Com. v. Zavala, J.

J-S70013-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSE RODRIGUEZ ZAVALA,
Appellant No. 1265 EDA 2015
Appeal from the PCRA Order April 14, 2015
in the Court of Common Pleas of Chester County
Criminal Division at No.: CP-15-CR-0004395-2006
BEFORE: DONOHUE, J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED DECEMBER 01, 2015
Appellant, Jose Rodriguez Zavala, appeals pro se from the order
dismissing his second petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.
The PCRA court aptly summarized the factual and procedural history of
this case as follows:
On September 28, 2007 . . . a jury found Appellant guilty
of rape, involuntary deviate sexual intercourse, aggravated
indecent assault, sexual assault, simple assault, recklessly
endangering another person, aggravated assault and aggravated
assault of an unborn child. All charges were the result of
Appellant’s violent attacks on his girlfriend; the last attack
occurring when she was pregnant with their child. On January
11, 2008, he was sentenced to a term of imprisonment of
seventeen to [forty] years. Appellant appealed, raising the claim
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S70013-15
that the guilty verdict for the crime of rape was against the
weight of the evidence, since his girlfriend had recanted her prior
statements to the police, and testified at his trial that the sex
between them had been consensual. The Superior Court
disagreed, noting that the jury was free to believe the victim’s
earlier statements to the police regarding the rape, and affirmed
his judgment of sentence on July 31, 2009. The Pennsylvania
Supreme Court denied his petition for allowance of appeal on
May 5, 2010.
On May 26, 2010, Appellant filed his first petition under
the [PCRA]. In it he claimed that his trial counsel was
ineffective, and that he was “actually innocent” of raping his
girlfriend, since his girlfriend had admitted that the report she
gave to the police was not truthful, and that there was no rape
committed. The PCRA court found that Appellant’s claims
entitled him to no post-conviction relief, and dismissed his PCRA
petition on October 11, 2010. Appellant appealed, and on June
17, 2011, the Superior Court affirmed the dismissal of
Appellant’s PCRA, specifically noting in its memorandum that the
jury in Appellant’s trial had been “fully apprised of the victim’s
recantation” prior to reaching its guilty verdict.
(Commonwealth v. Rodriguez Zavala, No. 2942 EDA 2010 at
*5 (unpublished memorandum) (filed June 17, 2011)). The
Pennsylvania Supreme Court denied Appellant’s petition for
allowance of appeal on December 6, 2011.
(PCRA Court Opinion, 6/15/15, at 1-2) (record citation formatting provided).
On June 6, 2013, Appellant, acting pro se, filed the instant second
PCRA petition, captioning it as a petition seeking habeas corpus relief and/or
PCRA relief. In it, he again raised the claim that he was actually innocent
because the victim had recanted and testified at trial that the sex between
them was consensual. On July 15, 2013, the PCRA court entered notice of
its intention to dismiss the petition without a hearing. See Pa.R.Crim.P.
907(1). Appellant filed a response, and on August 28, 2014, the court
entered an order directing him to file a certification of the additional
-2-
J-S70013-15
evidence he intended to offer at a hearing. See Pa.R.Crim.P. 902(A)(15).
On September 23, 2014, Appellant filed a certification providing the names
and the testimony of the witnesses he intended to offer: the victim, who
would testify that Appellant did not rape her; Appellant, who would testify
that he did not rape her; and Appellant’s sister, who would testify that
Appellant and the victim lived together as common law husband and wife.
On February 2, 2015, the PCRA court again issued notice of its intent to
dismiss the petition without a hearing. See Pa.R.Crim.P. 907(1). After
Appellant filed a response, the court entered its order dismissing the petition
as untimely on April 14, 2015. This timely appeal followed.1
Appellant raises the following issues for our review:
[1.] Did the [PCRA] court abuse it’s [sic] discretion by denying
the Appellant’s [PCRA] petition because the [PCRA] court ruled
that it lacked jurisdiction to hear the case?
