J-A25032-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

NELSON LUGO, 

Appellant.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 396 EDA 2018

Appeal from the PCRA Order, January 5, 2018,

in the Court of Common Pleas of Chester County,

Criminal Division at No(s): CP-15-CR-0002638-2004.

BEFORE: PANELLA, J., DUBOW, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.: FILED JANUARY 16, 2019

Nelson Lugo appeals from the order denying his seventh petition for 

relief filed pursuant to the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-

46. After careful review, we affirm.

The PCRA court summarized the procedural history relevant to the 

instant appeal as follows:

[Lugo] pled guilty to one count of Possession with Intent 

to Deliver a Controlled Substance, two counts of Delivery of 

a Controlled Substance, and one count of Corrupt 

Organizations. On direct appeal, the Superior Court 

affirmed [Lugo’s] conviction and his judgment of sentence 

became final on June 25, 2007. [Lugo’s] first PCRA petition 

was filed on October 29, 2007 and, after a hearing on the 

merits, was dismissed on February 29, 2008. [Lugo] filed a 

second PCRA petition on April 21, 2009, and it was 

dismissed on May 21, 2009.

[Lugo] filed a third PCRA petition on May 3, 2010. On May 

19, 2011, the Superior Court affirmed the PCRA court’s 

dismissal of the petition as untimely, i.e. the petition was 

not filed within one year of the judgment becoming final and 
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did not properly invoke any of the enumerated exceptions 

to the one-year limitation. In the petition, [Lugo] raised the 

issue of newly discovered evidence. He presented for the 

court’s review a sworn affidavit by Geraldo Colon in which 

Colon recants a number of statements he allegedly made to 

law enforcement prior to [Lugo’s] arrest. Upon review, the 

[Superior Court] determined that the record belied [Lugo’s] 

claim and that [Lugo] was aware in 2008 of the existence of 

the facts contained in Colon’s 2010 affidavit.

While the third petition was pending, [Lugo] filed a fourth 

PCRA petition. On February 1, 2011, this fourth petition was 

dismissed. On April 9, 2014, [Lugo] then filed a fifth PCRA 

petition. The petition was dismissed by order of September 

26, 2015. [Lugo] appealed the decision to dismiss the fifth 

petition. On July 9, 2015, the Superior Court affirmed and, 

on December 29, 2015, the Pennsylvania Supreme Court 

also affirmed.

On July 30, 2016, [Lugo] filed a sixth PCRA petition which 

was denied. [Lugo] appealed, but subsequently was 

granted leave to withdraw the appeal due to the 

Pennsylvania’s Supreme Court’s determination that the case 

law holding mandatory minimum sentences unconstitutional 

was not retroactive to collateral review.

The instant petition was filed on November 17, 2017, 

which was within sixty days of the Superior Court’s October 

4, 2017 order granting leave to withdraw the appeal.

PCRA Court Opinion, 1/28/18, at 2-3.

Following proper notice, the PCRA court dismissed Lugo’s petition as 

untimely on January 5, 2018. The court did not hold an evidentiary hearing. 

Lugo filed a notice of appeal on January 29, 2018. Both Lugo and the PCRA 

court have complied with Pa.R.A.P. 1925.

Lugo presents two questions for our review:

1. Whether the PCRA court erred in ruling that the PCRA 

petition was not timely when [Lugo] was entitled to the 
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timeliness exception for knowing use of perjured 

testimony and governmental interference?

2. Whether the PCRA court erred in finding that [Lugo] did 

not make out a prima facie showing that the proceedings 

which resulted in his conviction were so unfair that a 

miscarriage of justice occurred or that he is innocent of 

the crimes charged?

We first determine whether the PCRA court correctly concluded that 

Lugo’s serial petition for post-conviction relief was untimely filed. This Court’s 

standard of review regarding an order dismissing a petition under the PCRA is 

to determine whether the PCRA court’s conclusion is supported by the 

evidence of record and is free of legal error. The PCRA court’s factual findings 

will not be disturbed unless there is no support for the findings in the certified 

record. Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013) 

(citations omitted). 

Generally, a petition for relief under the PCRA, including a second or 

subsequent petition, must be filed within one year of the date the judgment 

is final unless the petition alleges, and the petitioner proves, that an exception

to the time for filing the petition, set forth at 42 Pa.C.S.A. sections 

9545(b)(1)(i), (ii), and (iii), is met.1 42 Pa.C.S.A. § 9545. A PCRA petition 

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1 The exceptions to the timeliness requirement are:

(i) the failure to raise the claim previously was the result of 

interference of 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.
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invoking one of these statutory exceptions must “be filed within 60 days of 

the date the claims could have been presented.” See Hernandez, 79 A.3d 

651-52 (citations omitted); see also 42 Pa.C.S.A. § 9545(b)(2). Asserted 

exceptions to the time restrictions for a PCRA petition must be included in the 

petition, and may not be raised for the first time on appeal. Commonwealth 

v. Furgess, 149 A.3d 90, 93 (Pa. Super. 2016).

Because he did not seek further review following the denial of his 

petition for allowance of appeal by our Supreme Court on March 27, 2007, 

Lugo’s judgment of sentence became final on June 25, 2007, when the ninetyday time period for filing a writ of certiorari with the United States Supreme 

Court expired. See 42 Pa.C.S.A. § 95454(b)(3). Thus, Lugo had until June 

25, 2008, to file a timely PCRA petition. As Lugo filed the instant petition in 

2017, it is patently untimely unless he satisfies his burden of pleading and 

proving that one of the enumerated exceptions applies. See Hernandez, 

supra.

