J-S23045-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

PEDRO LUIS GAVILAN-CRUZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 388 MDA 2022

Appeal from the PCRA Order Entered January 27, 2022

In the Court of Common Pleas of Lancaster County 

Criminal Division at No(s): CP-36-CR-0001911-2014

BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.

MEMORANDUM BY COLINS, J.: FILED: NOVEMBER 15, 2022

Pedro Luis Gavilan-Cruz, pro se, appeals from the order dismissing as 

untimely his serial petition filed pursuant to the Post Conviction Relief Act 

(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

As background, Gavilan-Cruz was found guilty by a jury of rape and 

eight related charges stemming from a 2014 incident wherein he held his exgirlfriend hostage under the threat of death, sexually abusing her in the 

process. Ultimately, Gavilan-Cruz received an aggregate sentence of sixteen

to thirty-two years of incarceration, reflective, too, of the fact that he used a 

deadly weapon during the commission of those crimes. In addition, GavilanCruz was required to pay restitution, costs, and fees and thereafter had 

lifetime registration obligations as a sexual offender.

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 Retired Senior Judge assigned to the Superior Court.
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After sentencing, although Gavilan-Cruz filed no post-sentence motions, 

he did file a timely notice of appeal to this Court. However, eventually, we 

dismissed this appeal due to counsel’s failure to file a brief on Gavilan-Cruz’s 

behalf. 

On July 14, 2016, Gavilan-Cruz filed his first PCRA petition, asserting 

that because no brief was filed in his direct appeal, he received ineffective 

assistance of counsel. The lower court granted relief, allowing Gavilan-Cruz to 

file an appeal with this Court nunc pro tunc challenging his judgment of 

sentence. In the corresponding unpublished memorandum, we did not find 

any validity to the additional ineffective assistance claims raised in his appeal 

and affirmed. See Commonwealth v. Gavilan-Cruz, 2016 WL 7048829 (Pa. 

Super., filed December 5, 2016) (unpublished memorandum) (concluding that 

Gavilan-Cruz’s ineffective assistance assertions were not ripe for direct review, 

but were potentially appropriate for collateral review).

On December 13, 2016, Gavilan-Cruz filed his second PCRA petition, 

which again averred that Gavilan-Cruz had received ineffective assistance of 

counsel throughout various phases of his pre-trial and trial continuum. The 

lower court held an evidentiary hearing on these allegations, but denied him 

relief and dismissed his petition. Subsequently, Gavilan-Cruz filed a notice of 

appeal with this Court. Via unpublished memorandum, we affirmed the lower 

court’s decision. See Commonwealth v. Gavilan-Cruz, 2018 WL 1887121 

(Pa. Super., filed April 20, 2018) (unpublished memorandum). After that, our 

Supreme Court, on October 11, 2018, denied Gavilan-Cruz’s petition for 
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allowance of appeal from our determination. Following our Supreme Court’s 

denial, Gavilan-Cruz filed a federal habeas petition, pro se, pursuant to 28

U.S.C. § 2254, but that petition, too, was eventually dismissed on August 19, 

2021. 

The present PCRA petition, his third, features a date of August 30, 2021.

In that document, Gavilan-Cruz’s makes a wide variety of claims, ranging from 

allegations of ineffective assistance of counsel to having been affected by 

judicial and prosecutorial misconduct. After the lower court reviewed his 

submission, it found the petition to be untimely and without exception,

resulting in its dismissal. Gavilan-Cruz has appealed from this determination.

Preliminarily, we note that Gavilan-Cruz’s brief is woefully deficient in 

many respects. Inter alia, his brief does not contain “separately and distinctly 

entitled” sections, in violation of Pa.R.A.P. 2111(a). Specifically, Gavilan-Cruz 

has omitted a statement of jurisdiction, statement of questions involved, 

statement of the case, summary of argument, or argument section. See 

Pa.R.A.P. 2111(a). Instead, the brief contains a one-sentence introduction, 

twenty-one numbered paragraphs, and a conclusion seeking relief. See 

Appellant’s Brief.

We recognize that Gavilan-Cruz has elected to proceed pro se in this 

matter. Despite this fact, we emphasize that his status as a pro se litigant 

does not confer any sort of special benefits on him. See Commonwealth v. 

Adams, 882 A.2d 496, 498 (Pa. Super. 2005). More particularly, “[a]lthough

the courts may liberally construe materials filed by a pro se litigant ... a court 
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cannot be expected to become a litigant’s counsel or find more in a written 

pro se submission than is fairly conveyed in the pleading.” Commonwealth 

v. Blakeney, 108 A.3d 739, 766 (Pa. 2014). Given the infirmities of GavilanCruz’s brief, we could very well find waiver; however, because resolution of 

this appeal is clear, we choose not to dismiss on that basis. 

