Com. v. Feliciano, A. ( 2022 )


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  • J-S33041-21
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
    :         PENNSYLVANIA
    :
    v.                             :
    :
    :
    ANGEL FELICIANO                             :
    :
    Appellant                :    No. 421 EDA 2021
    Appeal from the PCRA Order Entered January 15, 2021
    In the Court of Common Pleas of Philadelphia County Criminal Division at
    No(s): CP-51-CR-0009715-2012
    BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.
    MEMORANDUM BY McLAUGHLIN, J.:                            FILED MARCH 1, 2022
    Angel Feliciano appeals pro se from the order denying his Post
    Conviction Relief Act (“PCRA”) petition. See 42 Pa.C.S.A. §§ 9541-9546. We
    affirm.
    A panel of this court previously summarized the facts as follows:
    In mid-January, 2010, [Feliciano] was involved in a dispute
    over drug territory with the decedent, Kenneth Rolon. On
    January 22, 2010, [Feliciano] was a passenger in a car being
    driven by his co-defendant, Willey Ortiz, when [Feliciano]
    saw Rolon standing on a street corner. Ortiz pulled over to
    the corner and waved Rolon over to the car. When Rolon
    approached the car, [Feliciano] fired a .25 caliber pistol in
    Rolon’s chest, killing him. N.T. [,] 2/3/14[,] at 34–37.
    Commonwealth         v.   Feliciano,   No.       1781   EDA   2016,   unpublished
    memorandum at 2 (Pa.Super. filed 5/22/17) (quoting Trial Court Opinion,
    6/29/16, at 2–3) (footnote omitted).
    J-S33041-21
    Feliciano pleaded guilty to third-degree murder, conspiracy to commit
    murder, and possessing an instrument of a crime.1 He was sentenced to an
    aggregate term of 25-50 years’ incarceration. Feliciano filed a post-sentence
    motion seeking to withdraw his guilty plea, which the court denied. He
    appealed, and we affirmed the judgment of sentence on May 22, 2017.
    Nearly three years later, on May 19, 2020, Feliciano filed a pro se PCRA
    petition. Counsel was appointed, who subsequently filed a Finley2 letter. The
    court dismissed Feliciano’s petition and granted counsel’s request to withdraw.
    This timely appeal followed.
    Feliciano raises the following five issues for our review:
    1. Whether trial/plea counsel (Wolf) was ineffective in
    violation of the 6th and 14th Amendments?
    2. [Whether] the plea colloquy was defective in violation of
    due process and the right to competent counsel[?]
    3. [Whether] the PCRA court erred by not holding an
    evidentiary hearing on the affidavit[] from the doctor
    who was treating [Feliciano] for mental health issues
    prior to the plea[?]
    4. [Whether] court[-]appointed PCRA counsel O’Hanlon[3]
    was ineffective in violation of the 6th and 14th
    ____________________________________________
    1   18 Pa.C.S.A. §§ 2502(c), 903, and 907, respectively.
    2   See Commonwealth v. Finley, 
    550 A.2d 213
     (Pa.Super. 1988) (en banc).
    3 As the trial court noted, Attorney O’Hanlon “represented [Feliciano] in a
    previous PCRA petition, which he filed to reinstate [Feliciano’s] right to file a
    direct appeal after [Feliciano’s] initial direct appeal was dismissed for appellate
    counsel’s failure to file a brief. After the PCRA court reinstated [Feliciano’s]
    direct appeal rights, Mr. O’Hanlon represented [Feliciano] on direct appeal,
    (Footnote Continued Next Page)
    -2-
    J-S33041-21
    Amendments to the United States Constitution and the
    Pennsylvania Constitution[?]
    5. [Whether Feliciano] suffered civil rights violations and
