Commonwealth v. Rodriguez

• Citation: 280 A.3d 10 (Table)
• Decision Date: 04 May 2022
• Docket Number: J-A11013-22,2001 EDA 2021
• Court: Superior Court of Pennsylvania
• Parties: COMMONWEALTH OF PENNSYLVANIA v. MIGUEL ANGEL RODRIGUEZ Appellant

COMMONWEALTH OF PENNSYLVANIA v. MIGUEL ANGEL RODRIGUEZ Appellant

No. 2001 EDA 2021

No. J-A11013-22

Superior Court of Pennsylvania

May 4, 2022

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered September 10, 2021 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0003835-2014

BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM

BOWES J.

Miguel Angel Rodriguez appeals from the September 10, 2021 order dismissing his petition for relief pursuant to the Post-Conviction Relief Act ("PCRA"). We affirm.

This Court previously set forth a comprehensive review of the underlying events in this case in a memorandum affirming Appellant's judgment of sentence. See Commonwealth v Rodriguez, 174 A.3d 1130, 1133-36 (Pa.Super. 2017) ("Rodriguez I"). Due to the nature of the issues in this appeal, we need only set forth the following truncated summary of the facts:

[A]fter a heated argument between several participants, shots were fired at a bar in Easton, Pennsylvania. The gunfire struck [Damien Robinson ("the victim"), ] who died from his wounds, despite receiving aid from a least one police officer and the victim's subsequent transport to a local hospital. Upon arriving at the scene, police found, among other items, a broken cell phone, a bag of marijuana, bullets, bullet fragments, and shell casings near the victim. The cell phone and marijuana bag featured Appellant's DNA.

The Commonwealth empaneled a grand jury. Appellant testified at the grandy jury and stated: (1) he was at the bar, unarmed, on the night of the homicide with two friends; (2) he utilized two cell phones at the time, but gave one on that night to another person to use for drug transactions; (3) he never approached the location inside of the bar where the shooting actually occurred; and (4) he left the bar prior to hearing any gunshots and traveled to his girlfriend's house nearby. [Following the grand jury investigation, Appellant was arrested and charged with criminal homicide.]

At trial, one witness, a bouncer at the bar, testified that he saw Appellant brandish a gun. The bouncer stated that he heard three gunshots as he fled from the fracas. Additionally, a bartender who was working at the bar on the date of the shooting and who was also at one point a paramour of Appellant's friend provided her recollection of events. . . .

Ultimately, a jury found Appellant guilty of first-degree murder, and the trial court sentenced him to a term of life imprisonment without the possibility of parole [on February 12, 2016]. After the trial court denied his post-sentence motions, Appellant appealed to our Court. We affirmed the trial court's judgment of sentence. See Rodriguez I, supra at 1147. Appellant petitioned our

Supreme Court for allowance of appeal, but his petition was denied on May 30, 2018. See Commonwealth v. Rodriguez, 186 A.3d 941, 942 (Pa. 2018) (per curiam order denying petition for allowance of appeal). Appellant did not seek further review with the United States Supreme Court.

Commonwealth v. Rodriguez, 242 A.3d 413 (Pa.Super. 2020) ("Rodriguez II") (unpublished memorandum at 1).

On June 24, 2019, Appellant filed a timely, pro se PCRA petition. Tyree A. Blair, Esquire, was appointed to represent Appellant and an amended PCRA petition was filed alleging various grounds for relief. Following a hearing, the court denied Appellant's first PCRA petition. Appellant filed an appeal to this Court. After briefs had been filed but while the matter was still pending on appeal, a second attorney, Robert Patterson, Esquire, filed an entry of appearance on Appellant's behalf in the PCRA court. See Entry of Appearance, 11/4/20, at 1. The same day, the PCRA court filed an order purporting to replace Attorney Tyree with Attorney Patterson. See Order, 11/4/20, at 1. No concomitant withdrawal or entry of appearance was filed in this Court. On November 13, 2020, this Court affirmed the dismissal of Appellant's PCRA petition. See Rodriguez II, supra at 4. As this Court was not informed of any change in representation, the decision was transmitted to Attorney Tyree. No petition for allowance appeal to the Pennsylvania Supreme Court was filed. On June 28, 2021, Appellant filed a second, counseled PCRA petition under the representation of a third attorney, Lonny Fish, Esquire.^[1] Therein, Appellant argued, inter alia, that he had received ineffective assistance of counsel which resulted in the denial of his right to seek allowance of appeal in our Supreme Court. See PCRA Petition, 6/28/21, at ¶¶ 14-19. Specifically, Appellant alleged Attorney Patterson did not enter his appearance in this Court after assuming responsibility for Appellant's case and, therefore, was not notified of this Court's holding in Rodriguez II. Additionally, Appellant asserted that Attorney Tyree did not alert either Attorney Patterson or Appellant of the filing of our decision. As a result, Appellant claims he did not learn of the decision with respect to his first PCRA petition until after his time to file a petition for allowance of appeal in the Pennsylvania Supreme Court had passed. Thus, Appellant argued he was entitled to the restoration of his right to seek discretionary review with our Supreme Court as to his first PCRA petition. With respect to timeliness under the PCRA, Appellant asserted only that his second PCRA petition was timely filed. Id. at ¶¶ 9-11.

