J-S37025-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

GABRIEL GONZALEZ,

Appellant No. 2115 EDA 2014

Appeal from the PCRA Order July 11, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0303521-2000

BEFORE: GANTMAN, P.J., SHOGAN, and LAZARUS, JJ.

MEMORANDUM BY SHOGAN, J.: FILED JULY 07, 2015

Appellant, Gabriel Gonzalez, appeals pro se from the order denying his 

third petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 

Pa.C.S. §§ 9541-9546. We affirm.

In addressing Appellant’s direct appeal, this Court summarized the 

history of this case as follows:

On the evening of February 29, 2000, Vincent Green was 

working as a pizza delivery driver in Philadelphia. At 

approximately 11:00 p.m. the manager of the pizza shop gave 

Green some pizzas to deliver. As Green conversed with 

Mr. Sulpizio, his manager, Appellant entered Green’s unlocked 

delivery vehicle. Realizing that the interior light might alert 

someone to his presence, Appellant ripped out the dome light in 

the vehicle. When Green entered his delivery vehicle, he sat 

down and then noticed Appellant in the back seat. Green then 

began throwing money at Appellant. Despite the fact that Green 

surrendered his money without a fight, Appellant pointed his gun 

at Green and shot him in the chest at point blank range. After 

hearing the gunshot, Mr. Sulpizio glanced outside and noticed a 
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man about 5’8” or 5’9” exit Green’s car and flee. Green 

stumbled back into the pizza shop and collapsed in front of his 

manager. Mr. Sulpizio called 911 and Green was rushed to the 

hospital. Unfortunately, Green was pronounced dead at the 

hospital a few hours later.

The following day police officers were summoned to a 

sporting goods store by a security guard. The security guard 

informed the officers that a man (Appellant), sitting in a parked 

automobile, had just stolen a pair of sneakers. The police 

approached Appellant and retrieved the sneakers. The police 

subsequently arrested Appellant for retail theft.

Early the next morning, while Appellant was still in jail on 

the retail theft charge, the police received an anonymous phone 

call, implicating Appellant in the murder of Green. At 

approximately 4:45 a.m. that morning, Detective Gross 

b[r]ought Appellant into an interview room at the homicide unit. 

Gross told Appellant he wished to speak with him regarding the 

murder of Green. Gross read Appellant his Miranda warnings. 

When Gross finished reading Appellant these warnings, Appellant 

stated “you might find my fingerprints inside the car because 

Green asked me to fix his inside light.” Gross immediately 

ceased speaking with Appellant, left the interview room, and 

retrieved a portable typewriter. Gross also b[r]ought Detective 

McGuffin into the interview room. Again, Gross read Appellant 

his Miranda warnings, and McGuffin typed them out on the 

typewriter. Appellant read each of the warnings and initialed 

and signed his name. Gross left McGuffin to complete the 

interview with Appellant. After one and one-half hours, 

Appellant confessed to the shooting.

Appellant stated that on the night in question he had split 

a six-pack of beer with his friend, “Shiz”. At 11:00 p.m., Shiz 

left to see his girlfriend and Appellant went home and retrieved 

his handgun. Appellant stated that he entered Green’s car and 

hid in the backseat. When Green entered the car, he saw 

Appellant lying in the backseat and began throwing money at 

him. Appellant then shot Green and fled with approximately two 

hundred dollars. Appellant explained that he fled down an alley 

towards his house, threw the gun into his backyard, and hid 

when he saw police looking for him. Appellant indicated that he 

had gone to the sporting goods store the following day and stole 
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the sneakers because he felt “bad” for what he had done to 

Green the previous night, and he wanted to get caught.

At approximately 11:00 a.m. that morning Mr. Serota, an 

attorney purporting to represent Appellant, arrived at the police 

station. Gross showed Serota Appellant’s signed statement and 

b[r]ought him in to speak privately with Appellant. Later that 

day, the police executed a search warrant for Appellant’s 

residence. In the basement of the residence, police found the 

clothes Appellant claimed he was wearing on the night of the 

murder, and a gun box for a .45 caliber handgun. The police, 

however, were unable to ascertain the whereabouts of the 

handgun.

