J-S19007-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TITO REYES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1789 EDA 2019

Appeal from the PCRA Order Entered May 24, 2019

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

No(s): CP-51-CR-0204931-2005

BEFORE: BOWES, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.: FILED JULY 08, 2020

Tito Reyes appeals pro se from the order that dismissed as untimely his 

third petition filed pursuant to the Post Conviction Relief Act (“PCRA”). We 

affirm. 

This Court summarized the facts underlying Appellant’s conviction as 

follows:

On March 13, 1997, Gloria Ramos (“Gloria”) was outside on 

the porch of her mother’s home in Philadelphia. Her two brothers, 

Appellant and Luis Ramos (“Luis”), accompanied by their brotherin-law, “Shorty,” approached Gloria. The men asked if she would 

come with them to knock on the door of a house where Madelassi 

Nunez lived. Apparently, Ms. Nunez was having an affair with the 

boyfriend of Johanna, who was the sister of Appellant, Luis, and 

Gloria.1

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1 Ms. Nunez was not a stranger to Gloria. Prior to the events 

that are the subject of this criminal case, Gloria, Johanna, 

and their sister Mimi, accosted Ms. Nunez at the restaurant 

where Ms. Nunez worked.
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Appellant, Luis, Gloria, and Shorty drove to Ms. Nunez’[s] 

house, and Gloria knocked on the door. When Ms. Nunez 

answered the door, the three men, who were now wearing gloves 

and masks, forced their way past Ms. Nunez into the vestibule of 

the building. Ms. Nunez retreated into her apartment. The men 

knocked on Ms. Nunez’[s] apartment door, but she refused to 

open it. Undaunted, they broke the door down and entered 

forcibly. The intruders demanded drugs and money. A woman 

named Rosario Figueroa, who lived in the apartment with Ms. 

Nunez, was present during this home invasion. The men 

demanded that Ms. Figueroa empty her pockets, and they took 

$40.00 from her. Gloria told Ms. Nunez to give the men money 

and drugs, but Ms. Nunez told them that she had no money or 

drugs. Gloria then struck Ms. Nunez repeatedly in the head with 

a crowbar and knocked her to the floor. While Ms. Nunez was on 

the floor, Gloria told Appellant to shoot Ms. Nunez. Appellant 

proceeded to stand over Ms. Nunez, and he then fired a shot into 

her chest. Ms. Nunez died as a result of her injuries. 

Over seven years later, Appellant, who was a fugitive, was 

arrested in Camden, New Jersey. He was returned to Philadelphia 

and charged with multiple crimes in connection with the killing of 

Ms. Nunez, and both he and his brother Luis, were scheduled to 

be tried jointly. Additionally, prior to the trial, Gloria entered into 

a plea bargain with the Commonwealth and agreed to testify 

against Appellant and Luis.

Commonwealth v. Reyes, 938 A.2d 1119 (Pa.Super. 2007) (unpublished 

memorandum at 1-3).

The PCRA court offered the ensuing procedural history of the case:

On October 24, 2005, following a jury trial before this court, 

[Appellant] was convicted of murder of the first degree, two 

counts of robbery, burglary, criminal conspiracy, carrying a 

firearm without a license, and possessing instruments of crime 

(PIC). On December 9, 2005, [Appellant] was sentenced to the 

mandatory term of life imprisonment. On September 6, 2007, 

[the] Superior Court affirmed [Appellant’s] judgment of sentence 

and, on March 6, 2008, our Supreme Court denied [his] petition 

for allowance of appeal.
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On March 25, 2008, [Appellant] filed a PCRA petition pro se. 

Counsel was appointed and, on December 5, 2008, filed an 

amended petition. On March 31, 2009, the Commonwealth filed 

a motion to dismiss. After reviewing the pleadings, on May 5, 

2009, this court sent [Appellant] notice of its intent to deny and 

dismiss his petition without a hearing pursuant to Pa.R.Crim.P. 

907 (907 Notice). Consistent with its 907 Notice, on June 12, 

2009, this court denied and dismissed [Appellant’s] PCRA petition. 

