J-S09019-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOSE A. RUIZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1102 EDA 2023

Appeal from the PCRA Order Entered April 13, 2023

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0908941-1997

BEFORE: PANELLA, P.J.E., NICHOLS, J., and BECK, J.

MEMORANDUM BY NICHOLS, J.: FILED JUNE 11, 2024

Appellant Jose A. Ruiz appeals pro se from the order denying his second 

petition filed pursuant to the Post Conviction Relief Act (PCRA).1 On appeal, 

Appellant alleges ineffective assistance of counsel and that the PCRA court 

erred when it denied his request for post-conviction DNA testing. We affirm.

The PCRA court set forth the following factual and procedural history:

On July 13, 1997, at approximately 7:30 pm, Hiram Rojas Cuba 

was shot multiple times in the head and chest, and he died on the 

sidewalk near the intersection of Hancock and Sommerset Streets 

in Philadelphia. Two eyewitnesses to the shooting testified at the 

trial and identified [Appellant] as the shooter. [Appellant] was 

approximately six feet away from the victim when he fired the first 

shot, and the follow-up shots were made while the shooter stood 

over the victim, who laid on the sidewalk. After a bench trial, the 

[trial court] found [Appellant] guilty of first-degree murder and 

sentenced [Appellant] to life in prison without the possibility of 

parole.

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1 42 Pa.C.S. §§ 9541-9546.
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[Appellant] proceeded with the direct-appeal process, and, 

ultimately, his conviction was upheld by the Superior Court of 

Pennsylvania on September 23, 2004. Commonwealth v. Ruiz, 

[3182 EDA 2003,] 863 A.2d 1231 (Pa. Super. 2004) [(unpublished 

mem.)]. The Supreme Court of Pennsylvania denied allocatur. 

Commonwealth v. Ruiz, 881 A.2d 819 (Pa. 2005).

[Appellant] subsequently filed a timely petition pursuant to the 

[PCRA] in September [of] 2005. [Appellant] raised several claims 

of ineffective assistance of counsel, alleging that trial counsel 

failed to call two alibi witnesses, failed to preserve issues for 

appeal, and failed to file a motion to suppress certain evidence. 

After an evidentiary hearing, the [PCRA court] dismissed the PCRA 

petition on December 8, 2008. [Appellant] appealed the dismissal 

of his PCRA petition, and the Superior Court of Pennsylvania 

affirmed the [PCRA] court’s ruling. Commonwealth v. Ruiz, [42 

EDA 2009,] 996 A.2d 15 (Pa. Super. 2010) [(unpublished mem.)]. 

The Supreme Court of Pennsylvania denied allocatur. 

Commonwealth v. Ruiz, 3 A.3d 6[7]0 (Pa. 2010).

On April 3, 2020, [Appellant] filed the present petition/motion for 

DNA test [pursuant to] 42 Pa.C.S.[] § 9543.1. Although titled as 

requesting relief under Section 9543.1 relating to DNA testing, the 

contents of the petition raised issues beyond DNA testing which 

are more properly characterized as a second or subsequent PCRA. 

The [PCRA court] issued a notice [of intent to dismiss] pursuant 

to [Pa.R.Crim.P.] 907 on April 25, 2022, wherein [Appellant] was 

given an opportunity to address identified defects in the portions 

of his petition asserting standard PCRA claims. At the subsequent 

video status conference on June 21, 2022, [Appellant] 

acknowledged receipt of the notice and he indicated that he did 

not intend to pursue any relief except for the DNA request. 

Following that status conference, the [PCRA court] entered an 

order dismissing the standard PCRA portions of the petition.

With regard to the DNA request pursuant to Section 9543.1, the 

[PCRA court] scheduled a second video status conference because 

[Appellant] indicated at the June conference that he had not yet 

received the Commonwealth’s motion to dismiss [Appellant’s] 
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petition for post-conviction DNA testing, which was filed on June 

9, 2022.[2]

At the status conference on August 29, 2022, [Appellant] renewed 

his request for appointed counsel, which he first raised in his July 

18, 2022 filing. Because this was a first petition seeking DNA 

testing, the [PCRA court] granted [Appellant’s] request and 

appointed [Michael I. McDermott, Esq., (PCRA counsel) on 

Appellant’s behalf.]

