J-A22043-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CANDELARIO SANCHEZ

Appellant No. 2028 MDA 2015

Appeal from the PCRA Order April 24, 2014

In the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-CR-0001621-2006

BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J. 

MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 06, 2016

Appellant, Candelario Sanchez, appeals from the order entered in the 

York County Court of Common Pleas, which denied his serial petition filed 

under the Post Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A. §§ 9541-9546. 

We affirm. 

The relevant facts and procedural history of this appeal are as follows. 

On December 14, 2005, officers were conducting a 

controlled buy in which the target was Santos RamosRodriguez, [Appellant’s] co-defendant. When RamosRodriguez arrived at the buy location, Appellant was 

seated in the passenger seat of the vehicle. However, at 

this time officers did not even know the name of the 

individual sitting in the passenger seat. After the buy, 

both Ramos-Rodriguez and Appellant were arrested and 

searched. 

The search of the vehicle and Ramos-Rodriguez yielded the 

following: a black baggie; one baggie of cocaine; a black 

wallet; a Timex Expedition watch; black gloves; a cell 
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phone; and $477 in cash. Appellant was found with a 

black wallet, keys with a container containing two blue 

pills, two orange pills, and one white pill, and two sets of 

keys. Although Trooper Keppel initially testified that all of 

the key rings were in Appellant’s possession, he clarified 

that one set of keys was found on Appellant, and the other 

two sets were found in the vehicle. Nevertheless, he then 

testified that the keys were found next to Appellant in the 

vehicle. However, this is not consistent with the evidence 

log which says [the] keys and attached container came 

from Appellant, but does not indicate who had the other 

two sets of keys. Furthermore, when Corporal 

Fenstermacher was called by the defense to testify, he 

stated that only one set of keys was recovered from 

Appellant, and the other two sets were found in the 

vehicle. Corporal Fenstermacher opined that these sets of 

keys belonged to Ramos-Rodriguez since he owned the 

vehicle. 

Using all three keys, officers were able to open three 

residences: one at 32 North Queen Street, one [at] 314 

Reinecke Place, and one at 626 Chestnut Street. However, 

Corporal Fenstermacher could not recall which keys 

opened which apartments; all he could say was that a 

combination of the keys opened all three. 

Officers determined that Ramos-Rodriguez lived at 32 N. 

Queen Street based on prior surveillance and items found 

inside the apartment. After executing the search warrant, 

officers found the following items: one baggie of cocaine; 

mail [addressed] to Ramos-Rodriguez; a strainer with 

residue; a roll of tinfoil; two packets of rolling paper; one 

plastic baggie; two plastic bags of heroin; a marijuana 

cigarette; a driver’s license belonging to Ramos-Rodriguez; 

two cell phones; assorted mail; $1,250 in cash; a napkin 

with the address 802 Maryland Avenue written on it; a 

bank deposit slip; a check; a social security card with 

Ramos-Rodriguez’s name on it; $21,554 in cash in the 

bathroom closet; Viagra pills; and a brown paper bag. 

During their investigation, officers determined that the 

residence at 314 Reinecke Place was being rented out by 

Appellant. The following items were found: latex gloves; a 

box of face masks; a box of sandwich bags; a roll of duct 
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tape; a brown paper bag containing a baggie with a ripped 

corner; a pair of scissors; a newspaper with handwritten 

numbers; a Columbia Gas bill in the name of RamosRodriguez dated November 30, 2005; mail addressed to 

Appellant at 324 Harding Court; a bag of white powder; a 

Black & Decker coffee grinder; and assorted mail 

addressed to various individuals. Corporal Fenstermacher 

testified that, in his opinion, these items coupled with the 

drugs and money found at the other two locations was 

indicative of a large scale drug operation. 

The white powder that was found at 314 Reinecke Place 

was not a controlled substance; although, Corporal 

Fenstermacher speculated that the powder could have 

been used to dilute cocaine for packaging purposes. 

However, there was no testimony as to what the white 

powder actually was. 

Finally, the following items were found at 626 Chestnut 

Street: a cell phone; four plastic bags containing heroin; 

three bricks of cocaine; another bag containing smaller 

bags of cocaine and heroin; a bag of packaging materials; 

sifters and spoons; a digital scale; sandwich bags; a coffee 

grinder; 150 orange pills; a box of ammunition; a delivery 

notice addressed to Ramos-Rodriguez; photographs; mail 

addressed to Appellant; paper towels; boxes of plastic 

bags; paperwork; another cell phone; a brown safe; two 

backpacks; and a firearm. Police found medical paperwork 

for Appellant in a dresser drawer, and also a bunch of 

pictures of Appellant and Ramos-Rodriguez. 

