J-S74032-16

*

Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

MANUEL FIGUEROA

Appellant No. 2978 EDA 2015

Appeal from the Judgment of Sentence April 22, 2013

In the Court of Common Pleas of Lehigh County

Criminal Division at No(s): CP-39-CR-0005628-2011

BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.: FILED NOVEMBER 17, 2016

Appellant, Manuel Figueroa, appeals nunc pro tunc from the judgment 

of sentence of twenty and one-half to forty-two years’ incarceration for 

Murder of the Third Degree and Recklessly Endangering Another Person 

(REAP).1 As Appellant’s petition for relief, filed pursuant to the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, was untimely and 

the PCRA court did not have jurisdiction to reinstate Appellant’s direct appeal 

rights nunc pro tunc, we are constrained to quash the instant appeal.

The facts elicited at trial showed that, on September 18, 2011, 

Appellant shot Daniel Velez in the head, killing him. See Notes of Testimony 

(N. T.), 1/22/13, at 64, 112, 141-44, 243; N. T., 1/23/13, at 26, 34. 

____________________________________________

1 18 Pa.C.S. § 2502(c) and 18 Pa.C.S. § 2705, respectively.
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A jury trial commenced January 22, 2013, and concluded January 25, 

2013; the jury convicted Appellant of the above-enumerated offenses. On 

April 22, 2013, the court sentenced Appellant to twenty to forty years’ 

incarceration for third degree murder, and six months to twenty-four 

months’ incarceration for REAP, to run consecutively.

The procedural history that follows is somewhat complicated. On May 

2, 2013, Appellant pro se filed a motion for reconsideration of sentence, 

which the trial court denied May 3, 2013, on the grounds that Appellant was 

still represented by trial counsel.2 See Pa.R.Crim.P. 576. Trial counsel, 

however, did not file post-sentence motions or a direct appeal, nor did he 

withdraw his appearance.

On May 22, 2013, Appellant pro se filed, in the trial court, a letter 

expressing a desire to preserve his appellate rights and requesting the 

withdrawal of trial counsel so that Appellant could pursue his appeal.

On June 4, 2013, the trial court entered an order noting that the time 

for Appellant’s appeal had expired and appointing the Lehigh County Office 

____________________________________________

2 We would first note that the denial of Appellant’s pro se motion did not 

comport with Pa.R.Crim.P. 576(a)(4) (“Where a defendant submits for filing 

a written motion that has not been signed by the defendant's attorney, the 

clerk of courts shall accept it for filing, time stamp it with the date of receipt 

and make a docket entry reflecting the date of receipt, and place the 

document in the criminal case file. A copy of the time stamped document 

shall be forwarded to the defendant's attorney and the attorney for the 

Commonwealth within 10 days of receipt.”) However, as the trial court did, 

in fact, deny the motion, Appellant’s time to appeal ran June 2, 2013. 

However, as the date fell on a Sunday, his time to appeal was June 3, 2013. 
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of the Public Defender to represent Appellant during PCRA proceedings. See

Trial Court Opinion, 11/30/15, at 2. At that time, trial counsel still had not 

withdrawn his appearance.

On June 12, 2013, and June 24, 2013, Appellant untimely filed pro se

notices of appeal docketed at 1781 EDA 2013 and 1850 EDA 2013, 

respectively. Ultimately the appeal docketed at 1781 EDA 2013 was 

discontinued by order of this Court filed March 17, 2014. The appeal 

docketed at 1850 EDA 2013 proceeded.

On July 23, 2013, trial counsel filed in this Court a motion to withdraw 

as counsel, averring that, pursuant to his written retainer agreement, he had 

agreed to represent Appellant up and through the time of trial and/or guilty 

plea. The retainer did not extend to post-sentence motions, appeals, or 

collateral proceedings. This Court granted trial counsel’s motion and 

permitted him to withdraw his appearance. Subsequently, the Lehigh 

County Public Defender’s Office entered its appearance on Appellant’s behalf.

On December 2, 2013, appellate counsel filed an application for 

remand, averring that he had spoken with Appellant and that, against 

counsel’s advice, Appellant wished to represent himself. This Court 

remanded the matter to the trial court for a Grazier3 hearing and ordered 

the trial court to notify this Court of its determination within sixty days. On 

____________________________________________

3 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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February 7, 2014, the trial court notified this Court of the results of the 

Grazier hearing, namely, that Appellant had requested the continued 

representation of the Office of the Public Defender. TCO at 2.