[2.] [Whether] the [PCRA] court [erred] and abused it’s [sic]
discretion when [it] ordered an evidentiary hearing, (by
12/12/13 order), and then a new judge took over the case and
ignored the order of the previous judge, handling the case[?]
[3.] [Whether] the [PCRA] court [erred] and abused it’s [sic]
discretion when it converted the state habeas corpus petition to
a PCRA petition even though the state habeas raised an 8th
amendment claim of cruel and unusual punishment[?]
[4.] [Whether] the [PCRA] court [erred] and abuse[d] it’s [sic]
discretion when it made a ruling that it lacked jurisdiction to
____________________________________________
1
Although the PCRA court did not order Appellant to file a concise statement
of errors complained of on appeal, he filed a concise statement on May 14,
2015. The court filed an opinion on June 15, 2015. See Pa.R.A.P. 1925.
-3-
J-S70013-15
hear the petition commenced by the Appellant stating that the
new evidence did not qualify as an exception to the time
limitation bar[,] specifically § 9545(b)(1)(ii)[?]
(Appellant’s Brief, at 1) (unnecessary capitalization, commentary, and
parenthesis omitted).
We begin by noting our well-settled standard of review. In
reviewing the denial of PCRA relief, we examine whether the
PCRA court’s determination is supported by the record and free
of legal error. The scope of review is limited to the findings of
the PCRA court and the evidence of record, viewed in the light
most favorable to the prevailing party at the trial level. It is
well-settled that a PCRA court’s credibility determinations are
binding upon an appellate court so long as they are supported by
the record. However, this Court reviews the PCRA court’s legal
conclusions de novo.
We also note that a PCRA petitioner is not automatically
entitled to an evidentiary hearing. We review the PCRA court’s
decision dismissing a petition without a hearing for an abuse of
discretion.
[T]he right to an evidentiary hearing on a post-
conviction petition is not absolute. It is within the
PCRA court’s discretion to decline to hold a hearing if
the petitioner’s claim is patently frivolous and has no
support either in the record or other evidence. It is
the responsibility of the reviewing court on appeal to
examine each issue raised in the PCRA petition in
light of the record certified before it in order to
determine if the PCRA court erred in its
determination that there were no genuine issues of
material fact in controversy and in denying relief
without conducting an evidentiary hearing.
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations
and quotation marks omitted).
“Before we may address the merits of Appellant’s arguments we must
first consider the timeliness of Appellant’s PCRA petition because it
-4-
J-S70013-15
implicates the jurisdiction of this Court and the PCRA court.” Id. (citation
omitted).
A PCRA petition, including a second or subsequent one, must be
filed within one year of the date the petitioner’s judgment of
sentence became final, unless he pleads and proves one of the
three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
judgment becomes final at the conclusion of direct review by
[the Pennsylvania Supreme] Court or the United States Supreme
Court, or at the expiration of the time for seeking such review.
42 Pa.C.S.[A.] § 9545(b)(3). The PCRA’s timeliness
requirements are jurisdictional; therefore, a court may not
address the merits of the issues raised if the petition was not
timely filed. The timeliness requirements apply to all PCRA
petitions, regardless of the nature of the individual claims raised
therein. The PCRA squarely places upon the petitioner the
burden of proving an untimely petition fits within one of the
three exceptions. . . .
Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations
and footnote omitted).
In this case, Appellant’s judgment of sentence became final on August
3, 2010, when his time to file a petition for writ of certiorari with the United
States Supreme Court expired. See U.S. Sup. Ct. R. 13; 42 Pa.C.S.A. §
9545(b)(3). Therefore, he had one year from that date to file a petition for
collateral relief, specifically, until August 3, 2011. See 42 Pa.C.S.A. §
9545(b)(1). Because Appellant filed the instant petition on June 6, 2013, it
is untimely on its face, and the PCRA court lacked jurisdiction to review it
unless he pleaded and proved one of the statutory exceptions to the time-
bar. See id. at § 9545(b)(1)(i)-(iii).