In a subsequent status conference, after reviewing the trial 

record, appointed counsel indicated to the [PCRA court] that the 

petition for DNA testing lacked legal merit. A subsequent court 

date was scheduled so that [Appellant] could be present in the 

courtroom. On February 16, 2023, at a court date attended by 

[Appellant] in person, [PCRA counsel] again indicated that the 

DNA testing request lacked legal merit. At that same time, [PCRA 

counsel] provided both the [PCRA court] and [Appellant] with a 

copy of the no-merit letter, which was subsequently e-filed on 

February 22, 2023. [PCRA counsel] also represented at the 

hearing that he had discussed this decision with [Appellant] prior 

to the status conference.

In response to [PCRA counsel’s] no-merit letter, the [PCRA court] 

issued a second notice [of intent to dismiss] pursuant to 

[Pa.R.Crim.P.] 907 on February 24, 2023, which specifically 

identified the defect in the petition for DNA testing. [Appellant] 

filed a pro se response on March 24, 2023.

[3]

 The [PCRA court] 

subsequently issued an order dismissing the petition for DNA 

testing on April 13, 2023.

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2 On August 9, 2022, the Commonwealth disclosed to Appellant that 

Philadelphia Police Department homicide Detectives Kenneth Fleming and 

John Rossiter were involved in his case and were subject to investigations 

following allegations of misconduct.

3

In his Rule 907 response, Appellant noted that PCRA counsel had failed to 

address the issue regarding police misconduct by the officers involved in his 

case and argued that “there is an unconstitutional pattern and practice within 

the Philadelphia Police Department’s Homicide Unit of threatening, coercing 

and falsifying statements, and tampering with evidence [that] could be 

grounds for a new trial.” Appellant’s Rule 907 Resp., 3/24/23, at 2.
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PCRA Ct. Op., 5/26/23, at 1-4 (footnotes and some citations omitted and 

formatting altered).

Appellant filed a timely notice of appeal and a court-ordered Pa.R.A.P. 

1925(b) statement. The PCRA court issued an opinion addressing Appellant’s 

claim.

Appellant sets forth the following issues for our review:

1. Whether PCRA counsel was ineffective under Commonwealth 

v. Bradley, 261 A.3d 381 (Pa. 2021), for failing to investigate 

and raise a claim concerning the circumstances and the 

relevance of evidence relating to homicide detectives who were 

involved in investigating this case and have engaged in 

misconduct that necessitated disclosure by the Philadelphia 

District Attorney’s Office under Brady v. Maryland, 373 U.S. 

83 (1963)[?]

2. Whether the PCRA court committed error when it denied DNA 

testing in this matter under the particular circumstances of this 

case?

Appellant’s Brief at 4 (some formatting altered).

Ineffective Assistance of PCRA Counsel

In his first issue, Appellant contends that PCRA counsel was ineffective 

for failing to properly investigate the Commonwealth’s disclosure concerning 

allegations of police misconduct against homicide detectives assigned to 

Appellant’s case. Id. at 18. Appellant argues that the Commonwealth’s 

disclosure constitutes an exception to the PCRA’s jurisdictional time bar and 

that PCRA counsel “had a duty to conduct a reasonable investigation to 

determine whether there was a nexus between the misconduct histories of the 
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homicide detectives in this case and the methods which the evidence against 

[Appellant] was obtained.” Id. at 22-23.

Preliminarily, we note that Appellant raises this issue for the first time 

on appeal. Our Supreme Court has held that after a PCRA court denies relief 

in a timely filed first PCRA petition a PCRA petitioner may, after obtaining new 

counsel or acting pro se, raise claims of PCRA counsel’s ineffectiveness at the 

first opportunity to do so, even if on appeal. See Bradley, 261 A.3d at 405;

see also Commonwealth v. Stahl, 292 A.3d 1130, 1136 (Pa. Super. 2023). 

In reviewing an order denying a PCRA petition, our standard of review 

is well settled:

[O]ur standard of review from the denial of a PCRA petition is 

limited to examining whether the PCRA court’s determination is 

supported by the evidence of record and whether it is free of legal 

error. The PCRA court’s credibility determinations, when 

supported by the record, are binding on this Court; however, we 

apply a de novo standard of review to the PCRA court’s legal 

conclusions.

Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019) 

(citations omitted and formatting altered).

The timeliness of a PCRA petition is a threshold jurisdictional question. 

See Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014); see 

also Commonwealth v. Ballance, 203 A.3d 1027, 1031 (Pa. Super. 2019)

(stating that “no court has jurisdiction to hear an untimely PCRA petition” 

(citation omitted and emphasis omitted)). “A PCRA petition, including a 

second or subsequent one, must be filed within one year of the date the 
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petitioner’s judgment of sentence became final, unless he pleads and proves 

one of the three exceptions outlined in 42 Pa.C.S. § 9545(b)(1).” 

Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012) (citation and footnote 

omitted). A judgment of sentence becomes final at the conclusion of direct 

review, or at the expiration of time for seeking such review. See id. at 17; 

see also 42 Pa.C.S. § 9545(b)(3).

Courts may consider a PCRA petition filed more than one year after a 

judgment of sentence becomes final 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. § 9545(b)(1)(i)-(iii). A petitioner asserting one of these exceptions 

must file a petition within one year of the date the claim could have first been 

presented. See 42 Pa.C.S. § 9545(b)(2).

4

 It is the petitioner’s “burden to 

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4 On October 24, 2018, the General Assembly amended Section 9545(b)(2) 

and extended the time for filing a petition from sixty days to one year from 

the date the claim could have been presented. See 2018 Pa.Legis.Serv.Act 

2018-146 (S.B. 915), effective December 24, 2018. The amendment applies 

(Footnote Continued Next Page)
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allege and prove that one of the timeliness exceptions applies.” 

Commonwealth v. Albrecht, 994 A.2d 1091, 1094 (Pa. 2010) (citations 

omitted and some formatting altered).

Further, any “exceptions to the time bar must be pled in the PCRA 

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

v. F. Burton, 936 A.2d 521, 525 (Pa. Super. 2007) (citation omitted); see 

also Pa.R.A.P. 302(a) (providing that issues not raised before the lower court 

are waived and cannot be raised for the first time on appeal).

To establish the newly-discovered fact exception to the PCRA time bar, 

a petitioner must demonstrate that “he did not know the facts upon which he 

based his petition and could not have learned those facts earlier by the 

exercise of due diligence.” Commonwealth v. Brown, 111 A.3d 171, 176 

(Pa. Super. 2015) (citation omitted). Due diligence requires that the 

petitioner take reasonable steps to protect his own interests. Id. A petitioner 

must explain why he could not have learned these “new facts” earlier with the 

exercise of due diligence. Id. Further, the newly-discovered fact exception 

at Section 9545(b)(1)(ii) does not require any merits analysis of an underlying 

after-discovered evidence claim. Commonwealth v. Small, 238 A.3d 1267, 

1286 (Pa. 2020).

Our Supreme Court has repeatedly stated that “the newly-discovered 

facts exception to the time limitations of the PCRA, as set forth in [Section]

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only to claims arising one year before the effective date of this section, 

December 24, 2017, or thereafter.
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9545(b)(1)(ii), is distinct from the after-discovered evidence basis for relief 

delineated in 42 Pa.C.S. § 9543(a)(2).” Commonwealth v. S. Burton, 158 

A.3d 618, 629 (Pa. 2017). For purposes of the timeliness exception, “the 

majority of our Supreme Court believes that while we need not find a ‘direct 

connection’ between the newly-discovered facts and the claims asserted by a 

petitioner, the statutory language requires there be some relationship 

between the two.” Commonwealth v. Shannon, 184 A.3d 1010, 1017 (Pa. 

Super. 2018) (citation omitted).

Here, it is undisputed that Appellant’s instant petition is facially 

untimely, as it was filed more than fourteen years after his sentence became 

final in 2005. See 42 Pa.C.S. § 9545(b)(1). In his brief, Appellant claims 

that the Commonwealth’s disclosure concerning police misconduct “is newly 

discovered evidence which were [sic] ‘unknown’ to [Appellant] and could not 

have been ascertained by the exercise of due diligence.” Appellant’s Brief at 

22 (citation omitted and formatting altered).

Following our review of the record, we conclude that Appellant has failed 

to establish an exception to the PCRA time bar. As noted previously, while 

the newly-discovered facts timeliness exception at Section 9545(b)(1)(ii) does 

not require a “‘direct connection’ between the newly-discovered facts and the 

claims asserted by a petitioner,” there must be “some relationship between 

the two.” See Shannon, 184 A.3d at 1017. Here, Appellant did not explain 

how the “new facts”—i.e. allegations concerning misconduct by Detectives

Kenneth Fleming and John Rossiter of the Philadelphia Police Department—
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were specifically related to his case. See id. Therefore, Appellant has failed 

to properly invoke the newly-discovered fact exception.

Further, although Appellant cites Bradley, we note that Bradley applies 

to timely first PCRA petitions. See, e.g., Stahl, 292 A.3d at 1136. The 

decision in Bradley does not provide an avenue for relief from an order 

denying an untimely second PCRA petition. See id.; see also 

Commonwealth v. Mead, 646 MDA 2021, 2022 WL 984604, at *3 n.2 (Pa. 

