Com. v. Mojica, F. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FRANCISCO MOJICA
Appellant No. 453 EDA 2016
Appeal from the PCRA Order entered January 22, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0744031-1991
BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED DECEMBER 13, 2016
Appellant, Francisco Mojica, appeals pro se from the January 22, 2016
order entered in the Court of Common Pleas of Philadelphia County, denying
his petition for collateral relief filed pursuant to the Post Conviction Relief
Act, 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.
We summarized the underlying factual background in our
memorandum issued in connection with Appellant’s direct appeal. Briefly,
Appellant and his accomplice, Tomas Vasquez (Appellant’s brother), while in
the process of burglarizing a residence to steal weapons, were discovered by
the victim. An exchange of gunfire took place, killing the victim and
wounding Appellant and his accomplice. Following a bench trial, Appellant
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*
Former Justice specially assigned to the Superior Court.
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was convicted of second degree murder, criminal conspiracy, burglary, and
robbery. On direct appeal, we affirmed Appellant’s judgments of sentence
for second degree murder, criminal conspiracy, and burglary, but vacated
the sentence on the robbery conviction because the sentence on the robbery
conviction should have merged with the sentence on the conviction of
murder in the second degree. See Commonwealth v. Mojica, 1960
Philadelphia 1996 (Pa. Super. filed January 29, 1998). The Supreme Court
denied allocatur on November 5, 1998. See Commonwealth v. Mojica,
711 A.2d 1041 (Pa. 1998).
On December 7, 1999, Appellant filed his first PCRA petition, which the
PCRA court dismissed on January 25, 2002.1 This Court affirmed the
dismissal on October 16, 2003. See Commonwealth v. Mojica, 1062 EDA
2002 (Pa. Super. filed October 16, 2003). On July 8, 2015, Appellant filed
the instant petition, which the PCRA court dismissed on January 22, 2016, as
untimely. This appeal followed.
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1
“[Appellant] filed a previous PCRA [petition], which resulted in restoration
of his appellate rights to appeal his judgment of sentence. For the purposes
of the PCRA, this petition constitutes [Appellant]’s first PCRA petition.” PCRA
Court Memorandum Order and Opinion, 1/22/16, at 1 n.1.
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On appeal, Appellant essentially raises two issues: (i) the PCRA court
erred in finding that his PCRA petition was untimely and (ii) the PCRA court
erred in not holding a hearing on his PCRA petition.2
In connection with his first claim, Appellant openly acknowledges that
his PCRA petition is facially untimely. However, he argues that he pleaded
and proved he met the “newly discovered” fact exception to the PCRA time
bar. See 42 Pa.C.S.A. § 9545(b)(1)(ii).3 We disagree.
“[A]n appellate court reviews the PCRA court’s findings of fact to
determine whether they are supported by the record, and reviews its
conclusions of law to determine whether they are free from legal error.”
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). All PCRA
petitions, “including a second or subsequent petition, shall be filed within
one year of the date the judgment becomes final” unless an exception to
timeliness applies. 42 Pa.C.S.A. § 9545(b)(1). “The PCRA’s time
restrictions are jurisdictional in nature. Thus, [i]f a PCRA petition is
untimely, neither this Court nor the [PCRA] court has jurisdiction over the
petition. Without jurisdiction, we simply do not have the legal authority to
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2
In his Pa.R.A.P. 1925(b) statement Appellant also alleged ineffective
assistance of counsel. Appellant, however, did not renew his challenge
before us. Accordingly, we conclude Appellant abandoned this challenge,
and we will not address it in this memorandum.
3
“[T]he facts upon which the claim is predicated were unknown to the
petitioner and could not have been ascertained by the exercise of due
diligence[.]” 42 Pa.C.S.A. § 9545(b)(1)(ii).
