Opinion
238 MDA 2024 J-S26030-24
08-26-2024
COMMONWEALTH OF PENNSYLVANIA v. PEDRO LUIS GAVILAN-CRUZ Appellant
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered January 25, 2024 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0001911-2014
Benjamin D. Kohler, Esq.
BEFORE: PANELLA, P.J.E., OLSON, J., and KUNSELMAN, J.
MEMORANDUM
OLSON, J.
Appellant, Pedro Luis Gavilan-Cruz, appeals from the order entered on January 25, 2024, which dismissed his third petition filed under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
In 2014, a jury convicted Appellant of numerous crimes, including rape. On April 2, 2015, the trial court sentenced Appellant to serve an aggregate term of 16 to 32 years in prison for his convictions. Following the nunc pro tunc restoration of Appellant's direct appeal rights, we affirmed Appellant's judgment of sentence on December 5, 2016. Commonwealth v. Gavilan-Cruz, 159 A.3d 995 (Pa. Super. 2016) (unpublished memorandum) at 1-5.
On December 13, 2016, Appellant's counsel filed a timely, first PCRA petition on Appellant's behalf. The PCRA court denied Appellant's petition after an evidentiary hearing, we affirmed the PCRA court's order on April 20, 2018, and the Pennsylvania Supreme Court denied Appellant's petition for allowance of appeal on October 11, 2018. Commonwealth v. Gavilan-Cruz, 190 A.3d 729 (Pa. Super. 2018) (unpublished memorandum) at 1-10, appeal denied, 195 A.3d 566 (Pa. 2018).
Appellant filed his second PCRA petition on August 30, 2021. The PCRA court dismissed this petition as untimely and, on November 15, 2022, this Court affirmed the PCRA court's order. Commonwealth v. Gavilan-Cruz, 289 A.3d 72 (Pa. Super. 2022) (non-precedential decision) at 1-7.
Appellant filed the current petition on May 1, 2023. This petition constitutes Appellant's third petition under the PCRA. Within this petition, Appellant claimed that his trial counsel was ineffective for failing to request a transcription of "[a]pproximately 40 phone calls" between Appellant and the victim, which Appellant initiated from the Lancaster County Prison. Appellant's Third PCRA Petition, 5/1/23, at 3-4. According to Appellant, the substance of these telephone calls would prove that the sexual intercourse between he and the victim was consensual. See id. Further, although Appellant recognized that his petition fell outside of the PCRA's one-year time-bar, Appellant did not plead any facts that would satisfy an exception to the time-bar. See id. at 4.
On November 21, 2023, the PCRA court provided Appellant with notice that it intended to dismiss the petition in 30 days, due to the untimeliness of the petition. PCRA Court Notice, 11/21/23, at 1; see also Pa.R.Crim.P. 907(1).
Appellant responded to the PCRA court's Rule 907 notice on December 15, 2023, by filing an amended PCRA petition. Within his amended petition, Appellant claimed:
[Appellant] is a Cuban National who does not read and/or write English. . . . It wasn't until the early spring of 2023, just before the filing of the instant PCRA, that [Appellant] became aware, through the assistance of an inmate [i]nterpreter . . . that these calls, mentioned on the English record . . . should have been transcribed and played/transcribed for the jury to weigh [the victim's] credibility against the one wiretap call police had [the victim] make to [Appellant] that was actually presented to the jury.Amended PCRA Petition, 12/15/23, at 10-11.
The PCRA court dismissed Appellant's PCRA petition on January 25, 2024 and Appellant filed a timely notice of appeal. We now affirm the dismissal of Appellant's untimely, serial PCRA petition.
"As a general proposition, we review a 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. Eichinger, 108 A.3d 821, 830 (Pa. 2014).
Before this Court may address the substance of Appellant's claims, we must first determine if this petition is timely.
[The PCRA requires] a petitioner to file any PCRA petition within one year of the date the judgment of sentence becomes final. A judgment of sentence becomes final at the conclusion of direct review . . . or at the expiration of time for seeking review.