Corporal Fenstermacher testified that in total 3,686 grams 

of cocaine [were] found, which equates to about 

$368,000.00. A total of 1,583 grams of heroin [were] 

found, which equates to just a little over $1,000,000.00. 

Finally, the pills that were found were tested and 

determined to be morphine. 

Milgras Guilb, office manager of Quality Management 

Incorporated, testified that Ramos-Rodriguez rented two 

properties from her—314 Reinecke Place and 626 Chestnut 

Street. After Ramos-Rodriguez’s lease was up, Appellant 

began renting the apartment at 314 Reinecke Place on 

September 1, 2005. 
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Appellant was arrested on December 14, 2005, and 

charged with two counts of possession with intent to 

deliver; two counts of criminal conspiracy; one count of 

persons not to possess firearms; and one count of 

receiving stolen property. Following his arrest, a 

preliminary hearing was held on March 1, 2006, and he 

was arraigned on April 7, 2006. One count of criminal 

conspiracy was withdrawn along with the charge of 

receiving stolen property. 

On May 8, 2006, Appellant, through counsel, filed an 

omnibus pretrial motion seeking severance of Appellant’s 

case from Ramos-Rodriguez’s case. A hearing was held on 

May 30, 2006, and the severance was denied. ... 

Testimony was heard on July 3 [and] July 5-6, and the 

jury returned a guilty verdict on July 7, 2006. 

On August 21, 2006, Appellant was sentenced to 25 years 

to 50 years’ imprisonment in a state correctional 

institution. On September 20, 2006, Appellant [timely 

filed a] notice of appeal to the Superior Court. [The trial 

court] directed him to file his [Pa.R.A.P.] 1925(b) 

statement, which he did on October 31, 2006. Appellate 

counsel failed to file a brief with the Superior Court, and 

the appeal was dismissed on May 17, 2007. 

Appellant filed his first pro se PCRA petition on July 9, 

2007. Lori A. Yost, Esquire was appointed to represent 

Appellant. On October 30, 2007, Appellant’s appeal rights 

were reinstated. On November 8, 2007, Appellant, 

through counsel, filed a motion to modify sentence. That 

motion was denied on December 3, 2007. 

On December 27, 2007, Attorney Yost filed a notice of 

appeal to the Superior Court on Appellant’s behalf. The 

Superior Court affirmed Appellant’s judgment of [sentence] 

in a non-precedential opinion filed on March 24, 2009, and 

docketed to 2194 MDA 2007. The issues raised on direct 

appeal were: 1) the denial of the motion to sever the 

trials; 2) a comment made by the district attorney about 

Appellant not testifying; 3) sufficiency of the evidence; 4) 

jury instructions; and 5) sentencing. The Pennsylvania 

Supreme Court denied Appellant’s petition for allowance of 
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appeal on October 28, 2009. The U.S. Supreme Court also 

denied a writ of certiorari [on March 22, 2010]. 

Appellant timely filed his second[1]PCRA petition on March 

18, 2011, and [the PCRA court] reappointed Attorney Yost 

to represent him on this petition. [The court] scheduled a 

hearing for July 26, 2011. On June 9, 2011, Appellant, 

through counsel, filed an amended PCRA petition. 

The amended PCRA petition raised the following issues: 1) 

Was trial counsel ineffective for failing to employ an expert 

in drug packaging and processing and/or ineffective in his 

cross-examination of the Commonwealth’s expert? 2) Was 

trial counsel ineffective for failing to file a pretrial motion 

seeking suppression of the evidence found at 314 Reinecke 

Place? 3) Was trial counsel ineffective in his cross 

examination of [Appellant’s] co-defendant Santos RamosRodriguez? 4) Was trial counsel ineffective for failing to 

object to the testimony of the Pennsylvania State Police 

Crime Lab Supervisor where the analyses in this case were 

completed by another lab technician who did not testify?

At the July 26th hearing [the PCRA court] reserved 

decision, but ultimately denied Appellant’s petition by 

order and opinion filed on January 17, 2012. Based on 

what was presented at the hearing, [the PCRA court] could 

not find that trial counsel was ineffective. More 

specifically, [the PCRA court] found that trial counsel’s 

actions were reasonably based on the evidence that the 

Commonwealth had presented implicating Appellant. 

Unfortunately, the jury believed the Commonwealth 

presented evidence which proved each element of the 

offenses beyond a reasonable doubt. The Superior Court 

reviewed the record, and affirmed the [order denying PCRA 

____________________________________________

1

The court refers to the March 18, 2011 petition as Appellant’s “second” 

petition, although it is considered his first petition for purposes of the 

statutory timeliness requirements. See Commonwealth v. Turner, 73 

A.3d 1283, 1286 (Pa.Super. 2013), appeal denied, 625 Pa. 649, 91 A.3d 162 

(2014) (reiterating: “When a PCRA petitioner’s direct appeal rights are 

reinstated nunc pro tunc in his first PCRA petition, a subsequent PCRA 

petition will be considered a first PCRA petition for timeliness purposes”). 
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relief]. Reviewing the record as [the PCRA court has] 

done, several years past the time of the trial, [the PCRA 

court sees] several problems with the sufficiency of the 

evidence in this case; however, the jury as the trier of fact

had the opportunity to view the evidence and listen to the 

testimony of witnesses to make determinations of 

credibility. 

