J-S10007-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ARKEL GARCIA 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1983 EDA 2022

Appeal from the PCRA Order Entered July 22, 2022

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0004845-2015

BEFORE: PANELLA, P.J., LAZARUS, J., and STABILE, J.

MEMORANDUM BY PANELLA, P.J.: FILED MAY 15, 2023

Arkel Garcia appeals from the order entered in the Philadelphia County 

Court of Common Pleas on July 22, 2022, dismissing his petition filed pursuant 

to the Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541-9546. 

Because we agree with the PCRA court that Garcia’s petition was untimely and 

he failed to plead and prove an exception to the PCRA time-bar, we affirm the 

PCRA court’s order denying the PCRA petition. 

On November 5, 2015, Garcia entered an open guilty plea to aggravated 

assault and disarming a law enforcement officer. The factual basis for the plea, 

as set forth by the Commonwealth, described Garcia’s instigation of a 

courtroom fracas. Earlier that same year, on February 17, 2015, a jury found 

Garcia guilty of second-degree murder. When the Judge asked Garcia to rise 

after the verdict was issued, Garcia shoved his chair back, striking a sheriff. 
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When the sheriff attempted to remove Garcia from the courtroom, a struggle 

ensued. Garcia subsequently punched the sheriff and attempted to wrestle his 

gun from its holster, while yelling expletives. The weapon was eventually 

secured and Garcia was taken into custody. 

The trial court sentenced Garcia to an aggregate term of five years and 

one day to fifteen years’ incarceration, to run concurrently to the murder 

sentence of life imprisonment. Garcia did not file any post-sentence motions 

or a direct appeal. 

On June 4, 2021, Garcia’s murder conviction was vacated. Garcia 

subsequently filed a request for parole under the instant docket, as he had 

already served the minimum term of his sentence. The request was denied 

based on numerous reasons including unacceptable compliance with 

institutional programs, institutional behavior including reported misconduct, 

and level of risk to the community. See Notice of Board Decision, 10/19/21. 

On November 17, 2021, Garcia filed the instant, counseled PCRA 

petition, alleging his guilty plea was unknowing and involuntary based on the 

new fact of his exoneration. The Commonwealth filed a motion to dismiss, 

arguing the petition is time-barred and meritless. After receiving Garcia’s 

response, the PCRA court issued notice of its intent to dismiss the petition 

without a hearing pursuant to Pa.R.Crim.P. 907. The PCRA court later 

dismissed the petition as untimely. This timely appeal followed. 
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Prior to reaching the merits of Garcia’s claims on appeal, we must first 

consider the timeliness of his PCRA petition. See Commonwealth v. Miller, 

102 A.3d 988, 992 (Pa. Super. 2014).

A PCRA petition, including a second or subsequent one, must be 

filed within one year of the date the petitioner’s judgment of 

sentence becomes 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 this 

Court or the United States Supreme Court, or at the expiration of 

the time for seeking such review. 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) (internal citations 

and footnote omitted). 

Since Garcia did not file a post-sentence motion or a direct appeal, his 

judgment of sentence became final on December 9, 2015, when his time for 

seeking direct review with this Court expired. See 42 Pa.C.S.A. § 9545(b)(3) 

(judgment of sentence becomes final “at the conclusion of direct review ... or 

at the expiration of time for seeking the review”). Therefore, Garcia had until 

December 9, 2016, to timely file a PCRA petition in this matter. The instant 

petition – filed almost 5 years later – is patently untimely. Therefore, the PCRA 

court lacked jurisdiction to review Garcia’s petition unless he was able to 

successfully plead and prove one of the statutory exceptions to the PCRA’s 

time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). 
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The PCRA provides three exceptions to its time bar: 

(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.A. § 9545(b)(1)(i)-(iii). Exceptions to the time-bar must be pled in 

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

Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007); 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).

In his petition, Garcia asserts he meets the requirements of Section 

9545(b)(1)(ii), i.e., the newly discovered fact exception to the PCRA’s timebar, “because the consequences of pleading guilty to the charges stemming 

from his courtroom outburst were not known to [Garcia] until he was 

exonerated in June of 2021.” PCRA Petition, 11/7/21, at 8. 

Section 9545(b)(1)(ii) “requires [a] petitioner to allege and prove that 

there were ‘facts' that were ‘unknown’ to him” and that he could not have 

ascertained those facts by the exercise of “due diligence.” See 

Commonwealth v. Bennett, 930 A.2d 1264, 1270-72 (Pa. 2007). “The focus 
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of the exception is on the newly discovered facts, not on a newly discovered 

or newly willing source for previously known facts.” Commonwealth v. 

Marshall, 947 A.2d 714, 720 (Pa. 2008) (citation and brackets omitted). “Due 

diligence demands that the petitioner take reasonable steps to protect his own 

interests. A petitioner must explain why he could not have learned of the new 

fact(s) earlier with the exercise of due diligence.” Commonwealth v. 

Williams, 35 A.3d 44, 53 (Pa. Super. 2011) (citations omitted). Further, the 

“fact” on which the petitioner predicates his claim to an exception to the timebar must bear some logical connection to a plausible claim for relief. See 

Commonwealth v. Robinson, 185 A.3d 1055, 1062 (Pa. Super. 2018) (en 

banc).

Here, Garcia argues he should be able to withdraw his guilty plea related 

to his courtroom outburst based on the newly discovered fact that his murder 

conviction was overturned. While Garcia’s outburst occurred at the close of his 

murder trial, this is the only connection between the two cases. Otherwise, 

the facts of each case are independent. New facts regarding his murder 

conviction simply cannot be used as new facts regarding his plea to 

aggravated assault and disarming a law enforcement officer. 

Notably, Garcia does not argue his innocence for the relevant 

convictions. See Appellant’s Brief, at 8. On the contrary, he admits that his 

“subsequent exoneration does not excuse” his conduct in the courtroom, but 

merely “sheds light on his intent to commit aggravated assault.” Appellant’s 
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Brief, at 14. While we recognize the unfortunate circumstances regarding 

Garcia’s murder conviction, those circumstances are not a legal justification 

for Garcia’s acts which support his aggravated assault and disarming a law 

enforcement officer convictions. And while the circumstances may help explain 

his behavior, they do not negate his admission that he acted willfully in 

assaulting and attempting to disarm the deputy sheriff. At that point in time, 

Garcia still had all appellate avenues available to him for fighting his murder 

conviction. Our laws simply do not allow an individual to punch an officer in 

open court and/or attempt to take that officer’s weapon. 

Further, Garcia’s substantive claim of trial counsel ineffectiveness 

cannot support an exception to the time-bar either. See Commonwealth v. 

Mitchell, 141 A.3d 1277, 1284-85 (Pa. 2016). Garcia attempts to couch the 

same claim in terms of ineffective assistance of plea counsel for failure to 

advocate for him during the plea hearing, based on his new knowledge that 

his murder conviction was later overturned. However, attempts to utilize 

ineffective assistance of counsel claims as a means of escaping the 

jurisdictional time requirements for filing a PCRA petition have been regularly 

rejected by our courts. See Commonwealth v. Gamboa–Taylor, 753 A.2d 

780, 785 (Pa. 2000) (claim of ineffective assistance of counsel does not save 

an otherwise untimely petition for review on the merits); see also 

Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999). 
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As the PCRA court properly concluded Garcia’s PCRA petition was 

untimely and does not fall under an exception to the PCRA time bar, we affirm 

the PCRA court’s order dismissing the petition. 

Order affirmed. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/15/2023