On June 22, 2010, [the] Superior Court affirmed this court’s denial 

of [the] petition. Our Supreme Court denied allocatur on October 

19, 2010.

[Appellant’s] second PCRA petition was untimely, having 

been filed almost four years after [his] judgment of sentence 

became final. On August 15, 2014, this court sent [Appellant] a 

907 Notice. Having received no response from petitioner, this 

court dismissed [his] second PCRA petition as untimely on October 

31, 2015. [Appellant] did not appeal this dismissal.

[Appellant] filed his third PCRA petition, untimely, on 

October 30, 2018[, stating an after-discovered-evidence claim]. 

On March 1, 2019, the Commonwealth responded to [the] 

petition. On April 8, 2019, this court received from [Appellant] a 

motion to amend his PCRA petition, raising the additional issue of 

ineffective assistance of counsel for failure to communicate his 

plea agreement. Having reviewed the pleadings, this court has 

determined that [Appellant’s] claim fail[ed] to satisfy any of the 

exceptions to the timeliness requirements and, therefore, this 

court lack[ed] jurisdiction over [the] petition. 

Pa.R.Crim.P. 907 Notice, 4/23/19, at 1-3 (footnotes and unnecessary 

capitalization omitted). 

The PCRA court accordingly dismissed the petition without a hearing 

after issuing the appropriate notice of its intent to do so. Appellant timely 

filed a notice of appeal and complied with the PCRA court’s order to file a 

concise statement of errors complained of on appeal. Appellant presents the 

following question for this Court’s determination:
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[Whether the] PCRA court erred in dismissing [Appellant’s] third 

PCRA [petition] as untimely where Appellant submitted [it] within 

(1) one year from [the] day [the newly-]discovered fact was 

discovered by Appellant that Commonwealth witness Gloria 

Ramos was institutionalized in mental hospital prior to testifying 

and that Gloria Ramos was “coerced” into testifying by 

investigators against Appellant?

Appellant’s brief at 1 (unnecessary capitalization omitted). 

We begin with the applicable legal principles. “Our standard of review 

for issues arising from the denial of PCRA relief is well-settled. We must 

determine whether the PCRA court’s ruling is supported by the record and free 

of legal error.” Commonwealth v. Johnson, 179 A.3d 1153, 1156 

(Pa.Super. 2018) (internal quotation marks omitted). Further, “[i]t is an 

appellant’s burden to persuade us that the PCRA court erred and that relief is 

due.” Commonwealth v. Miner, 44 A.3d 684, 688 (Pa.Super. 2012). 

The first hurdle for a PCRA petitioner is establishing the timeliness of 

the petition. For a petition to be timely under the PCRA, it must be filed within 

one year of the date that the petitioner’s judgment of sentence became final. 

42 Pa.C.S. § 9545(b)(1). Appellant’s petition, filed a decade after his 

judgment of sentence became final, is patently untimely. Thus, unless 

Appellant pled and proved one of the three exceptions to the PCRA time-bar 

outlined in 42 Pa.C.S. § 9545(b)(1), we cannot address the claims he asserts 

therein. See Commonwealth v. Pew, 189 A.3d 486, 488 (Pa.Super. 2018) 

(“If the petition is untimely and the petitioner has not pled and proven an 

exception, the petition must be dismissed without a hearing because 
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Pennsylvania courts are without jurisdiction to consider the merits of the 

petition.”). 

Appellant acknowledged the untimeliness of his petition, but pled that it 

satisfied the newly-discovered facts exception codified at 42 Pa.C.S. 

§ 9545(b)(1)(ii). See PCRA Petition, 10/30/18, at 3. Specifically, Appellant 

alleged that until he finally obtained his trial transcripts in October 2018 after 

“many, many attempts” at obtaining them through the court and counsel, he 

did not know that Gloria Ramos, his sister, who testified for the 

Commonwealth and identified him at trial as one of the culprits, had previously 

been institutionalized for mental illness and claimed that she was coerced into 

assisting the prosecution.1 Id. He maintains that he does not understand 

English, and required the assistance of an interpreter in learning the content 

of the transcripts. Id. 

