J-S44020-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOSHUA RIOS,

Appellant No. 1732 EDA 2015

Appeal from the PCRA Order May 14, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at Nos: MC-51-CR-0021510-2011, MC-51-CR-0032469-

2011, and MC-51-CR-0032470-2011

BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MUSMANNO, JJ.

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

Joshua Rios, Appellant, appeals from the May 14, 2015 order entered 

in the Court of Common Pleas of Philadelphia County (“PCRA court”), 

denying as untimely his petition for collateral relief pursuant to the Post 

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we 

affirm.

The PCRA court summarized the history of the case as follows:

On March 4, 2010, [Appellant] pleaded guilty before 

the PCRA court to terroristic threats (CP-51-CR-0014319-

2009), and simple assault and recklessly endangering 

another person (REAP) (CP-51-CR-0014318-2009). He 

was given probation sentences. Within this probation 

period, on May 17, 2011, [Appellant] broke into several 

vehicles with his co-conspirator, stole various items from 

within the vehicles, and also caused damage to the victims’ 

vehicles; [Appellant] was arrested the next day with his 

cohort and some of the stolen items were found in 

[Appellant’s] truck. On August 31, 2011, [Appellant] 

pleaded guilty to the theft and criminal conspiracy cases 

and was again given probation sentences—these are the 
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cases at issue in this PCRA appeal (MC-51-CR-0021510-

2011, MC-51-CR-0032469-2011, MC-51-CR-0032470-

2011).

[Appellant] was brought before th[e PCRA] court on two 

prior occasions for violations of probation. For his first 

violation, he was given probation sentences on August 31, 

2011, for his terroristic threats, simple assault and REAP 

convictions. For his second violation on February 17, 

2012, probation was imposed on four out of five of his 

prior cases, and on one theft/conspiracy case, MC-51-CR00215210-2011, he was given a 4 to 12 month prison 

sentence followed by house arrest and 60 months 

reporting probation.

On December 15, 2012, [Appellant] brutally 

assaulted an eighteen (18) year-old male, causing 

bleeding and severe swelling to the eyes, jaw[,] and 

forehead. Specifically, while the victim was at [a] party 

talking to a girl, [Appellant] asked the victim, “Do you 

want to get fucked up white boy?” When the victim 

turned, he was struck in the face with a vodka bottle, and 

then struck by [Appellant] in the face around four times 

while [Appellant] was wearing brass knuckles. The victim 

fell to the ground and was repeatedly stomped and kicked 

in the head, face and body by [Appellant] and a group of 

over thirty people. The victim ran through an alley to get 

away and, as he reached the end of the alley, he was 

again struck in the face with a bottle and again kicked and 

stomped. The victim’s friend put him over his shoulder, 

ran two blocks away and called police. The victim was 

taken to Hahnemann Hospital where he stayed overnight 

for his injuries.

On January 17, 2013, and April 5, 2013, a VOP 

hearing pursuant to Commonwealth v. Kates 305 A.2d 

701 (Pa. 1973), “Daisy Kates” hearing, was held before 

th[e PCRA] court. The above facts of [Appellant’s] direct 

violation of probation were testified to at the VOP hearing. 

After the hearing, [Appellant’s] probation was revoked. On 

May 31, 2013, he was sentenced to an aggregate term of 

41⁄2 to 9 years incarceration, followed by five years 

probation. On June 12, 2013, [Appellant’s] [m]otion to 

[r]educe sentence and/or [c]orrect [s]entence was filed by 

attorney Joshua M. Briskin; on June 13, 2013, the 

[m]otion was denied. According to [Appellant], in the 

direct violation case, “the Commonwealth nolle prossed all 

charges against [Appellant] except simple assault and 

recklessly endangering another person[,]” he “entered a 

plea of nolo contendre to [those] charges and received no 

further penalty.” 

On September 11, 2014, [Appellant], represented by 

Kenneth L. Mirsky, Esquire, filed an untimely [p]etition 
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pursuant to the [Post Conviction Relief Act, 42 Pa.C.S. § 

9541 et seq. (PCRA), claiming that his “sentences were not 

consistent with the gravity of his violation, the need for 

public protection, or his needs for rehabilitation, he was 

“denied effective assistance of counsel,” and he was 

“denied his right to appeal.” 

On February 18, 2015, PCRA counsel filed an 

“Amended Petition for Post-Conviction Collateral Relief.”

The Commonwealth filed a [m]otion [t]o [d]ismiss 

the [p]etition. 