The Commonwealth charged Appellant with murder, 

robbery and possession of an instrument of crime. Prior to trial, 

Appellant retained new counsel. Appellant filed a pretrial motion 

to suppress any statements he had made to the police while in 

custody. Appellant alleged detectives Gross and McGuffin beat 

and choked him in the interrogation room, and that is why he 

confessed. Mr. Serota testified that Appellant told him the two 

detectives had beaten and choked him until he confessed. The 

suppression court ruled Appellant’s statements to the police were 

voluntary, and denied Appellant’s motion to suppress.

Appellant proceeded to a jury trial. At trial, Detective 

Edward Davis testified that he had received an anonymous call 

on the day after Appellant’s arrest. As a result of that call, he 

ascertained the whereabouts of Appellant, and arranged to have 

him transported to the homicide unit for questioning. Appellant’s 

counsel did not object to this testimony. The Commonwealth 

also introduced evidence concerning Appellant’s arrest for retail 

theft on the day following the murder. Once again, Appellant’s 

counsel did not lodge an objection to the introduction of this 

testimony. Appellant also supplied counsel with the names of 

alibi witnesses as well as witnesses who would testify regarding 

Appellant’s reputation for peacefulness in the community. 

Appellant’s counsel chose not to call these witnesses at trial. 

The jury convicted Appellant of second degree murder, robbery, 

and possession of an instrument of crime. The court sentenced 

Appellant to life imprisonment.
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Commonwealth v. Gonzales, 2019 EDA 2001, 809 A.2d 956 (Pa. Super. 

filed August 7, 2002) (unpublished memorandum at 1-5) (footnote and 

citations omitted).1

On August 7, 2002, this Court affirmed Appellant’s judgment of 

sentence in an unpublished memorandum. Gonzales, 2019 EDA 2001. Our 

Supreme Court denied Appellant’s petition for allowance of appeal on 

September 3, 2004. Commonwealth v. Gonzales, 858 A.2d 108 (Pa. 

2004).

On February 9, 2004, Appellant filed a timely pro se PCRA petition and 

the PCRA court appointed counsel. Counsel filed amended PCRA petitions 

and the PCRA court held an evidentiary hearing. The PCRA court ultimately 

dismissed the first PCRA petition on May 18, 2007. This Court affirmed the 

denial of PCRA relief and our Supreme Court denied allowance of appeal on 

January 16, 2009. Commonwealth v. Gonzalez, 1586 EDA 2007, 961 

A.2d 1275 (Pa. Super. filed August 18, 2008) (unpublished memorandum), 

appeal denied, 964 A.2d 1 (Pa. 2009).

On June 28, 2010, Appellant filed a second PCRA petition, which the 

PCRA court ultimately dismissed on February 24, 2012. This Court affirmed 

the denial of PCRA relief and our Supreme Court denied allowance of appeal 

____________________________________________

1

 We note that in Appellant’s direct appeal his last name was spelled 

Gonzales. However, in subsequent proceedings his last name has been 

spelled Gonzalez.
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on June 7, 2013. Commonwealth v. Gonzalez, 826 EDA 2012, 64 A.3d 25 

(Pa. Super. filed December 18, 2012) (unpublished memorandum), appeal 

denied, 68 A.3d 907 (Pa. 2013).

On October 17, 2013, Appellant filed the instant PCRA petition. In an 

order dated June 30, 2014, the PCRA court dismissed the PCRA petition as 

untimely filed. The docket in the certified record reflects that the PCRA 

court’s order was sent to the parties on July 11, 2014. This pro se appeal 

followed.

In his brief, Appellant presents the following issues for review, which 

we set forth verbatim:

1. Did the PCRA Court violate’s 5th,6th, And 14th Amendment 

rights as well as Article I, Section nine of the Pennsylvania 

Constitution. The PCRA Court also violated Canon 1 and Canon 

2-A when the court dismissed Appellate’s subsequent PCRA

Petition filed under 42 Pa. C.S.A. § 9545 (b) (i) (ii), without 

addressing Appellate’s submitted Issues?

