J-S40034-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v.

WILFREDO CABALLERO 

 Appellant No. 2272 MDA 2013 

Appeal from the PCRA Order November 21, 2013 

In the Court of Common Pleas of York County 

Criminal Division at No(s): CP-67-CR-0000727-1989 

BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY PANELLA, J.: FILED AUGUST 20, 2014 

 Appellant, Wilfredo Caballero, appeals from the order dismissing his 

petition pursuant to the Post Conviction Relief Act (“PCRA”). After careful 

review, we remand. 

 On August 30, 1990, Caballero was convicted of committing first 

degree murder as a 14-year-old. The trial court sentenced Caballero to life 

imprisonment without the possibility of parole. Caballero concedes that he 

has filed previous PCRA petitions, but filed a pro se petition on September 5, 

2012, asserting that his sentence was illegal pursuant to the United States 

Supreme Court decision in Miller v. Alabama, 132 S.Ct. 2455 (2012). On 

October 30, 2013, the Supreme Court of Pennsylvania held that Miller was 

not retroactive, and therefore offered no relief to petitioners, such as 
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Caballero, whose sentences were already final. See Commonwealth v. 

Cunningham, 81 A.3d 1 (Pa. 2013). 

 Caballero filed a counseled motion to amend his PCRA petition, 

presenting additional arguments based upon Cunningham, specifically, 

upon Chief Justice Castille’s concurring opinion. One week later, the PCRA 

court entered the instant order, dismissing Caballero’s “Post Conviction 

Collateral Relief Petition filed September 5, 2012.” The PCRA court’s order 

does not reference the pending motion to amend. 

 On appeal, Caballero argues that the PCRA court erred by not 

addressing the issues raised in his motion to amend and requests a 

remand.1

 Under the Rules of Criminal Procedure, Rule 905(A), a PCRA court 

may grant leave to amend a petition “at any time.” Commonwealth v. 

Boyd, 835 A.2d 812, 816 (Pa. Super. 2003) (emphasis in original) (citation 

omitted). Amendment of a petition should be “freely allowed to achieve 

substantial justice.” Id. (citation omitted). Rule 905(A) has been 

____________________________________________ 

1 The Commonwealth argues that Caballero has waived the PCRA court’s 

failure to address the issues raised in his motion to amend by failing to 

include this argument in his Concise Statement of Matters pursuant to R.A.P. 

1925. However, our review of the Concise Statement reveals that Caballero 

does challenge the PCRA court’s failure to grant relief upon arguments 

contained only in his motion to amend. See Concise Statement of Errors 

Complained of on Appeal, 1/15/2014, at ¶ 1 (arguing that his sentence 

violates Article I, Section 13 of the Pennsylvania Constitution); ¶ 2 (arguing 

that Cunningham has created an “uneven state law effect” and therefore 

his sentence violates the U.S. and Pennsylvania Constitutions); ¶ 3 (arguing 

that Cunningham has foreclosed relief pursuant to the PCRA and as a result 

requesting habeas corpus relief). 
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interpreted to “expressly allow[] a trial court substantial latitude to permit 

the amendment of the petition at any time after the petition’s initial filing.” 

Id. (citation omitted). 

 Here, there is no indication that the PCRA court was aware, let alone 

considered, Caballero’s motion to amend his PCRA petition. As the PCRA 

court has “substantial latitude” in whether to grant amendment, we must 

remand this case back to the PCRA court to consider and explicitly rule on 

Caballero’s motion to amend.

 Case remanded. Jurisdiction relinquished. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/20/2014