J-S24012-19

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JESUS SIERRA 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 399 EDA 2018

Appeal from the PCRA Order February 1, 2018

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

No(s): CP-51-CR-0501601-2001

BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY LAZARUS, J.: FILED MAY 30, 2019

Jesus Sierra appeals from the order, entered in the Court of Common 

Pleas of Philadelphia County, dismissing his second petition for relief filed 

under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We

affirm.

Following a road rage incident, Sierra was tried in absentia for attempted 

murder,1 aggravated assault,2 criminal conspiracy,3 carrying a firearm without 

a license,4 and possessing an instrument of crime.5 On March 27, 2002, the 

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1 18 Pa.C.S.A. §§ 901, 2502.

2 18 Pa.C.S.A. § 2702.

3 18 Pa.C.S.A. § 903.

4 18 Pa.C.S.A. § 6106.

5 18 Pa.C.S.A. § 903.
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court imposed an aggregate sentence of thirty to sixty years’ incarceration. 

The PCRA court summarized the relevant facts as follows:

On August 12, 2000, around 3:30 a.m., victim Charles Plunkett 

was driving a taxi with his fiancée, Virginia Zayas, next to him in 

the car. He was waiting at the intersection of Front and Cambria 

Streets in Philadelphia behind a white van that was stopped at the 

traffic light. The van, driven by [Sierra,] did not move when the 

light turned green. [Sierra] was seated in the driver seat, Paul 

Forsyth was in the front passenger’s seat, Felix Gonzalez was 

seated directly behind the driver’s seat, and an unidentified third 

passenger was also in the van.

After the light turned green a second or third time, and the van 

still failed to move, Mr. Plunkett sounded his taxi’s car horn. The 

van then turned right onto Front Street. Mr. Plunkett followed and 

drove up alongside the van. He rolled down his window and asked 

[Sierra] if he was okay. [Sierra] responded by asking Mr. Plunkett 

“if he had a fucking problem.” [Sierra] then told a passenger in 

his car to hand him “the gun.” Upon hearing this, Mr. Plunkett 

sped away and pushed Ms. Zayas to the car floor. [Sierra] 

followed in the van and fired five gunshots into the taxi. The 

bullets shattered the taxi’s back window, and at least one bullet 

lodged in the bulletproof divider separating the front and back 

seats. Mr. Plunkett radioed for help to his dispatcher and was 

immediately put in contact with police. [Sierra] drove away.

Trial Court Opinion, 6/25/18, at 1-2.

Sierra was apprehended on October 26, 2004, and began serving his 

sentence. He did not file a direct appeal.

6

 However, he filed his first PCRA 

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6 Sierra forfeited his right to a direct appeal because he was a fugitive until 

after the expiration of time for filing a direct appeal. See Commonwealth 

v. Adams, 200 A.3d 944, 954 (Pa. 2019) (finding that a fugitive forfeited his 

right to appeal when he was a fugitive until after the appeal period ended even 

though his attorney filed a notice of appeal); see also Commonwealth v. 

Deemer, 705 A.2d 827, 829 (Pa. 1997) (finding that a “fugitive who returns 

to court should be allowed to take the system of criminal justice as he finds it 

upon his return: if time for filing has elapsed, he may not file”).
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petition in 2005, which was ultimately unsuccessful. He filed his second PCRA 

petition on June 8, 2016. On February 1, 2018, the PCRA court dismissed the 

second petition as untimely and this appeal followed.

Sierra raises two issues for our review:

1. Did the PCRA Court err by dismissing [Sierra’s] petition without 

a hearing where he adequately pleaded the newly[-]discovered 

[facts] exception to the time bar and issues of material fact 

exist?

2. Did the PCRA Court err by dismissing [Sierra’s] petition as 

untimely where his sentence is twice the statutorily allowed 

maximum?

Appellant’s Brief, at 4.

Before addressing the merits of Sierra’s claims, we must examine 

whether we have jurisdiction to entertain the underlying PCRA petition. See

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999). “Our standard of 

review of a PCRA court’s dismissal of a PCRA petition is limited to examining 

whether the PCRA court’s determination is supported by the evidence of record 

and free of legal error.” Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa. 