On March 20, 2015, PCRA counsel filed “Petitioner’s 

Answer to Commonwealth’s Motion To Dismiss.”

On March 26, 2015, th[e PCRA] court sent 

[Appellant] a [n]otice [t]o [d]ismiss pursuant to 

Pa.R.Crim.P. 907, that his PCRA [p]etition would be 

dismissed without further proceedings on April 28, 2015, 

because his [p]etition was untimely filed and his issues are 

without merit. On May 14, 2015, by [o]rder, th[e PCRA] 

court dismissed [Appellant’s] PCRA [p]etition.

On June 11, 2015, [Appellant] filed a [n]otice of 

[a]ppeal to this ruling. On June 15, 2015, th[e PCRA] 

court ordered [Appellant] to file a [s]tatement [o]f [e]rrors 

[c]omplained [o]f [o]n [a]ppeal within 21 days of the date 

of the [o]rder. [Appellant] filed his [s]tatement on July 1, 

2015. 

Trial Court Opinion, 7/15/15, at 1-4 (citation omitted) (footnote omitted).

Appellant raises a sole issue on appeal.

Whether [Appellant’s] PCRA [p]etition should not have 

been dismissed as untimely since [Appellant] plead and 

can prove that his claim comes with[in] one of the 

exceptions to the one-year time requirement: that the 

facts upon which this claim is predicated were unknown to 

the defendant and could not have been ascertained by the 

exercise of due diligence. [Appellant’s] new case, which 

was the basis for the [PCRA] court finding him in violation 

of probation, was not resolved until shortly after the one 

year expired from his sentencing on the violation of 

probation and the [Appellant] could not have known prior 

to that time that the District Attorney would not proceed 

on the felony charges against him.

Appellant’s Brief at 4. 
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The timeliness of a PCRA petition is jurisdictional. See 

Commonwealth v. Robinson, 12 A.3d 477, 479 (Pa. Super. 2011) 

(citations omitted). Any PCRA petition must be filed within one year of the 

date judgment becomes final, unless the petition alleges and proves one of 

three timeliness exceptions. 42 Pa.C.S.A. § 9545(b)(1). “[J]udgment 

becomes final at the conclusion of direct review, including discretionary 

review in the Supreme Court of the United States and the Supreme Court of 

Pennsylvania, or at the time for seeking the review.” 42 Pa.C.S.A. § 

9545(b)(3). The three exceptions to the one year requirement requires a 

petitioner alleges and proves that

(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)(i-iii). If one of the exceptions is invoked, the 

petition shall be filed within 60 days of the date it could have been 

presented. 42 Pa.C.S.A. § 9545(b)(2). 

In the matter sub judice Appellant asserts the Commonwealth’s nolle 

pros of several charges (upon which his probation was revoked), more than 

a year after his VOP hearing, was a fact which could not have been 
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ascertained by the exercise of due diligence, and therefore his PCRA petition 

was timely filed. Appellant maintains that the trial court, relying upon 

Commonwealth v. Watts, 23 A.3d 980, 986-87 (Pa. 2011) (an in-court 

ruling or published judicial opinion is law),1erred when it viewed his plea as 

the “fact” unknown to the Appellant. Appellant is mistaken. While Appellant 

may have negotiated a plea with the Commonwealth, it was the court order 

accepting that plea and imposing sentence that affected the disposition of 

the charges against him. Since that order does not qualify as a new fact and 

Appellant’s PCRA petition was filed more than one year after his sentence 

became final, his petition was untimely. See 42 Pa.C.S.A. § 9545(b); 

Watts, 23 A.3d at 986-87. The PCRA court correctly determined that it 

____________________________________________

1

In Watts, the Supreme Court explained the distinction between law and 

fact as follows:

Black’s Law Dictionary explains the distinction thusly: ‘Law 

is a principle; fact is an event. Law is conceived; fact is 

actual. Law is a rule of duty; fact is that which has been 

according to or in contravention of the rule.’ Put another 

way ‘A ‘fact,’ as distinguished from the ‘law,’ . . . [is that 

which] is to be presumed or proved to be or not to be for 

the purpose of applying or refusing to apply a rule of law.’ 

Consistent with these definitions, an in-court ruling or 

published judicial opinion is law, for it is simply the 

embodiment of abstract principles applied to actual events. 

The events that prompted the analysis, which must be 

established by presumption or evidence, are regarded as 

fact.

Id. at 986-87.
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lacked jurisdiction to grant relief as the petition was untimely and failed to 

satisfy any timeliness exceptions to the PCRA. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/17/2016