Opinion
J-S03016-15 No. 821 EDA 2015
05-03-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. ALBERTO PAGAN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order February 17, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0105501-1998 BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and JENKINS, J. MEMORANDUM BY OTT, J.:
Alberto Pagan appeals pro se from the order entered on February 17, 2015, in the Court of Common Pleas of Philadelphia County, that denied his third petition for post-conviction collateral relief., Pagan seeks relief from the judgment of sentence of 22 to 44 years' imprisonment imposed on April 16, 1999, after the trial judge convicted him of one count of attempted murder, three counts each of aggravated assault and recklessly endangering another person, as well as firearms charges and possession of an instrument of crime. After a thorough review of the record, the parties' briefs, and the applicable law, we affirm.
See Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541-9546.
We note that the PCRA court dismissed the PCRA petition on February 17, 2015, and, therefore, the notice of appeal had to be filed by Thursday, March 19, 2015. See Pa.R.A.P. 903(a) (notice of appeal shall be filed within 30 days after the entry of the order from which the appeal was taken). Pagan dated his pro se notice of appeal March 15, 2015, but the notice of appeal was not filed until March 23, 2015.
Although the prisoner mailbox rule provides that a filing from an incarcerated pro se party is measured from the date the prisoner places it in the institution's mailbox, see Commonwealth v. Jones , 700 A.2d 423 (Pa. 1997), the record contains no proof of the date of mailing. We recognize our prerogative to remand for a hearing to determine Pagan's compliance with the prisoner mailbox rule. See Smith v. Pennsylvania Board of Probation and Parole , 683 A.2d 278, 282-283 (Pa. 1996). However, given our disposition of the merits, we decline to remand as it "would be futile to do so." See Commonwealth v. Chambers , 35 A.3d 34, 40 (Pa. Super. 2011).
The PCRA court aptly summarized the facts and procedural history in its opinion, and we adopt its recitation. See PCRA Court Opinion, 4/9/2015, at 1-2. Pagan argues the PCRA court erred when it (1) "dismissed [Pagan's] PCRA petition without conducting any evidentiary findings based upon the newly discovered evidence of innocence that was presented to the court in the exercise of due diligence," (2) "improperly recognized [Pagan's] motion for discovery as a Writ of Habeas Corpus, and used this as a basis for [its] unlawful dismissal of a PCRA petition that was properly filed and invoked an exception to the time-bar," and (3) "failed to recognize [Pagan] is currently serving an illegal sentence, due to[] the construction of the current sentence, and the PCRA court ha[s] jurisdiction to correct the sentence due to the properly presented newly discovered evidence exception to the time-bar requirement." Pagan's Brief at 17-18.
The PCRA court has provided a well-reasoned discussion in support of its decision. See PCRA Court Opinion, 4/9/2015, at 4-5 (finding: (1) Pagan's PCRA petition is facially untimely; (2) Pagan's reliance on McQuiggin v. Perkins , 133 S. Ct. 1924 (2013), is misplaced, as that decision pertained to timeliness requirements for federal habeas corpus petitions, not PCRA petitions; (3) Pagan failed to satisfy the after-discovered evidence exception based upon a "heterogeneous collection of alleged exculpatory statements from alibi witnesses" where Pagan admitted his past familiarity with the statements, asserting he presented them in a prior untimely PCRA petition; and (4) Pagan's petition for writ of habeas corpus, challenging the legality of his sentence due to a lack of a sentencing order, was properly denied because there is no merit to his claim). As we agree with the sound reasoning of the PCRA court, we adopt its rationale as our own.
PCRA Court Opinion, 4/9/2015, at 5.
Id. at 5, citing Joseph v . Glunt , 96 A.3d 365 (Pa. Super. 2014) (holding that the fact that the Department of Corrections did not possess sentencing order did not entitle appellant to habeas relief).
We simply add that, to the extent that Pagan raises for the first time in his brief "newly discovered evidence, the February 26, 2014, statement of Maria Carabello," we find this claim has been waived for failure to plead the exception in his April 3, 2014 PCRA petition. See Commonwealth v. Burton , 936 A.2d 521, 525 (Pa. Super. 2007) (stating "exceptions to the time bar must be pled in the PCRA petition, and may not be raised for the first time on appeal").
Pagan attached to his brief a copy of a hand-printed statement, bearing a signature of "Maria Caraballo" and date of "February 26, 2014." See Pagan's Brief, Exhibit "A." Therein, Caraballo stated she was not notified of the day of Pagan's trial and asserted Pagan "was not supposed to be in jail [be]cause [Pagan] was with me all night ...." Id.
Pagan states that Caraballo provided the statement to him following a Valentine's Day card she sent "on or about February 14, 2014," in which she "included information that she wished the court's administrator had done as he promised and notified her of the day of trial ... so she could appear and testify that [Pagan] was with her at the time of the criminal incident." Pagan's Brief at 14-16, 19, 27-29.
It bears mention that Maria Carballa was listed as one of four alibi witnesses for Pagan's trial. See N.T., 1/22/1999, at 258. In this Court's decision regarding Pagan's appeal from the denial of relief on his first PCRA petition, this Court rejected Pagan's claim that the Commonwealth withheld a police interview of Caraballa in violation of Brady v. Maryland , 373 U.S. 82 (1963). See Commonwealth v. Pagan , 911 A.2d 185 (Pa. Super. 2006) (filed September 11, 2006) (unpublished memorandum).
To the extent Pagan presents an illegal sentencing claim based on his contention that merger applied to his sentences for attempted homicide and two counts of aggravated assault because he was convicted of one criminal act upon three individuals, this claim cannot be reviewed since, as discussed above, Pagan has not satisfied any exception to the PCRA's timeliness requirement. See Commonwealth v. Miller , 102 A.3d 988, 995 (Pa. Super. 2014) ("As this Court recently noted, [t]hough not technically waivable, a legality [of sentence] claim may nevertheless be lost should it be raised ... in an untimely PCRA petition for which no time-bar exception applies, thus depriving the court of jurisdiction over the claim.") (citation and quotation marks omitted).
In addition, the discretionary aspects of sentencing claim Pagan raises in his brief is not cognizable in PCRA proceedings. Commonwealth v. Wrecks , 934 A.2d 1287, 1289 (Pa. Super. 2007).
Because no exception to the PCRA time-bar applies, Pagan's PCRA petition is untimely. As such neither this Court nor the PCRA court has jurisdiction over Pagan's third petition. Accordingly, we affirm the PCRA court's denial of relief.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/3/2016
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