2. Did the Commonwealth withheld exculpatory evidence 

concerning the anonymous caller and the investigation that led 

them to believe that Alec Hector was the caller to support the 

probable cause for the arrest warrant which is a clear 

“Miscarriage of Justice”, Thus rendering the Appellate Actually 

Innocent?

3. Did Trial, Direct Appeal, And PCRA Counsel render ineffective 

for failing to raise the validity of the Probable Cause of the arrest 

warrant via suppression hearing?

Appellant’s Brief at 3.

Our standard of review of an order denying PCRA relief is whether the 

record supports the PCRA court’s determination and whether the PCRA 
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court’s determination is free of legal error. Commonwealth v. Phillips, 31 

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877 

A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be 

disturbed unless there is no support for the findings in the certified record. 

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 

2001)).

A PCRA petition must be filed within one year of the date that the 

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time 

requirement is mandatory and jurisdictional in nature, and the court may not 

ignore it in order to reach the merits of the petition. Commonwealth v. 

Murray, 753 A.2d 201, 203 (Pa. 2000). A judgment of sentence “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. 

§ 9545(b)(3).

However, an untimely petition may be received when the petition 

alleges, and the petitioner proves, that any of the three limited exceptions to 

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), 
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and (iii), is met.2 A petition invoking one of these exceptions must be filed 

within sixty days of the date the claim could first have been presented. 42 

Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions to the 

PCRA’s one-year filing deadline, “the petitioner must plead and prove 

specific facts that demonstrate his claim was raised within the sixty-day time 

frame” under section 9545(b)(2). Carr, 768 A.2d at 1167.

Our review of the record reflects that the trial court imposed a 

sentence of life imprisonment on February 21, 2001. This Court affirmed 

Appellant’s judgment of sentence on August 7, 2002, and the Pennsylvania 

Supreme Court denied allowance of appeal on September 3, 2004. The 

record does not reflect that Appellant sought review in the United States 

Supreme Court. Accordingly, Appellant’s judgment of sentence became final 

____________________________________________

2

 The exceptions to the timeliness requirement are:

(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. § 9545(b)(1)(i), (ii), and (iii).
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on December 2, 2004, ninety days after the Pennsylvania Supreme Court 

denied Appellant’s petition for allowance of appeal and the time for filing a 

petition for review with the United States Supreme Court expired. 42 

Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.R. 13. Appellant did not file the instant 

PCRA petition until October 17, 2013. Thus, the instant PCRA petition is 

patently untimely.

As previously stated, if a petitioner does not file a timely PCRA 

petition, his petition may nevertheless be received under any of the three 

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S. 

§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file 

his petition within sixty days of the date that the exception could be 

asserted. 42 Pa.C.S. § 9545(b)(2).

The record reflects Appellant attempted to raise, in the instant PCRA 

petition, the exception that the facts upon which his claim is predicated were 

unknown to Appellant, 42 Pa.C.S. § 9545(b)(1)(ii). Regarding this 

exception, this Court has stated the following:

In order to sustain an untimely PCRA petition under the 

after-discovered evidence exception, a petitioner must show that 

the evidence: (1) has been discovered after the trial and could 

not have been obtained prior to the conclusion of the trial by the 

exercise of reasonable diligence; (2) is not merely corroborative 

or cumulative; (3) will not be used solely for impeachment 

purposes; and (4) is of such a nature and character that a 

different verdict will likely result if a new trial is granted.

Commonwealth v. Johnson, 841 A.2d 136, 140-141 (Pa. Super. 2003). 