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(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), (ii), and (iii).
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Although Lugo’s petition is untimely, he asserts that he meets two 

exceptions to the PCRA timeliness requirement, set forth in 42 Pa.C.S.A. §§ 

9545(b)(1)(i) and (ii). Lugo argues during his brother/codefendant’s 

resentencing hearing, new facts were revealed to him through recantation 

testimony. Geraldo Colon testified during the resentencing that he was 

“coached” by police to lie and exaggerate during the trial of Lugo’s 

brother/codefendant, Oscar. Lugo contends that he had known that Colon 

would lie during Oscar’s trial, but he did not know until the resentencing that 

the police were allegedly involved in facilitating these lies.

In support of his contention that his PCRA meets the timeliness 

requirement exceptions for government interference and newly discovered 

facts, Lugo argues:

On July 17, 2017, Geraldo Colon testified about the behavior 

of Troopers Cruz and Lohman. His testimony corroborated 

the recantation testimony of Luis Colon at Oscar Lugo’s 

PCRA hearing wherein Luis Colon testified that the assistant 

district attorney, Lohman and Cruz coached, invented and 

coerced false testimony. Nelson Lugo’s 7th PCRA petition 

was filed within 60 days of October 4, 2017, the date on 

which this Court granted leave to withdraw his appeal in 

Commonwealth v. Lugo, 252 EDA 2017. Mr. Lugo could 

not file the 7th PCRA petition while the 6th PCRA petition 

was pending.

The instant petition is based on new information 

developed at Oscar Lugo’s PCRA hearing and at Oscar Lugo’s 

resentencing. 

Until those hearings were held, Nelson Lugo had no 

reason to believe that the Government induced Luis Colon 

and Felix Reyes to commit perjury. [Lugo] assumed the 

witnesses would lie but he did not assume the Government 

would sponsor the lies.
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Lugo’s Brief at 16.

As such, Lugo’s petition hinges on the testimony that took place during 

his codefendant’s PCRA proceedings and resentencing hearing. Lugo 

embraces the recantation testimony of these witnesses as if the courts 

presiding over his brother’s hearings accepted such testimony as 

unquestioned truth. Lugo never addresses the fact that these courts deemed

that the recantation testimony lacked credibility, and, instead, accepted the

witnesses’ original testimony as factual. Lugo now argues that the recantation

testimony, which was already found to be incredible, should be the grounds 

for his PCRA relief. We disagree.

Although reviewing Pennsylvania courts have granted new trials and 

evidentiary hearings when a PCRA petition presented recantation testimony, 

they have done so when the recantation was found to be credible or when 

there was no credibility determination of the newly discovered facts. See 

Commonwealth v. D’Amato, 856 A.2d 806 (Pa. 2004); see also 

Commonwealth v. Medina, 92 A.3d 1210 (Pa. Super. 2014).

Our Supreme Court has stated the following in regards to recantation 

evidence:

We have held that, as a general matter, after-discovered 

evidence of this nature is notoriously unreliable, particularly 

where the witness claims to have committed perjury, and 

that post-verdict accomplice testimony must be viewed with 

a jaundiced eye. We have also said, however, even as to 

recantations that might otherwise appear dubious, the PCRA 

court must, in the first instance, assess the credibility and 

significance of the recantation in light of the evidence as a 

whole. In Commonwealth v. Williams, 732 A.2d 1167 
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(Pa. 2004), we were faced with the PCRA court's failure to 

make any independent determination as to the believability 

of the recanting person, where the PCRA court adopted the 

Commonwealth's argument on the matter wholesale. We 

remanded for a hearing at which the subject could be heard, 

noting that the PCRA court as fact finder is the appropriate 

entity to assess the credibility of the prospective testimony 

as reflected in the post-trial declaration. In D'Amato, the 

PCRA court did not mention the recantation in its opinion. 

We reiterated that the PCRA court, by failing to address the 

recantation in its opinion, had defaulted in its duty to assess

the credibility of that statement and its significance in light 

of the trial record, and therefore remanded for the limited 

purpose of making such determination.

Commonwealth v. Washington, 927 A.2d 586, 597 (Pa. 2007) (citations 

and quotations omitted).

In its opinion dismissing Lugo's petition, the PCRA court discussed

Colon’s recantation, and considered the evidence presented by Lugo. The 

PCRA court did not merely adopt the Commonwealth’s version of events, but 

instead, scrutinized the evidence of record, and noted that all of the evidence 

that Lugo relied on in support of his seventh PCRA petition, had at some point 

previously been found not credible by other courts.

Here, the PCRA court, unlike those in Williams and D'Amato, analyzed 

Colon's statements and noted that Lugo “[conveniently] came forward with 

his claims after the expiration of his probation in 2013 (during which he was 

required to cooperate with the Commonwealth) and now faces no 

repercussions for such claims.” Trial Court Opinion, 2/28/18, at 7-8. Further, 

the trial court recognized that Lugo presented no additional evidence that 

would bring into question the resentencing court’s credibility assessment of 
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Colon’s recantation testimony. The PCRA court concluded that the evidence 

presented was not persuasive and found Colon’s testimony was not

credible. Thus, the PCRA court, as fact-finder, assessed the credibility of 

Colon's recantation testimony and its significance in light of the history of the 

record, and properly denied Lugo relief.

In sum, Lugo has not established his claim falls within either the newlydiscovered evidence exception or the governmental interference exception to 

the PCRA's timeliness requirements. Therefore, the PCRA court correctly 

concluded that it lacked jurisdiction to consider the merits of the untimely 

petition. We therefore affirm its order denying post-conviction relief.

Order affirmed.

Judge Panella concurs in the result.

Judge Dubow concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/16/19