On February 10, 2012, Appellant [timely filed a] notice of 

appeal to the Superior Court. On March 14, 2013, the 

Superior Court affirmed [the] denial of Appellant’s petition. 

However, before the Superior Court had ruled, Appellant 

filed a pro se PCRA petition on February 1, 2013. In this 

petition, Appellant alleged that his appellate counsel, 

Attorney Yost, was ineffective. Due to the fact that [the 

PCRA court] had appointed Attorney Yost, who had 

represented Appellant on appeal, to represent him on his 

PCRA, [the court] did not deny Appellant’s petition. 

Instead, on March 26, 2013, the court appointed Seamus 

D. Dubbs, Esquire, to represent Appellant on his [February 

1, 2013] petition.

[The PCRA court] scheduled a hearing on the matter for 

May 29, 2013. However, before a hearing could be held, 

Attorney Yost filed a petition for allowance of appeal to the 

Pennsylvania Supreme Court. Once the Supreme Court 

denied Appellant’s request to review the case, [the PCRA 

court] reappointed Attorney Dubbs, and scheduled a 

hearing for February 27, 2014. 

[The only issue raised at the February 27th hearing] was 

whether Attorney Yost was ineffective for failing to ask the 

Superior Court for reconsideration following its affirmance 

of Appellant’s judgment of sentence. On April 24, [2014], 

the PCRA court issued an order and opinion denying 

Appellant’s PCRA petition. 

On May 30, 2014, Appellant filed a pro se notice of appeal 

to the Superior Court. On June 2, 2014, Attorney Dubbs 

filed a notice of appeal to the Superior Court. The same 

day, [the PCRA court] directed Appellant to file his [Rule] 

1925(b) statement. ... On [June] 15, 2014, Appellant filed 

his [Rule] 1925(b) statement. 
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On July 18, 2014, the Superior Court directed Appellant to 

show cause as to why his appeal should not be dismissed 

because the PCRA court did not grant Appellant leave to 

appeal nunc pro tunc. Having received no response from 

Appellant, the Superior Court quashed the appeal on 

August 11, 2014.

On July 13, 2015, Appellant filed another pro se PCRA 

petition. ... On October 29, 2015, [at a PCRA hearing, the 

court] reinstated Appellant’s appeal rights with respect to 

the April 24, 2014, denial of his PCRA petition. ... 

Appellant timely filed a notice of appeal...on November 20, 

2015. [The PCRA court] directed him to file [a Rule] 

1925(b) statement, which he did on December 14, 2015. 

(PCRA Court Opinion, filed December 30, 2015, at 2-8). 

Appellant raises the following issue for our review:

WHETHER SUFFICIENT EVIDENCE WAS PRESENTED TO 

SUSTAIN A VERDICT OF GUILTY[?]

(Appellant’s Brief at 7). 

Our standard of review of the denial of a PCRA petition is limited to 

examining whether the evidence of record supports the court’s 

determination and whether its decision is free of legal error. 

Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied, 

612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the 

findings of the PCRA court if the record contains any support for those 

findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal 

denied, 593 Pa. 754, 932 A.2d 74 (2007). The PCRA court findings will not 

be disturbed unless the certified record provides no support for the findings. 

Commonwealth v. Taylor, 933 A.2d 1035, 1040 (Pa.Super. 2007), appeal 
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denied, 597 Pa. 715, 951 A.2d 1163 (2008). 

Appellant argues the Superior Court misstated key facts on direct 

appeal. Appellant contends police did not find any drugs at Appellant’s 

residence, 314 Reinecke Place, as stated in this Court’s March 24, 2009, 

disposition. Appellant asserts the police searching Appellant’s residence 

found only ordinary household items: a box of latex gloves, a box of face 

masks, a box of sandwich bags, a roll of duct tape, a plastic bag with a 

ripped corner, a pair of scissors, a newspaper with numbers written on it, 

mail, a bag of unknown white powder, a coffee grinder, and a small plastic 

baggie with the number “8” written on it. Appellant maintains the 

prosecution was unable to prove he had control over the apartment at 626 

Chestnut Street, where drugs were found, or to demonstrate Appellant’s 

awareness of any drug activity occurring there. Appellant insists his 

presence in his co-defendant’s car on the date of his arrest was just because 

he needed a ride to another location. Appellant indicates his co-defendant’s 

testimony established Appellant was not involved in drug production or 

sales. Appellant concludes the evidence presented was insufficient to 

sustain his convictions. We cannot agree. 