Furthermore, our Supreme Court has stated that “[a] claim which rests 
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exclusively upon inadmissible hearsay is not of a type that would implicate 

the after-discovered evidence exception to the timeliness requirement, nor 

would such a claim, even if timely, entitle Appellant to relief under the 

PCRA.” Commonwealth v. Yarris, 731 A.2d 581, 592 (Pa. 1999). In 

addition, our Supreme Court explained that “the after-discovered facts 

exception focuses on facts, not on a newly discovered or newly willing 

source for previously known facts[.]” Commonwealth v. Marshall, 947 

A.2d 714, 721 (Pa. 2008) (emphasis in original; internal quotation marks 

and citation omitted). See also Commonwealth v. Abu-Jamal, 941 A.2d 

1263, 1269 (Pa. 2008) (concluding that alleging a new conduit for a 

previously known fact “does not transform [the] latest source into evidence 

falling within the ambit of § 9545(b)(1)(ii)”) (citation omitted).

Instantly, Appellant claims that he is entitled to PCRA relief on the 

basis of after-discovered evidence consisting of affidavits he obtained from 

two fellow inmates, as well as his own affidavit. The PCRA court found no 

merit to Appellant’s assertion, and addressed his claim as follows:

Here, [Appellant] submits as after-discovered evidence, 

and the basis for a new trial, three purported affidavits, one from 

himself and two others from fellow inmates allegedly in 

possession of information that he did not possess at the time of 

his trial. [Appellant’s] claim is, however, based on inadmissible 

hearsay that cannot be the basis for a new trial, therefore his 

after-discovered evidence claim is meritless. Each purported 

after-discovered evidence document will be analyzed below.
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The first document is submitted by SCI Houtzdale inmate 

Clifford Terlonge and is in fact not an affidavit, but rather an 

unsigned and undated recitation of hearsay from Ale[c] Hector[3] 

stating what Mr. Hector allegedly told [Mr. Terlonge] about 

events surrounding decedent’s murder. The document also 

contains a statement from Mr. Terlonge that he told Officer 

Holman that he and Mr. Hector were together the night of the 

decedent’s murder. As this court stated at [Appellant’s] May 29, 

2014 status hearing, to satisfy the PCRA time-bar, afterdiscovered evidence must be “producible and admissible.” 

Accordingly, given that there is no hearsay exception to the 

admissibility requirements for the after-discovered evidence 

exception, this court properly found that [Appellant] was not 

entitled to a new trial based on Mr. Terlonge’s statement. 

Furthermore, as with Ale[c] Hector’s affidavit submitted with 

[Appellant’s] second petition, it is clear that the contents of 

Mr. Terlonge’s statement could only be used to impeach 

Officer Holman’s testimony.

The second document, an affidavit submitted by SCI 

Houtzdale inmate Tyree Bush, also fails to provide the basis for a 

new trial because it too is inadmissible hearsay. In his affidavit, 

Mr. Bush claims that he observed Mr. Terlonge’s encounter with 

Officer Holman, fourteen (14) years ago. Indeed, Mr. Bush’s 

affidavit merely confirms what Mr. Terlonge allegedly said to 

Officer Holman, and as such is also inadmissible hearsay that 

cannot be the basis for a new trial. Even if admissible, the Bush 

evidence could only be used to impeach the testimony of Officer 

Holman. Thus, this court properly found it insufficient to 

overcome the PCRA time-bar.

In his own affidavit, [Appellant] explains how he first 

became aware of this “after-discovered evidence” on August 28, 

____________________________________________

3

 In his untimely second PCRA petition, Appellant presented an affidavit 

from Alec Hector, in which Hector stated that the police knew his identity, 

that Hector called the police station and falsely accused Appellant of the 

murder, and Hector was afraid of being implicated in the murder himself. 

Commonwealth v. Gonzalez, 826 EDA 2012, 64 A.3d 25 (unpublished 

memorandum) at 10. Also in the second PCRA petition, Appellant included 

an affidavit from fellow inmate Chester Wiles averring that Hector admitted 

to Wiles that Hector falsely accused Appellant of murder. Id.
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2013. Therein, he stated that fellow inmates Terlonge and Bush 

approached him while in state incarceration and disclosed the 

aforementioned information about the night of decedent’s 

murder fourteen (14) years earlier. [Appellant’s] affidavit 

merely states that he filed this third petition within sixty (60) 

days of becoming aware of the aforementioned inadmissible 

hearsay evidence. Nevertheless, for the reasons stated above, 

[Appellant] is not entitled to relief.