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address the substantive claims.” Commonwealth v. Chester, 895 A.2d
520, 522 (Pa. 2006) (first alteration in original) (internal citations and
quotation marks omitted). As timeliness is separate and distinct from the
merits of Appellant’s underlying claims, we first determine whether this
PCRA petition is timely filed. See Commonwealth v. Stokes, 959 A.2d
306, 310 (Pa. 2008).
Appellant argues that the new fact discovered is a statement from his
brother, Tomas Vasquez,4 who, approximately twenty years after Appellant’s
judgment became final, exonerates Appellant from any criminal
responsibility for the underlying crimes. Appellant is not entitled to relief.
The mere identification of a “new fact” is not in itself sufficient to meet
the alleged “newly discovered” exception. Indeed, before Appellant may
avail himself of this exception, he must first establish that the facts upon
which the claim is predicated were unknown and that he could not have
ascertained those facts by the exercise of due diligence. Commonwealth
v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (internal citations and
quotations omitted).
In the present case, Appellant asserts that the new “facts,” as
conveniently revisited by his brother in the affidavit,5 were unknown to him.
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4
Tomas Vasquez was tried separately and convicted of third degree murder
for his role in the crimes committed with Appellant.
5
The PCRA court also properly noted:
(Footnote Continued Next Page)
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Regardless of credibility issues, which we do not assess here, Appellant fails
to indicate what efforts, if any, he undertook to ascertain the supposedly
unknown facts. Indeed, his brief is devoid of any statement to that effect.
The PCRA court also noted
Since [Appellant] and Mr. Vasquez agree that they were together
at the time of the incident in 1991, [Appellant] was fully aware
of Mr. Vasquez’s existence at the time of the incident.
[Appellant] has not demonstrated what steps he took, if any, in
the last 24 years to contact Mr. Vasquez and obtain his
testimony. In fact, [Appellant] admits that Mr. Vasquez
recanted his statement after [Appellant]’s trial but before Mr.
Vasquez went on trial for these same charges two years later.
Therefore, [Appellant] should have raised this issue at that time,
and pursued his claim in a timely fashion.
PCRA Court Memorandum Order and Opinion, 1/22/16, at 4 (citation and
footnote omitted).
A review of record, therefore, shows that Appellant failed to explain
what steps he took to pursue this matter. Accordingly, Appellant failed to
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(Footnote Continued)
Upon review of [Mr.] Vasquez’s affidavit, it is unclear what part
of his testimony is being used to invoke the after discovered fact
evidence. Mr. Vasquez’s testimony essentially aligns with the
testimony at trial. Most of his statement addresses the
unfairness in the discrepancy in their sentences where
[Appellant] was convicted of second degree murder and Mr.
Vasquez, the shooter, was convicted of third degree murder.
However, Mr. Vasquez’s complaints and grievances do not
amount to an after-discovered fact that invokes this exception.
PCRA Court Memorandum Order and Opinion, 1/22/16, at 4 n.5 (citation
omitted).
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prove that he met the requirements for the newly discovered fact exception.
Cf. Bennett, 930 A.2d at 1272; see also Commonwealth v. Williams, 35
A.3d 44, 53 (Pa. Super. 2011) (“Due diligence demands that the petitioner
take reasonable steps to protect his own interests.”). Thus, we conclude that
we have no jurisdiction to entertain Appellant’s PCRA petition, and that the
PCRA court did not err in dismissing the instant PCRA petition as untimely.
Regarding the second claim of error (i.e., PCRA court failed to hold a
hearing on Appellant’s PCRA petition), the PCRA court did not err in
dismissing the petition without a hearing. See Commonwealth v.
Marshall, 947 A.2d 714, 723 (Pa. 2008) (“As explained supra, we have
concluded that [a]ppellant’s petition was untimely, and accordingly the PCRA
court properly determined that it had no jurisdiction to entertain it. We
therefore also must conclude that the PCRA court did not err in dismissing
[a]ppellant’s petition without a hearing.”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/2016
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