Super. filed Apr. 1, 2022) (unpublished mem.) (holding that Bradley involved 

a timely first PCRA petition, and it did not apply to an appeal from an order 

denying an untimely PCRA petition).5 As noted above, the instant appeal 

involves Appellant’s second PCRA petition, which was untimely filed. 

Accordingly, Appellant’s reliance on Bradley is misplaced as this Court has 

declined to extend the holding of Bradley to cases which involve an untimely 

second PCRA petition, and Bradley does not provide a basis to overcome the 

PCRA time bar. See Commonwealth v. Aybar, 2636 EDA 2022, 2023 WL 

7323370, at *4 (Pa. Super. filed Nov. 7, 2023) (unpublished mem.). 

DNA Testing

Appellant contends that the PCRA court abused its discretion and 

committed an error of law when it denied Appellant’s request for DNA testing. 

Appellant’s Brief at 32. Specifically, Appellant argues that due to the 

“questionable testimony of the prosecution witnesses and the unwavering 

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5 See Pa.R.A.P. 126(b) (providing that this Court may cite to non-precedential 

decisions of this Court filed after May 1, 2019, for their persuasive value).
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defense evidence that [Appellant] was not the shooter, the exculpatory results 

from the DNA testing would undoubtedly establish [Appellant’s] innocence and 

raise serious doubt about the constitutionality of his conviction.” Id. at 31-

32 (citation omitted).

In reviewing Appellant’s request for DNA testing, our standard of review 

is as follows:

Generally, the trial court’s application of a statute is a question of 

law that compels plenary review to determine whether the court 

committed an error of law. When reviewing an order denying a 

motion for post-conviction DNA testing, this Court determines 

whether the movant satisfied the statutory requirements listed in 

Section 9543.1. We can affirm the court’s decision if there is any 

basis to support it, even if we rely on different grounds to affirm.

Commonwealth v. Walsh, 125 A.3d 1248, 1252-53 (Pa. Super. 2015) 

(citation omitted).

Section 9543.1 provides in relevant part:

(1) An individual convicted of a criminal offense in a court of this 

Commonwealth may apply by making a written motion to the 

sentencing court at any time for the performance of forensic DNA 

testing on specific evidence that is related to the investigation or 

prosecution that resulted in the judgment of conviction.

(2) The evidence may have been discovered either prior to or after 

the applicant’s conviction. The evidence shall be available for 

testing as of the date of the motion. If the evidence was 

discovered prior to the applicant’s conviction, the evidence shall 

not have been subject to the DNA testing requested because the 

technology for testing was not in existence at the time of the trial 

or the applicant’s counsel did not seek testing at the time of the 

trial in a case where a verdict was rendered on or before January 

1, 1995, or the evidence was subject to the testing, but newer 

technology could provide substantially more accurate and 

substantially probative results, or the applicant’s counsel sought 

funds from the court to pay for the testing because his client was 
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indigent and the court refused the request despite the client’s 

indigency.

42 Pa.C.S. § 9543.1(a)(1)-(2).

It is well settled that a request for DNA testing under Section 9543.1 is 

not subject to the PCRA time bar. See Commonwealth v. Williams, 35 A.3d 

44, 50 (Pa. Super. 2011). Rather, “DNA testing may be sought at any time if 

the motion is made in a timely manner and for the purpose of demonstrating 

the applicant’s actual innocence and not to delay the execution of sentence or 

administration of justice.” 42 Pa.C.S. § 9543.1(a)(4); see also id. at §

9543.1(d)(1)(iii) (providing that the court shall order DNA testing if the court 

concludes, among other things, that the motion was made in a timely 

manner).

“In analyzing timeliness for purposes of Section 9543.1(d)(1)(iii), the 

court must consider the facts of each case to determine whether the 

applicant’s request for post-conviction DNA testing is to demonstrate his 

actual innocence or to delay the execution of sentence or administration of 

justice.” Walsh, 125 A.3d at 1255 (citation omitted).

Additionally, an individual seeking relief under this statute must present 

a prima facie case demonstrating that the

(i) identity of or the participation in the crime by the perpetrator 

was at issue in the proceedings that resulted in applicant’s 

conviction and sentencing; and

(ii) DNA testing of the specific evidence, assuming exculpatory 

results, would establish:
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(A) the applicant’s actual innocence of the offense for which 

the applicant was convicted[.]

42 Pa.C.S. § 9543.1(c)(3)(i)-(ii)(A); see also id. at § 9543.1(d)(1)(iii),

(d)(2)(i) (addressing actual innocence requirements).