On June 4, 2014, Appellant’s time to file a PCRA petition expired. See 

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (noting that 

any PCRA petition, including a second and subsequent petition, must be filed 

within one year of the date the judgment of sentence becomes final); see 

also 42 Pa.C.S. § 9545(b)(1).

On August 19, 2014, a panel of this Court quashed Appellant’s direct 

appeal as untimely; however, it noted in a footnote the quashal was without 

prejudice for Appellant to seek reinstatement of his appellate rights through 

PCRA review. See Commonwealth v. Figueroa, 106 A.3d 164 (Pa. Super. 

2014) (unpublished memorandum), appeal denied, 105 A.3d 735 (Pa. 

2014).

On February 20, 2015, Appellant filed a counseled petition seeking 

PCRA relief.

4

 Appellant then filed an amended petition. On July 31, 2015, 

the parties stipulated that Appellant’s rights should be reinstated, and the 

PCRA court granted the petition. On August 7, 2015, counsel filed postsentence motions, which the court denied September 22, 2015. 

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4 After counsel had filed a PCRA petition, Appellant pro se filed a PCRA 

petition, which the trial court dismissed on February 27, 2015.
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Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) 

statement. The trial court issued a responsive opinion on November 30, 

2015.

Herein, Appellant presents two issues for our review:

A. Whether the evidence was sufficient to sustain the 

defendant’s convictions for murder in the third degree and 

recklessly endangering another person.

B. Was the verdict against the weight of all the evidence in 

regards to the proof of whether or not the defendant was 

properly convicted of murder in the third degree and recklessly 

endangering another person?

Appellant’s Brief at 8.

However, we begin by addressing the timeliness of Appellant’s 

petition, as the PCRA time limitations implicate our jurisdiction and may not 

be altered or disregarded in order to address the merits of his claims. See 

Bennett, 930 A.2d at 1267. Under the PCRA, any petition for relief, 

including second and subsequent petitions, must be filed within one year of 

the date on which the judgment of sentence becomes final. Id. Where an 

untimely direct appeal is filed, the time for filing a PCRA petition commences 

upon expiration of the time period allowed for seeking direct review, not 

from when the date the untimely appeal is quashed. Commonwealth v. 

Brown, 943 A.2d 265, 268 (Pa. 2008). Where a PCRA petition is untimely 

filed, a PCRA court does not have jurisdiction to restore a petitioner’s 

appellate rights nunc pro tunc. See Commonwealth v. Valentine, 928 

A.2d 346, 349 (Pa. Super. 2007).
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There are three exceptions to this jurisdictional 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. § 9545(b)(1)(i)-(iii); see Bennett, 930 A.2d at 1267. Any 

petition attempting to invoke these exceptions “shall be filed within 60 days 

of the date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2); 

see Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000). 

In the instant case, Appellant’s sentence became final at the expiration 

of his time for direct review, which was June 3, 2013. Appellant thus had 

until June 3, 2014, to file a PCRA petition. Appellant did not file a petition 

until February 20, 2015, and that petition is patently untimely. Appellant 

acknowledged this but averred that the exception delineated by 42 Pa.C.S. § 

9545(b)(1)(ii) applied, as this Court’s decision to quash Appellant’s direct 

appeal, and the Supreme Court’s subsequent decision to deny his petition for 

allowance of appeal, were facts unknown to him. 

Appellant is incorrect. Judicial decisions are not newly-discovered 

facts within the exception to the time-bar applicable in proceedings under 
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the PCRA. See Commonwealth v. Watts, 611 Pa. 80, 23 A.3d 980, 986 

(2011) (“[S]ection 9545(b)(1)(ii) applies only if the petitioner has uncovered 

facts that could not have been ascertained through due diligence, and 

judicial determinations are not facts.”); Commonwealth v. Brandon, 51 

A.3d 231, 235 (Pa. Super. 2012) (same). 

Consequently, we are constrained to quash the instant appeal, as the 

PCRA court did not have jurisdiction to grant PCRA relief. Appellant filed his 

PCRA petition more than one year after his judgment of sentence became 

final and failed to plead or prove a statutory timeliness exception. See 42 

Pa.C.S. § 9545(b)(1); Bennett, supra.

Appeal quashed.

President Judge Emeritus Stevens joins the memorandum. 

Judge Ott files a concurring statement in which President Judge 

Emeritus Stevens joins.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/17/2016