Despite there being no attempt to identify, with any particularity, the 

question or questions Gavilan-Cruz desires to present to this Court, we glean 

from his brief that he contends his trial, direct appellate, and post-conviction 

counsel were all ineffective.1

When reviewing the denial of a PCRA petition, we dually consider

whether the lower court's determination is supported by the record and free 

of legal error. See Commonwealth v. Ford, 947 A.2d 1251, 1252 (Pa. 

Super. 2008). Only in cases where is no support in the certified record will we 

entertain disturbing the lower court’s findings. See Commonwealth v. Carr, 

768 A.2d 1164, 1166 (Pa. Super. 2001).

Any PCRA petition, “including a second or subsequent petition[ must] be 

filed within one year of the date [a] judgment [of sentence] becomes final[.]” 

42 Pa.C.S.A. § 9545(b)(1). “[A] judgment becomes final at the conclusion of 

direct review, including discretionary review in the Supreme Court of the 

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1 To the extent that his PCRA petition contains assertions of prosecutorial and 

judicial misconduct, there is no reference to either in his brief. As such, we 

consider those issues waived. See Commonwealth v. Woodard, 129 A.3d 

480, 509 (Pa. 2015) (stating that “where an appellate brief fails to ... develop 

an issue in any ... meaningful fashion capable of review, that claim is 

waived[]”) (citation omitted).
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United States and the Supreme Court of Pennsylvania, or at the expiration of 

time for seeking the review.” Id., at § 9545(b)(3). The PCRA’s timeliness 

requirements are jurisdictional, and as such, courts cannot address the merits 

of an untimely petition. See Commonwealth v. Moore, 247 A.3d 990, 998 

(Pa. 2021). 

With our Supreme Court denying his petition for allowance of appeal, 

which sought review of his judgment of sentence, in October 2018, GavilanCruz filed his current PCRA petition in 2021, well over one year after his 

judgment of sentence became final. See U.S. Sup.Ct. Rule 13(1) (allowing for 

the filing of a writ of certiorari with the United States Supreme Court within 

ninety days after entry of an order denying discretionary review from the state 

court of last resort; here, Gavilan-Cruz would have had until January 2019 to 

submit this filing). As his petition is therefore untimely, to overcome the 

PCRA’s one-year jurisdictional time-bar, Gavilan-Cruz must plead and prove 

one of its three 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.
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42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). In addition, to invoke one of these 

exceptions, the petition must be filed “within one year of the date the claim 

could have been presented.” Id., at § 9545(b)(2).

Gavilan-Cruz’s brief provides no basis to conclude that he has met any 

of the PCRA exceptions.2In fact, even through the most generous reading 

possible, Gavilan-Cruz provides no reference to the three exceptions, and 

despite it being his burden to demonstrate, the brief fails to show that he has 

pleaded and proved even one of them. While Gavilan-Cruz makes several 

averments that point to discrete examples of his trial, appellate, and postconviction counsel providing him with ineffective assistance, he in no way has 

tethered those allegations to anything that could arguably serve as a basis to 

overcome the PCRA’s time-bar. 

As Gavilan-Cruz’s petition is untimely and, too, because he has failed to 

establish an exception to the PCRA’s time-bar, we are without jurisdiction to 

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2 The record reflects that Gavilan-Cruz filed, still pro se, an amended PCRA 

petition dated October 27, 2021. In that petition, Gavilan-Cruz implicitly 

attempts to circumvent the PCRA’s time-bar, contending that he became

aware of “[a]fter-[d]iscover[ed] evidence [that] would show that the 

[p]etitioner is not guilty of said charges.” Amended PCRA Petition, dated 

10/27/21, ¶ 10. In particular, Gavilan-Cruz cursorily contends that “records 

and telephone calls” demonstrate that the charges against him “were brought 

[forth] out of ill-feelings from his child’s mother.” Id., at ¶ 11. However, 

Gavilan-Cruz has written nothing about this supposition in his brief before this 

Court. Moreover, the relevant portions of this amended PCRA petition are 

replete with bald assertions that in no way “prove” that he has met an 

exception to the time-bar. For example, there is no reference to any date in 

which he became aware of the so-called records or telephone calls. Also, 

Gavilan-Cruz does not discuss how those facts underpin the issues he is now 

bringing forth on appeal, i.e., ineffective assistance of various counsel. 
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consider the merits of his claims. Accordingly, we affirm the lower court’s 

order dismissing his PCRA petition. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/15/2022