    obstruction of justice violations at the hands of corrupt
    Philadelphia police officials (via) Detective James Pitts,
    Detective Phillip Nordo, Detective Omar Jenkins, Officer
    Seigafuse, and dismissed Ex-Assistant District Attorney
    Andrew Notaristefano, all relating to after[-]discovered
    evidence[?]
    Feliciano’s Br. at 4 (unnecessary capitalization omitted).
    On appeal from the denial or grant of relief under the PCRA, our review
    is limited to determining “whether the PCRA court’s ruling is supported by the
    record and free of legal error.” Commonwealth v. Presley, 
    193 A.3d 436
    ,
    442 (Pa.Super. 2018) (citation omitted).
    It is well-established that “[u]nder the PCRA, any petition for relief,
    including second and subsequent petitions, must be filed within one year of
    the date on which the judgment of sentence becomes final.” Commonwealth
    v. Greco, 
    203 A.3d 1120
    , 1123 (Pa.Super. 2019). For purposes of the PCRA,
    “a judgment becomes 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.” 42 Pa.C.S.A. § 9545(b)(3). The PCRA’s time limit is mandatory and
    jurisdictional in nature, and the court may not ignore it to reach the merits of
    the petition. Commonwealth v. Murray, 
    753 A.2d 201
    , 203 (Pa. 2000).
    ____________________________________________
    filing an Anders brief that was accepted by [this] Court.” Trial Ct. Op. at 2
    n.3.
    -3-
    J-S33041-21
    Courts may consider a PCRA petition filed more than one year after a judgment
    of sentence becomes final only if the petitioner pleads and proves one of the
    following three statutory exceptions:
    (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.A. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke these
    exceptions “shall be filed within one year of the date the claim could have
    been presented.” 42 Pa.C.S.A. § 9545(b)(2).4
    Here, Feliciano’s judgment of sentence became final on June 21, 2017.
    Therefore, Feliciano had until June 21, 2018, to file a PCRA petition. Since the
    instant PCRA petition was filed on May 19, 2020, it is patently untimely.
    Therefore, Feliciano was required to plead and prove at least one of the time-
    bar exceptions. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
    ____________________________________________
    4 Section 9545(b)(2) was amended, effective December 24, 2018, to increase
    the time for filing from 60 days after the date the claim could have been
    presented, to one year after the petitioner could have first presented it.
    -4-
    J-S33041-21
    Apart from Feliciano’s third and fifth issues, Feliciano did not address
    timeliness in his PCRA petition or attempt to raise one of the time-bar
    exceptions. Thus, Feliciano’s first, second, and fourth issues are time-barred
    and the PCRA court was without jurisdiction to address them on the merits.
    As to Feliciano’s third and fifth issues, Feliciano attempts to assert the
    unknown fact exception, pursuant to section 9545(b)(1)(ii). In order to
    succeed in raising the unknown fact exception, a petitioner must establish
    that: (1) “the facts upon which the claim is predicated were unknown,” and
    (2) the facts “could not have been ascertained by the exercise of due
    diligence.” 42 Pa.C.S.A. § 9545(b)(1)(ii). “[T]he due diligence inquiry is fact-
    sensitive   and     dependent      upon     the    circumstances     presented.”
    Commonwealth v. Burton, 
    121 A.3d 1063
    , 1070 (Pa.Super. 2015) (en
    banc) (footnote omitted). “Due diligence demands that the petitioner take
    reasonable steps to protect his own interests.” Commonwealth v. Brown,
    