. . .
However, an untimely petition may be received when the petition alleges, and the petitioner proves, that any of the
three limited exceptions to the time for filing the petition, set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are met. A petition invoking one of these exceptions must be filed within [one year] of the date the claim could first have been presented. In order to be entitled to the exceptions to the PCRA's one-year filing deadline, the petitioner must plead and prove specific facts that demonstrate his claim was raised within the [one-year] timeframe.See Commonwealth v. Lawson, 90 A.3d 1, 4-5 (Pa. Super. 2014) (quotation marks and some citations omitted).
We affirmed Appellant's judgment of sentence on December 5, 2016 and Appellant did not file a petition for allowance of appeal with the Pennsylvania Supreme Court. Thus, Appellant's judgment of sentence became final at the end of the day on January 4, 2017. See, e.g., Pa.R.A.P. 903(a). Since the PCRA requires that a petition be filed "within one year of the date the judgment becomes final," Appellant had until January 4, 2018 to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). Therefore, Appellant's current petition, which was filed on May 1, 2023, is patently untimely and the burden thus fell upon Appellant to plead and prove that one of the enumerated exceptions to the one-year time-bar applied to his case. See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa. Super. 2008) (to properly invoke a statutory exception to the one-year time-bar, the PCRA demands that the petitioner properly plead and prove all required elements of the relied-upon exception).
Appellant purports to invoke the "newly discovered facts" exception to the time-bar. This statutory exception provides:
(1)Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:
. . .
(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[.]
. . .
(2)Any petition invoking an exception provided in paragraph (1) shall be filed within one year of the date the claim could have been presented.42 Pa.C.S.A. § 9545(b).
Regarding the newly discovered facts exception, our Supreme Court has explained:
subsection (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.A. § 9545(b)(1)(ii)(emphasis added). If the petitioner alleges and proves these two components, then the PCRA court has jurisdiction over the claim under this subsection.Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (emphasis omitted).
Further, to properly invoke this exception, the petitioner is statutorily required to file his petition "within one year of the date the claim could have been presented." 42 Pa.C.S.A. § 9545(b). As our Supreme Court explained, to satisfy this "one year requirement," a petitioner must "plead and prove that the information on which he relies could not have been obtained earlier, despite the exercise of due diligence." See Commonwealth v. Stokes, 959 A.2d 306, 310-311 (Pa. 2008); Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001). Moreover, because the "one year requirement" of section 9545(b)(2) is a statutory mandate, the requirement is "strictly enforced." See Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010).
Within his petition, Appellant claimed that trial counsel was ineffective for failing to transcribe and play to the jury "[a]pproximately 40 phone calls" between Appellant and the victim, which Appellant initiated from the Lancaster County Prison. According to Appellant, these telephone calls constitute newly discovered facts and render his petition timely under the PCRA because he does not speak English and "[i]t wasn't until the early spring of 2023, just before the filing of the instant PCRA, that [Appellant] became aware, through the assistance of an inmate [i]nterpreter . . . that these calls, mentioned on the English record . . . should have been transcribed and played/transcribed for the jury to weigh [the victim's] credibility against the one wiretap call police had [the victim] make to [Appellant] that was actually presented to the jury." Amended PCRA Petition, 12/15/23, at 10-11.
Appellant's claim does not satisfy the PCRA's newly discovered facts exception, as Appellant was a party to these telephone calls and, thus, Appellant has always been aware of what was said during these calls. Therefore, Appellant has failed to plead: 1) that "the facts upon which the claim is predicated were unknown to" him and 2) that the facts "could not have been ascertained by the exercise of due diligence." See 42 Pa.C.S.A. § 9545(b)(ii).
We conclude that, since Appellant failed to plead a valid exception to the PCRA's time-bar, Appellant's petition is time-barred and our "courts are without jurisdiction to offer [Appellant] any form of relief." Commonwealth v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011). We thus affirm the PCRA court's order, which dismissed Appellant's third PCRA petition without a hearing.
Order affirmed.
Jurisdiction relinquished.
Judgment Entered.