As in Yarris, the trial record herein amply demonstrates 

that [Appellant’s] evidence which purportedly reveals that 

someone else committed the murder for which he was convicted 

is not within any exception to the PCRA time-bar.

[Appellant] claims that he is entitled to a new trial under 

the PCRA because the facts stated in the purported affidavits 

were unknown to him and could not have otherwise been 

obtained prior to trial. Third Petition for Post-Conviction Relief at 

17, Commonwealth v. Gonzalez, No. 2115 EDA 2014. 

[Appellant] has, however, failed to prove that the information 

allegedly discovered on August 28, 2013, and contained in the 

submitted documents could not have been obtained by the 

exercise of reasonable diligence prior to the conclusion of the 

trial. [Appellant] also claims that the after-discovered evidence 

contained in the submitted documents is not cumulative or 

corroborative of any evidence presented at trial. Id. at 18. In 

fact, [Appellant] insists that Officer Holman’s testimony denying 

his own presence at the scene of the murder is false and that the 

evidence implicates a new suspect. Id. at 18, 19. Yet, in 

assessing the content of the evidence as a whole, [Appellant] 

has not provided sufficient proof that the documents submitted 

are not merely corroborative or cumulative of evidence 

previously submitted in prior PCRA petitions.

Moreover, even if the foregoing affidavits constituted 

admissible after-discovered evidence, absent significant 

indication that it [sic] will not be used solely for impeachment 

purposes, [Appellant] has failed to overcome the time bar for 

PCRA relief. [Appellant] asserts that in spite of the 

Commonwealth’s overwhelming evidence, including his eight 

page statement to the police, which contains his confession to 

decedent’s murder, the submitted documents support 

[Appellant’s] innocence and prove the need for a new trial. 

However, as the trial record aptly demonstrates, the evidence 
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presented against [Appellant] was overwhelming. Inasmuch as 

the record contains [Appellant’s] confession to the murder for 

which he was convicted, and over a dozen discrete facts from 

that confession that were documented by independent evidence, 

[Appellant] has failed to establish that the new evidence would 

compel a different verdict. Thus, where [Appellant] only offers 

as after-discovered evidence unauthenticated and inadmissible 

affidavits of himself and two fellow inmates, he has failed to 

prove the need for a new trial or to plead and prove specific 

facts that demonstrate his claim was actually raised within the 

60 day time frame as required under subsection 9545(b)(1)(ii).

PCRA Court Opinion, 12/3/14, at 10-13.

We agree with the PCRA court’s analysis and likewise conclude that, 

even if the affidavits did present admissible evidence, they would be used 

only to impeach the testimony of the police relating to the events 

surrounding the investigation of Appellant as the murderer. Moreover, by 

employing new affidavits pertaining to Alec Hector, Appellant cannot now 

rely on “newly willing source[s] for [this] previously known fact[],” and his 

attempt to invoke the newly-discovered facts exception to the PCRA 

timeliness requirements lacks merit. Commonwealth v. Marshall, 947 

A.2d at 721. Therefore, it is our determination that the PCRA court did not 

err in finding that Appellant’s instant PCRA petition is untimely and that no 

exceptions to the timeliness provision applies.

Consequently, because Appellant’s third PCRA petition was untimely 

and no exceptions apply, the PCRA court lacked jurisdiction to address the 

claims presented and grant relief. See Commonwealth v. Fairiror, 809 

A.2d 396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction 
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to hear untimely petition). Likewise, we lack the authority to address the 

merits of any substantive claims raised in the PCRA petition. See 

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007) 

(“[J]urisdictional time limits go to a court’s right or competency to adjudicate

a controversy.”).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/7/2015