)-(iii).

         In an attempt to satisfy the governmental interference and/or previously-unknown fact

exceptions, § 9545(b)(1 )(i), 6 (ii)," Petitioner appended signed statements from three individuals;

including one medical doctor, detailing Petitioner's intoxicated state on the evening in question in

1991. See PCRA petition, 7/28/10 at Exhibits A-C. According to Robert Bermudez's statement,

Petitioner was "very drunk and high" at the time of the shooting, a fact which Bermudez conveyed to a

detective two days later. See id. at Exhibit A. According to Juan Soto's statement, Petitioner was

"really messed up" sometime between 9:00 p.m. and 12:00 a.m. on the evening in question. See id. at

Exhibit B. Lastly, Petitioner appended a preliminary report authored by Pietro Miazzo, M.D., which




petition at issue is Petitioner's second petition, he does not qualify for this grace period. See generally, Commonwealth v.
Crawley, 739 A.2d 108 (Pa. 1999).
6 The
       "governmental interference" exception, § 9545(b)(l)(i) requires a petitioner to plead and prove: (l) the failure to
previously raise the claim was the result of interference by government officials and (2) the information on which he relies
could not have been obtained earlier with the exercise of due diligence. Commonwealth v. Williams, 105 A.3d 1234, 1240
(Pa. 2014) (citing Commonwealth v. Abu-Jamal. 941 A.2d 1263, 1268 (Pa. 2008)).
7 The timeliness
                  exception set forth in Section 9545(b)(l)(ii) requires a petitioner to demonstrate he did not know the facts
upon which he based his petition and could not have learned those facts earlier by the exercise of due diligence.
Commonwealth v. Bennett, 930 A.2d 1264, 1271 (Pa. 2007). Due diligence demands that the petitioner take reasonable
steps to protect his own interests. Commonwealth v. Carr, 768 A.2d 1164, 1168 (Pa. Super. 2001). A petitioner must
explain why he could not have learned the new fact(s) earlier with the exercise of due diligence. Commonwealth v.
Breakiron, 78 l A.2d 94, 98 (Pa. 200 l ).                 ·
                                                              3
opined that Petitioner was inebriated to such a degree that he lacked the specific intent to kill. See id. at

Exhibit C.

          At the outset, Petitioner failed to demonstrate that either Soto's affidavit or Miazzo's report

were submitted within the sixty-day window mandated by subsection 9545(b)(2).8 Specifically, Soto's

affidavit and Miazzo's report were dated March 2, 2008 and March 17, 2009 respectively. Petitioner

presented both documents, and the claims derived therefrom, in his PCRA petition dated July 28, 2010,

well outside the sixty-day window for each statement.

          The remaining statement authored by Bermudez, although presented within the relevant sixty-

day window, neither substantiated a purported Brady' violation nor presented facts that were

previously unknown to Petitioner. To the contrary, Petitioner has been aware of his intoxicated state on

the evening in question for more than two decades; his detailed confession to police included a specific

admission to being drunk. See PCRA court opinion, 2/13/98 at 8, 12. Additionally, Soto provided a

statement to Petitioner's attorney in 1997 detailing the array of narcotics Petitioner consumed on the

evening in question.'? Furthermore, even if the contents of Berrnudez's statement were previously

unknown, Petitioner failed to demonstrate that they were previously unascertainable with the exercise

of due diligence. According to Bermudez, he conversed with Petitioner just prior to the shooting. See

PCRA petition, 7/28/10 at Exhibit A. Petitioner did not even allege, however, that Bermudez was

either unknown to him or that he doesn't recall speaking with him. Thus, Petitioner failed to establish

that Bermudez's version of events was unascertainable prior to their happenstance prison meeting in

2010.11


8 See 42 Pa. Cons. Stat.§ 9545(b)(2) ("Any petition invoking an exception provided in paragraph (I) shall be filed within
60 days of the date the claim could have been presented.").
9
  Brady v. Maryland, 373 U.S. 83 (1963).
IO See Appellant's Brief, 1998 WL 34285512 (Pa. Super. 1998), at 23.
11 Even if Petitioner overcame the statutory time-bar, he failed to demonstrate that Bermudez's statement warranted relief
as newly-discovered evidence. The trial judge determined that the evidence overwhelmingly established that Petitioner
committed first-degree murder. See PCRA court opinion, 2/13/98 at 8. More specifically, the court concluded that despite
Petitioner's assertion that he was drunk, the additional details he provided to police did not establish that he lost his
                                                           4
         Additionally, Petitioner appended a solicitation from Cheryl J. Strum, Esquire, titled

"Newsletter: Federal and State February 2017" detailing the scope of her practice and speculating that

Davila v. Davis, 137 S.Ct. 2058 (2017), a case then pending before the United States Supreme Court,

may be helpful to some inmates. See Supplemental petition, 4/3/17 at 9 (unpaginated). Based upon the

newsletter, Petitioner argued that legal decisions constitute facts for purposes of subsection

9545(b)(l)(ii). See id at 6 (unpaginated). Petitioner alternatively claimed that his discovery of the

applicability of an actual-innocence claim constitutes a new fact. See Supplemental petition, 3/17/17 at

19 (unpaginated). Petitioner's claims are meritless. Neither judicial decisions nor the Petitioner

learning the applicable law constitute facts for purposes of subsection 9545(b )(1 )(ii). See

Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013).

         Finally, Petitioner attempted to satisfy the newly-recognized constitutional right exception, §

9545(b)(l)(iii),12 by invoking the new right announced in Miller v. Alabama, 132 S.Ct. 2455 (2012).

Although the United States Supreme Court in Montgomery v. Louisiana 136 S.Ct. 718 (2016), as

revised (Jan. 27, 2016) ruled that Miller has retroactive effect in cases on state collateral review, the

Miller holding specifically limited itself to juveniles under the age of eighteen years at the time of the

offense who were sentenced to a mandatory term of life imprisonment without parole. Miller, 132

S.Ct. at 2460. Although Petitioner was sentenced to life imprisonment, he was over the age of eighteen

at the time of the offense, placing his sentence outside the reach of the Supreme Court's Miller

decision.



faculties. See id at 12. Bermudez's statement, although corroborative of Petitioner's own admission to being inebriated to
some extent, does not demonstrate that Petitioner was so impaired that he lacked the specific intent to kill. Therefore,
Petitioner failed to demonstrate that the outcome of the trial would have been different.
12 Subsection (iii) of Section 9545[(b)(l)] has two requirements. First, it provides that 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
provided in this section. Second, it provides that the right "has been held" by "that court" to apply retroactively ... These
words mean that the action has already occurred, i.e., "that court" has already held the new constitutional right to be
retroactive to cases on collateral review. By employing the past tense in writing this provision, the legislature clearly
intended that the right was already recognized at the time the petition was filed. Commonwealth v. Copenhefer, 941 A.2d
646, 649-50 (Pa. 2007) (quoting Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002)).
                                                               5
   III. CONCLUSION

       This court has evaluated a serial PCRA petition filed by Mr. Garcia. Petitioner failed, however,

to plead and prove an exception to the PCRA's timeliness provision. Accordingly, for the reasons

stated herein, the decision of the court di�missing his PCRA petition should be affirmed.




                                                       BY THE COURT:




                                                       BLrt:!.h




                                                   6
