Opinion
J-S66006-18 No. 2958 EDA 2017
12-20-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. WILFREDO SANTIAGO Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order November 15, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0503641-2003 BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Wilfredo Santiago, appeals nunc pro tunc from the order entered in the Philadelphia County Court of Common Pleas, which denied as untimely his second petition filed under the Post-Conviction Relief Act ("PCRA") at 42 Pa.C.S.A. §§ 9541-9546. We affirm.
We briefly summarize the facts of this case as follows. In the late hours of January 17, 2003, Appellant appeared at his wife's place of employment and argued with her. During the course of the arguments, Appellant struck his wife and was asked to leave. Although the police were called, Appellant was not arrested. Later that night, the police were dispatched in response to three domestic violence calls; and Appellant was apprehended for breaking into his wife's home. On November 21, 2003, a jury convicted Appellant of aggravated assault, attempted burglary, and resisting arrest. The court sentenced Appellant on January 20, 2004, to an aggregate of 21 to 42 years' incarceration. This Court affirmed the judgment of sentence on July 20, 2005, and the Supreme Court denied allowance of appeal on April 18, 2006. See Commonwealth v. Santiago , 883 A.2d 694 (Pa.Super. 2005) (unpublished memorandum), appeal denied, 587 Pa. 691, 897 A.2d 455 (2006).
The PCRA court opinion has outlined the subsequent procedural history of this case, so we have no need to restate it. We add only that after the court reinstated Appellant's right to appeal from the denial of his second PCRA petition, on August 25, 2017, he timely filed his notice of appeal the same day. The court ordered Appellant on September 11, 2017, to file a concise statement of errors complained of on appeal. Appellant timely complied on September 28, 2017.
Appellant raises the following issues on appeal:
WAS [APPELLANT]'S MANDATORY MINIMUM SENTENCE UNCONSTITUTIONAL WHEN THE COURT AGGREGATED [APPELLANT'S] SENTENCE BASED UPON THE PROSECUTOR'S INFLAMMATORY, BIAS[ED], AND PREJUDICIAL REMARKS?
WAS TRIAL COUNSEL INEFFECTIVE FOR FAILURE TO CALL [APPELLANT]'S WIFE TO TESTIFY THAT [APPELLANT] DID NOT [INJURE] HER?
[WERE APPELLANT]'S RIGHTS UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT VIOLATED IN DENYING HIS RIGHTS TO HAVE A JURY OF HIS PEERS...?
DID THE PROSECUTOR COMMIT PROSECUTORIAL MISCONDUCT IN THREATENING [APPELLANT]'S WIFE WITH ARREST WHICH PREVENTED HER FROM TESTIFYING?
DID THE PROSECUTOR COMMIT PROSECUTORIAL MISCONDUCT WHEN HE MADE PREJUDICIAL REMARKS DURING SENTENCING?(Appellant's Brief at IV).
Several of these issues were previously raised and addressed in Appellant's first PCRA petition, such as, the failure of counsel to call Appellant's wife to testify at trial and the claims of prosecutorial misconduct.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Glenn B. Bronson, we conclude the PCRA court opinion fully and properly addresses why Appellant's issues are unreviewable. ( See PCRA Court Opinion, filed November 7, 2017, at 3-5) (finding: judgment of sentence became final on [Monday] July 17, 2006, upon expiration of time for Appellant to file petition for writ of certiorari in U.S. Supreme Court; Appellant filed second PCRA petition on July 25, 2016, which was patently untimely; Appellant invoked newly-recognized-constitutional-right exception, citing Foster v. Chatman , ___ U.S. ___, 136 S.Ct. 1737, 195 L.Ed.2d 1 (2016); in Foster , however, Supreme Court simply applied Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) to facts in Foster ; Foster did not announce new constitutional right and declare it retroactive, so Appellant failed to meet cited exception to PCRA time bar). We agree and affirm the court's order that denied Appellant's second PCRA petition as untimely.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/20/18
Image materials not available for display.