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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 :
:
:
:
:
:
:
:
: 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

Jesu s Sierra appeals from the order, enter ed 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

_________________ __________ ______ ____ _______

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.J

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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, 200 0 , around 3:30 a.m., victim Charles Plunkett was driving a taxi with his fiancée, Vi r ginia 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, M r. 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 ha d 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 shat tered 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 ser ving his

sentence. He did not file a direct appeal

. 6 However, he f ile d 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 fi ling a direct appeal

. See Commonwealth v. Adams , 200 A.3d 944, 954 (Pa. 2019) (finding that a fugit ive 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) ; se e also Commonwealth v. Deemer , 705 A.2d 827, 829 (Pa. 1997) ( finding that a “fugitive who returns to court sh ould 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” ).J

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petition in 2005, which was ultimately unsuccessful. He filed his second PCRA

pe tit ion on June 8, 2016. On February 1, 2018, t he 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 adeq uately pleaded the newly[

- ]discovered [facts] exception to the time bar and issue s 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 a ddressing 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 implicate s 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 byJ

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operation of one of the statuto rily 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 th e 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 ascertai ned 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 h eld 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 sentence d on March 27, 2002. He did not file a direct
appeal, thus his judgment of sentence became final on April 2 7, 2002. Sierra

filed this petition on June 8, 2016, well ou tside the required one

- year time

limit. Nevertheless, Sierra argues his petition was t imely 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

_________________ __________ ______ ____ _______

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.J

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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[

- ] d iscovered 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 claim s a previously unavailable witness is now willing to testify to

the night’s eve nts. In an a ffidavit 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 Aff idavit, (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 self

incrimination.

While i t 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 d emonstrate that he meets the newly

- discovered fact exception toJ

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the PCRA. See id. T he 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 time liness requirements o r meet
one of its exceptions

. Id. Based on the reasoning above, t he PCRA court did

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

Having dispos ed of the arguments offered by Sierra , we conclude that

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

no jurisdiction to review the m erits of Sierra’s petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/30/19