A petitioner relying upon the newly-discovered-fact exception must 

establish that: “(1) the facts upon which the claim was predicated were 

unknown and (2) they could not have been ascertained by the exercise of due 

diligence.” Commonwealth v. Cox, 146 A.3d 221, 227 (Pa. 2016) (citation 

omitted). While “[d]ue diligence requires neither perfect vigilance nor 

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1

In a supplement to his PCRA petition, Appellant also claimed that he learned 

for the first time through the same transcript that the Commonwealth had 

offered a plea agreement of an open guilty plea to third-degree murder. See 

Supplemental PCRA Petition, 4/4/19, at 7. Since Appellant does not pursue 

that claim on appeal, we do not consider it. 
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punctilious care,” it does require “reasonable efforts by a petitioner, based on 

the particular circumstances, to uncover facts that may support a claim for 

collateral relief.” Commonwealth v. Smith, 194 A.3d 126, 134 (Pa.Super. 

2018) (internal quotation marks omitted). To succeed in invoking this 

exception, the petitioner must “plead and prove that the information on which 

his claims are based could not have been obtained earlier despite the exercise 

of due diligence.” Commonwealth v. Edmiston, 65 A.3d 339, 346 (Pa. 

2013). 

The PCRA court determined that Appellant’s claim that he did not 

previously know the facts upon which he relies is belied by the record. In so 

holding, the PCRA court focused upon the fact that the notes of testimony 

from October 24, 2005 show that an interpreter was present when Appellant’s 

mother and sister offered their post-trial testimony about Gloria. See

Pa.R.Crim.P. 907 Notice, 4/23/19, at 5. 

Our review of the record confirms that Appellant’s counsel requested an 

interpreter, and that she was present when Appellant’s mother and sister

shared information about Gloria’s mental health issues and about how she was 

supposedly threated with removal of her daughter if she did not cooperate 

with the authorities. See N.T. Trial, 10/24/05, at 4, 35-36, 43. However, 

Appellant alleged that he was removed from the courtroom and placed in a 

holding cell before his mother and sister testified. See Response to 907 

Notice, 5/9/19, at 3. Nothing in the transcript contradicts Appellant’s 
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representation. As such, we cannot agree that there is no issue of fact 

concerning whether Appellant was present and had the assistance of an 

interpreter when the facts at issue were divulged on October 24, 2005.

Nonetheless, it is clear from the record that Appellant failed to plead 

facts that, if proven at a hearing, would show that he exercised due diligence 

in discovering the information recorded in the October 24, 2005 transcript. In 

his PCRA petition, Appellant stated that he had made diligent efforts to obtain 

copies of his trial transcripts from the court and his prior counsel, but did not 

obtain them until October 13, 2018. In support of this contention, Appellant 

attached letters that he sent to his trial and prior PCRA counsel in 2018 

requesting the trial transcripts. See PCRA Petition, 10/30/18, at Exhibit A. 

Appellant also referenced evidence that in 2013, 2015, and 2018, he filed 

requests with the court for the trial transcripts.

Hence, Appellant has offered an explanation why he did not know that 

his mother and sister offered testimony on the record about Gloria’s mental 

health commitments and the circumstances leading to her cooperation with 

the prosecution. However, we need not decide whether his sporadic efforts 

over the years to obtain the transcripts rise to the level of due diligence,

because it is not the fact that his family came forward with this information 

on the record in 2005 upon which Appellant relies as his newly-discovered 

fact. Rather, it is the content of their testimony—Gloria’s mental health 

history and the pressure allegedly placed upon her to cooperate—that 
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Appellant cites in invoking the timeliness exception. Appellant has offered 

no reason why he could not have earlier discovered these facts about his own 

sister, be it from her directly, through their shared mother and sister, or from 

some other source. 

Accordingly, Appellant failed to overcome the PCRA’s time bar by 

establishing that the facts upon which his claim is based could not have been 

ascertained earlier by the exercise of due diligence. See Cox, supra at 227. 

Therefore, the PCRA court properly dismissed his petition as untimely filed.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/8/2020