The timeliness of a PCRA petition is a jurisdictional requisite. 

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

not examine the merits of a petition for post-conviction relief that is 

untimely. Commonwealth v. Abu-Jamal, 574 Pa. 724, 735, 833 A.2d 
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719, 726 (2003), cert. denied, 541 U.S. 1048, 124 S.Ct. 2173, 158 L.Ed.2d 

742 (2004). To be eligible for relief under the PCRA, a petitioner must plead 

and prove, inter alia, his allegations of error were not previously litigated or 

waived. 42 Pa.C.S.A. § 9543(a)(3). A PCRA petition must be filed within 

one year of the date the underlying judgment becomes final. 42 Pa.C.S.A. § 

9545(b)(1). A judgment is deemed 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 expiration of time for seeking 

review.” 42 Pa.C.S.A. § 9545(b)(3). 

The three statutory exceptions to the timeliness provisions in the PCRA 

allow for very limited circumstances under which the late filing of a petition 

will be excused. To invoke an exception, a petition must allege and the 

petitioner must prove: 

(i) the failure to raise a 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). A petitioner asserting a timeliness 
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exception must file a petition within sixty days of the date the claim could 

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

Instantly, Appellant’s judgment of sentence became final on March 22, 

2010, when the United States Supreme Court denied his petition for writ of 

certiorari. See U.S.Sup.Ct.R. 13. Appellant filed his most recent PCRA 

petition (3rd) on July 13, 2015. Appellant’s third petition made no attempt to 

plead and prove any exception to the PCRA’s time restrictions, pursuant to 

Section 9545(b)(1). Instead, Appellant alleged that, on May 8, 2015, he 

discovered this Court had quashed his appeal from the denial of his second 

PCRA petition on August 11, 2014. Appellant filed his third PCRA petition 66 

days later. Thus, Appellant’s third petition was patently untimely. See 42 

Pa.C.S.A. § 9545(b)(1). Appellant’s third petition sought to reinstate his 

appeal rights from the order denying his second PCRA petition that he filed 

on February 1, 2013, while the appeal from his first PCRA petition was still 

pending. The PCRA court should have dismissed Appellant’s February 1, 

2013 PCRA petition, for lack of jurisdiction. See Commonwealth v. Lark, 

560 Pa. 487, 746 A.2d 585 (2000) (holding court has no jurisdiction to 

review subsequent PCRA petition that is filed while appeal from previous 

PCRA petition is still pending). See also Commonwealth v. Davis, 816 

A.2d 1129, 1134 (Pa.Super. 2003), appeal denied, 576 Pa. 710, 839 A.2d 

351 (2003) (stating appellant is precluded from filing additional PCRA 

petition while prior PCRA petition is pending on appeal; if untimely, 
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subsequent petition must plead and prove exception to one-year 

jurisdictional time bar). Likewise, Appellant’s February 1, 2013 petition 

(second) was facially untimely, as it was filed almost three years after his 

judgment of sentence became final. Yet, the court allowed this second PCRA 

petition to linger until after the pending appeal concerning the denial of 

Appellant’s previous petition was resolved; then the court granted a hearing 

on the second petition. Ultimately, the court properly dismissed the second 

petition in its April 24, 2014 order. Although the PCRA court offered a 

different rationale for its denial of relief, this Court may affirm on any basis. 

See Commonwealth v. Reese, 31 A.3d 708, 727 (Pa.Super. 2011) (en 

banc) (stating appellate court may affirm order of trial court on any basis if 

ultimate decision is correct). Thus, we affirm the April 24, 2014 order 

presently before us, which denied Appellant’s February 1, 2013 petition 

(second), because the court had no jurisdiction to address it on the merits.2 

Order affirmed. 

____________________________________________

2 Moreover, to the extent Appellant’s February 1, 2013 petition was based on 

PCRA counsel’s ineffectiveness, Appellant abandoned that claim in this 

appeal. Instead, Appellant’s brief addressed only the sufficiency of the 

evidence to support his conviction. We observe that Appellant’s sufficiency 

challenge was previously litigated on direct appeal. See Commonwealth v. 

Sanchez, 972 A.2d 561 (Pa.Super. 2009), appeal denied, 603 Pa. 685, 982 

A.2d 1228 (2009) (affirming Appellant’s conviction based on Appellant’s 

access to large drug stash housed at 626 Chestnut Street). The appellate 

decision made clear this Court did not rely on the errant fact contained in its 

summary of facts. Put simply, the PCRA court erred when it addressed the 

actual merits of Appellant’s sufficiency issue. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/6/2016