Super. 2003) (citation omitted). A PCRA petition “must normally be filed 

within one year of the date the judgment becomes final.” Commonwealth 

v. Copenhefer, 941 A.2d 646, 648 (Pa. 2007) (internal citations and footnote 

omitted). This time limit is jurisdictional in nature and implicates the court’s 

power to adjudicate a controversy. Commonwealth v. Ali, 86 A.3d 173, 177 

(Pa. 2014). Thus, the time for filing a PCRA petition can only be extended by 
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operation of one of the statutorily enumerated exceptions. Commonwealth 

v. Smallwood, 155 A.3d 1054, 1059-60 (Pa. Super. 2017). 

The three statutory timeliness exceptions 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.A. § 9545(b)(1)(i)-(iii). Once the petitioner could have known an 

above exception applies, he has 60 days to file a petition. See 42 Pa.C.S.A.

§ 9545(b)(2) (amended 2018).7

Here, Sierra was sentenced on March 27, 2002. He did not file a direct

appeal, thus his judgment of sentence became final on April 27, 2002. Sierra 

filed this petition on June 8, 2016, well outside the required one-year time 

limit. Nevertheless, Sierra argues his petition was timely under 

newly-discovered facts exception. 

The timeliness exception set forth in [s]ection

9545(b)(1)(ii) requires a petitioner to demonstrate he did not 

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7

In 2018, the time period of 60 days was changed to 1 year in section 

9545(b)(ii). The new time period only applies to claims arising one year 

before the effective date of the amendment. 2018 Pa. Laws. 146. The 

amendment became effective on December 24, 2018. See id. This claim 

arose in 2002, thus, the previous time period of 60 days applies.
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know the facts upon which he based his petition and could not 

have learned those facts earlier by the exercise of due diligence. 

Due diligence demands that the petitioner take reasonable steps 

to protect his own interests. A petitioner must explain why he

could not have learned the new fact(s) earlier with the

exercise of due diligence. This rule is strictly enforced. 

Additionally, the focus of this exception is on the

newly[-]discovered facts, not on a newly[-]discovered or newly

willing source for previously known facts.

Commonwealth v. Fennell, 180 A.3d 778, 782 (Pa. Super. 2018) (en banc) 

(emphasis in original) (quoting Commonwealth v. Brown, 111 A.3d 171, 

176 (Pa. Super. 2015)).

Sierra claims a previously unavailable witness is now willing to testify to 

the night’s events. In an affidavit attached to Sierra’s amended PCRA petition, 

the witness, Felix Gonzalez, asserts that he was in the vehicle with Sierra the 

night of the incident. See Gonzalez Affidavit, (date unintelligible, exhibit B of 

amended PCRA petition, 10/9/16), at ¶ 2. He is now willing to testify that 

Sierra did not have a gun, and the victim was the one who fired the weapon. 

Id. at ¶ 5. Gonzalez did not testify at trial because of potential selfincrimination. 

While it may be true that Gonzalez’s willingness to testify is new, none 

of the facts offered by Gonzalez were unavailable to Sierra at the time of trial. 

The newly-available witness is merely a new source of that information; there 

is no newly-discovered fact. See Fennel, 180 A.3d at 782. Thus, Sierra has 

failed to demonstrate that he meets the newly-discovered fact exception to 
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the PCRA. See id. The PCRA court lacked jurisdiction to consider the merits 

of the petition and properly dismissed the petition.

Sierra’s second argument is a legality of sentencing claim. While a 

legality of sentencing claim cannot be waived, a court must still have 

jurisdiction to hear such a claim. Fahy, 737 A.2d at 223. An legality of 

sentencing claim must also satisfy the PCRA’s timeliness requirements or meet 

one of its exceptions. Id. Based on the reasoning above, the PCRA court did 

not have jurisdiction to entertain this claim and properly dismissed it. 

Having disposed of the arguments offered by Sierra, we conclude that 

the PCRA court properly dismissed Sierra’s petition as untimely and that it had

no jurisdiction to review the merits of Sierra’s petition. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/30/19