    111 A.3d 171
    , 176 (Pa.Super. 2015). “A petitioner must explain why he could
    not have learned the new fact(s) earlier with the exercise of due diligence.”
    
    Id.
     Further, “[t]he focus of the exception is on the newly discovered facts,
    not on a newly discovered or newly willing source for previously known facts.”
    Commonwealth v. Marshall, 
    947 A.2d 714
    , 720 (Pa. 2008) (cleaned up).
    Feliciano’s third issue contends that the PCRA court erred by not holding
    an evidentiary hearing regarding an “affidavit” from a “doctor” who was
    treating him for mental health issues prior to his guilty plea. Feliciano’s Br. at
    14. Feliciano attached to his PCRA petition a letter, which he claims is an
    -5-
    J-S33041-21
    affidavit, from a psychotherapist who treated him as a child from ages 7 to 13
    for ADHD, ODD, and learning disabilities. PCRA Petition at Exh. 2. The letter
    was postmarked April 3, 2020. Feliciano argues that this letter “along with the
    fact that was he was housed in the mental institution when the Sherriff’s [sic]
    picked him up and the fact that he is currently in a mental institution is enough
    to require an evidentiary hearing[.]” Mem. of Law in Supp. of PCRA Pet. at 12.
    Feliciano seems to suggest that this letter is newly discovered evidence
    showing he was incapable of entering a voluntary, intelligent, and knowing
    plea when he pleaded guilty.
    Feliciano’s argument is undeveloped, and he has therefore waived it.
    See Commonwealth v. Thomas, 
    215 A.3d 36
    , 51 (Pa. 2019). Even if it were
    not waived, it is without merit. First, it is well settled that “there is no absolute
    right to an evidentiary hearing on a PCRA petition, and if the PCRA court can
    determine from the record that no genuine issues of material fact exist, then
    a hearing is not necessary.” Commonwealth v. Maddrey, 
    205 A.3d 323
    ,
    328 (Pa.Super. 2019) (brackets omitted). “[T]o obtain reversal of a PCRA
    court’s decision to dismiss a petition without a hearing, an appellant must
    show that he raised a genuine issue of fact which, if resolved in his favor,
    would have entitled him to relief, or that the court otherwise abused its
    discretion in denying a hearing.” 
    Id.
     Due to Feliciano’s failure to raise a
    genuine issue of material fact in his petition, the PCRA court did not err in
    denying him an evidentiary hearing.
    -6-
    J-S33041-21
    Moreover, Feliciano’s claim does not fall within the unknown fact
    exception to the PCRA’s time-bar. The “fact” on which Feliciano relies is a
    document describing his childhood diagnoses of ADHD, ODD, and learning
    disabilities. That document is at best new evidence of a fact and is not a new
    fact itself. A newly willing source for previously known facts does not fall within
    the meaning of the exception to the time-bar. Marshall, 947 A.2d at 720.
    Furthermore, Feliciano has not established that he was unable to discover the
    fact of his diagnoses earlier through exercising due diligence. Feliciano has not
    claimed that he did not know at the very least that the psychotherapist had
    treated him. Accordingly, the PCRA properly dismissed this claim.
    Feliciano’s fifth issue also purports to assert the unknown fact exception.
    Feliciano claims that certain Philadelphia police officials who were involved in
    the investigation of his case, namely Detective James Pitts, Detective Phillip
    Nordo, Detective Omar Jenkins, Officer Seigafuse, and Assistant District
    Attorney Andrew Notaristefano, were found to be responsible for misconduct
    in other unrelated cases. Feliciano argues that his counsel failed to investigate
    these officials to determine whether any witnesses were threatened, coerced,
    or intimidated by them into falsely implicating Feliciano in this matter.
    Feliciano’s Br. at 27.
    Feliciano has again failed to prove the applicability of the unknown fact
    exception. Although he states that he learned about the police officials’
    misconduct from an inmate, he fails to allege when he learned about the
    information, nor why he could not, with the exercise of due diligence, have
    -7-
    J-S33041-21
    obtained it earlier. See 42 Pa.C.S.A. § 9545(b)(1)(ii). Accordingly, since
    Feliciano failed to prove an exception to the PCRA’s time limitations, the PCRA
    court properly dismissed his petition.
    Order affirmed.
    Judge Bowes joins the memorandum.
    Judge Nichols concurs in the result.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 3/1/2022
    -8-
    

Document Info

Docket Number: 421 EDA 2021

Judges: McLaughlin, J.

Filed Date: 3/1/2022

Precedential Status: Precedential

Modified Date: 3/1/2022