Further, this Court has explained that

the mere absence of a defendant’s DNA, by itself, does not satisfy 

the “actual innocence” requirement under section 9543.1(d)(2)(i).

Rather, a petitioner must present some quantum of additional 

evidence in addition to the absence of petitioner’s DNA to establish 

entitlement to relief.

The quantum of evidence necessary to satisfy section 

9543.1(d)(2)(i) above and beyond the absence of the applicant’s 

DNA has never been explicitly defined and must be evaluated on 

a case-by-case basis.

Commonwealth v. Tyler, 234 A.3d 750, 754 (Pa. Super. 2020) (citations 

and footnote omitted).

Further, this Court has stated that this standard requires “a reviewing 

court to make a probabilistic determination about what reasonable, properly 

instructed jurors would do, if presented with the new evidence.” 

Commonwealth v. Conway, 14 A.3d 101, 109 (Pa. Super. 2011) (citation 

omitted and formatting altered). To do so, the PCRA court “is required to 

review not only the motion for DNA testing, but also the trial record, and then 

make a determination as to whether there is a reasonable possibility that DNA 

testing would produce exculpatory evidence that would establish petitioner’s 

actual innocence.” Williams, 35 A.3d at 50 (citation omitted and formatting 

altered).
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Here, the PCRA court reached the following conclusion:

In the present petition, [Appellant] requested that the [PCRA 

court] order DNA testing of three specific pieces of evidence: (1) 

“hairs exhibiting [N]egro characteristics” from [the] victim’s 

clothing; (2) “numerous blood samples taken from the crime 

scene;” and (3) “one black hair, exhibiting Hispanic 

characteristics.” The Commonwealth agreed at least the hairs and 

the victim’s clothing still existed and were available for DNA 

testing.

The present petition failed to present a prima facie case that the 

DNA testing, assuming exculpatory results, would establish 

[Appellant’s] actual innocence because [Appellant] failed to show 

a nexus between the samples requested for testing and the 

perpetrator of the murder. During the trial, the evidence was that 

the victim, Mr. Cuba, was shot from a distance of three to six feet. 

There was also no evidence that the shooter sustained any injuries 

of any kind, so there is no reason to believe that any blood on the 

scene belonged to the shooter. The evidence further showed that 

Mr. Cuba fell on the sidewalk near a busy intersection with heavy 

foot traffic. Therefore, the blood and hairs requested for DNA 

testing do not necessarily belong to the person who killed Mr. 

Cuba.

Additionally, the evidence of “hairs exhibiting [N]egro

characteristics” was already known to belong to a person of a race 

different than [Appellant]. Therefore, if DNA test results showed 

the sample does not match [Appellant], it would have no change 

in the information available at the time of trial because it was 

already known that the sample did not match [Appellant].

Moreover, the evidence proving [Appellant] was the perpetrator 

was not circumstantial. Two eyewitnesses saw [Appellant] 

arguing with the victim, and then they saw [Appellant] repeatedly 

shoot the victim. Both witnesses were outside on the same block 

where the shooting occurred. The shooting occurred at 7:30 in 

the evening in July – meaning that it was still daylight.

For all these reasons, even if the DNA testing came back with 

results showing that the blood and hairs at the scene did not come 

from [Appellant], there is no reasonable possibility that it would 

establish [Appellant’s] innocence. Therefore, pursuant to 42 

Pa.C.S. § 9543.1(a)(6)(i) & (c)(3)(ii)(A), [Appellant] is not eligible 
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for relief under the PCRA for DNA testing, because his petition fails 

to present a prima facie case that the DNA testing, assuming 

exculpatory results, would establish his actual innocence.

PCRA Ct. Op., 5/26/23, at 5-6 (citations omitted).

Based on our review of the record, we agree with the PCRA court that 

Appellant failed to present a prima facie case that the requested DNA testing 

would establish his actual innocence. See Tyler, 234 A.3d at 754; Walsh, 

125 A.3d at 1252-53. Indeed, as this Court noted on direct appeal, multiple 

eyewitnesses saw Appellant shoot the victim while the victim lay on the 

ground. See Commonwealth v. Ruiz, 3182 EDA 2003 at 4 (Pa. Super. filed 

Sept. 23, 2004) (unpublished mem.).6 For these reasons, Appellant is not 

entitled to relief, and we affirm the PCRA court’s order denying Appellant’s 

PCRA petition.

Order affirmed. Jurisdiction relinquished.

Date: 6/11/2024

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6 We may cite to an unpublished memorandum that “recites issues raised and 

reasons for a decision affecting the same defendant in a prior action or 

proceeding.” Pa.R.A.P. 126(d).