The PCRA court filed notice of its intent to dismiss Appellant's second PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907. It asserted that Appellant's claims were time-barred and noted that Appellant had failed to raise any of the timeliness exceptions to the PCRA pursuant to 42 Pa.C.S. § 9545(b)(1)(i)-(iii). See Order, 7/15/21, at 1-8. Appellant filed a response to this notice that largely repeated the allegations in his second PCRA petition. In pertinent part, Appellant did not raise or discuss any of the timeliness exceptions to the PCRA in this filing. See Response to Rule 907 Notice, 8/5/21, at ¶¶ 1-13. Thereafter, the PCRA court dismissed the petition. See Order and Opinion, 9/10/21, at 17 ("[W]e have no jurisdiction to entertain this late [p]etition or to grant nunc pro tunc relief.").

Appellant filed a timely notice of appeal to this Court. On September 24, 2021, the PCRA court directed Appellant to file a concise statement pursuant to Pa.R.A.P. 1925(b) within twenty-one days. On October 18, 2021, Appellant filed an untimely concise statement repeating his allegation of ineffectiveness without mentioning timeliness.^[2] Thereafter, the PCRA court filed a responsive Rule 1925(a) opinion concluding that it did not err in dismissing the petition as untimely and referencing the reasoning set forth in its Rule 907 notice of intent to dismiss without a hearing.

Appellant has raised a single issue for our consideration: "Did the court err and abuse its discretion in failing to restore [Appellant's] appellate rights?" Appellant's brief at 6. In reviewing a denial of PCRA relief on appeal, "we examine whether the PCRA court's determination is supported by the record and free of legal error." Commonwealth v. Kennedy, 266 A.3d 1128, 1132 (Pa.Super. 2021). Before addressing the merits of Appellant's claim for relief, we must assess the timeliness of his PCRA petition.

It is a well-established matter of statute that all PCRA petitions, including a second or subsequent one, must be filed within one year of the date that a defendant's judgment of sentence becomes final. See 42 Pa.C.S. § 9545(b)(1); Commonwealth v. Burton, 158 A.3d 618, 623 n.7 (Pa. 2017). This timeliness requirement is "jurisdictional in nature, and where a PCRA petition is filed untimely, courts lack jurisdiction to address the substantive claims raised therein." Commonwealth v. Cobbs, 256 A.3d 1192, 1207 (Pa. 2021). The PCRA provides that a judgment of sentence becomes final at the conclusion of direct review or at the expiration of the time period for seeking such review. See 42 Pa.C.S. § 9545(b)(3).

Instantly, Appellant's judgment of sentence became final on August 28, 2018, or ninety days after his petition for allowance of appeal in the Pennsylvania Supreme Court was denied and his time to seek a writ of certiorari in the United States Supreme Court expired. See U.S. Sup. Ct. Rule 13(1). Under the explicit terms of the PCRA, Appellant had until August 28, 2019, to file a timely PCRA petition. Therefore, the instant PCRA petition is facially untimely by almost two years.

In order to overcome this facial untimeliness, Appellant was required to allege and prove that one of the three exceptions applies to his PCRA claims:

(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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). We also note that "the PCRA confers no authority upon this Court to fashion ad hoc equitable exceptions to the PCRA time-bar in addition to those exceptions expressly delineated in the Act." Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003).

Appellant's only discussion of timeliness with respect to his second PCRA petition is a bald and incorrect assertion that...