-5-
J-S70013-15
Section 9545 of the PCRA provides only three limited exceptions that
allow for review of an untimely PCRA petition:
(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.
Id. “If the [PCRA] petition is determined to be untimely, and no exception
has been pled and proven, the petition must be dismissed without a hearing
because Pennsylvania courts are without jurisdiction to consider the merits
of the petition.” Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa.
Super. 2011), appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted). In
addition, a PCRA petition invoking one of these statutory exceptions must
“be filed within 60 days of the date the claim could have been presented.”
42 Pa.C.S.A. § 9545(b)(2).
Here, Appellant claims the benefit of the after-discovered facts
exception to the PCRA’s timeliness requirement based on “new
information/new evidence” that the victim will testify that Appellant did not
rape her. (Appellant’s Brief, at 4; see id. at 5); see also 42 Pa.C.S.A. §
9545(b)(1)(ii). Appellant contends that since the victim recanted her initial
-6-
J-S70013-15
report to police that he raped her, and has admitted that she was never
raped, he is entitled to an evidentiary hearing on this issue. (See
Appellant’s Brief, at 10-11). We disagree.
The after-discovered facts exception requires the facts upon which the
claim is predicated “were not previously known to the petitioner and could
not have been ascertained through due diligence.” Commonwealth v.
Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008), cert. denied, 555 U.S. 916(2008) (citation omitted). The PCRA creates a three-part test for the after-
discovered facts exception: “1) the discovery of an unknown fact; 2) the fact
could not have been learned by the exercise of due diligence; and 3) the
petition for relief was filed within 60 days of the date that the claim could
have been presented.” Commonwealth v. Smith, 35 A.3d 766, 771 (Pa.
Super. 2011), appeal denied, 53 A.3d 757 (Pa. 2012) (emphasis omitted).
Here, although Appellant claims that the victim’s testimony that he did
not rape her is “new evidence,” (Appellant’s Brief, at 2, 4), a review of the
record belies this claim. Specifically, at Appellant’s trial, the victim testified
that Appellant never raped her and that the sexual acts between them were
consensual. (See N.T. Trial, 9/26/07, at 206, 210). Appellant raised the
issue of the victim’s recantation of her rape allegation on direct appeal and
in his first PCRA petition. (See PCRA Ct. Op., at 2). Therefore, the record
plainly shows that Appellant was well-aware of the victim’s testimony
denying the rape during his trial in 2007. Thus, Appellant’s claim that the
victim’s testimony in this regard is “new evidence” is meritless.
-7-
J-S70013-15
In sum, we conclude that Appellant has not met his burden of proving
his untimely petition fits within one of the three exceptions to the PCRA’s
time-bar. See Jones, supra at 17. Since he presented no genuine issue of
material fact concerning the timeliness of his petition, the PCRA court
properly dismissed it without a hearing based on its determination that it
was untimely with no exception to the time-bar pleaded or proven. See
Miller, supra at 992.
Because Appellant’s PCRA petition is untimely, we are not permitted to
address his remaining issues on appeal. See id. Accordingly, we affirm the
order of the PCRA court.2
Order affirmed.
____________________________________________
2
We decline Appellant’s apparent invitation to construe his claim as falling
outside the statutory framework of the PCRA. (See Appellant’s Brief, at 6,
11). The PCRA “provides for an action by which persons convicted of crimes
they did not commit . . . may obtain collateral relief.” 42 Pa.C.S.A. § 9542.
“[The PCRA is] the sole means of obtaining collateral relief and encompasses
all other common law and statutory remedies for the same purpose that
exist . . . including habeas corpus and coram nobis.” Id. Moreover, our
Supreme Court has “held that the scope of the PCRA eligibility requirements
should not be narrowly confined to its specifically enumerated areas of
review.” Commonwealth v. Hackett, 956 A.2d 978, 986 (Pa. 2008), cert.
denied, 556 U.S. 1285 (2009) (citation omitted) (determining claim
essentially attacking underlying conviction falls within the ambit of the
PCRA).
-8-
J-S70013-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2015
-9-