J-S26029-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BIVIANO PEREZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 342 MDA 2024

Appeal from the PCRA Order Entered February 5, 2024

In the Court of Common Pleas of York County Criminal Division at No(s): 

CP-67-CR-0003177-2017

BEFORE: PANELLA, P.J.E., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 12, 2024

Appellant, Biviano Perez, appeals pro se from the February 5, 2024 

order entered in the Court of Common Pleas of York County that denied his 

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. 

§§ 9542-9546. We affirm.

The record reveals that, on September 4, 2018, Appellant pleaded guilty 

to one count of manufacture, delivery, or possession with the intent to 

manufacture or deliver a controlled substance (heroin), 35 P.S. 

§ 780-113(a)(3). The trial court, upon accepting Appellant’s guilty plea, 

deferred sentencing pending Appellant’s successful completion of a 

heroin/opioid wellness court program. N.T., 9/4/18, at 4. On October 30, 

2018, the trial court ordered that Appellant be removed from the wellness 

program, after ascertaining that Appellant no longer wished to participate in 

the program. That same day, the trial court ordered a pre-sentence 
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investigation (“PSI”) report and scheduled Appellant’s sentencing hearing for 

January 2019.

On January 8, 2019, the trial court sentenced Appellant to 7 to 14 years’ 

incarceration, with 128 days credit for time served. Appellant was ordered to 

pay the costs of prosecution, as well as a $5,000.00 fine, and the trial court 

found that Appellant was not eligible for the recidivism risk reduction inventive 

program. Appellant filed a timely post-sentence motion that the trial court 

denied on February 4, 2019.1

On January 21, 2020, this Court affirmed Appellant’s judgment of 

sentence, and Appellant did not seek discretionary review with our Supreme 

Court. Commonwealth v. Perez, 246 MDA 2019, 2020 WL 359725, at *1 

(Pa. Super. filed Jan. 21, 2020) (unpublished memorandum). As such, 

Appellant’s judgment of sentence became final on February 20, 2020, upon 

expiration of time in which to file a petition for allowance of appeal with our 

Supreme Court.2 42 Pa.C.S.A. § 9545(b)(3) (stating, “a judgment becomes 

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1 While Appellant’s post-sentence motion was pending, Appellant filed pro se

a PCRA petition on January 23, 2019. On February 5, 2019, the PCRA court 

denied Appellant’s petition without prejudice to file the same once his 

judgment of sentence became final.

2 The certified record reveals that, on February 23, 2023, our Supreme Court,

in a dispositional letter directed to the Court of Common Pleas of York County,

stated that Appellant’s petition for allowance of appeal filed on February 21, 

2023, had been administratively closed on February 23, 2023. The untimely 

petition requested discretionary review of this Court’s February 21, 2020 order

(docketed at 246 MDA 2019), which affirmed Appellant’s judgment of 

sentence. See Pa.R.A.P. 1113(a).
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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 the review”); see also Pa.R.A.P. 

1113(a) (stating, “a petition for allowance of appeal shall be filed with the 

Prothonotary of the Supreme Court within 30 days after the entry of the order 

of [this Court] sought to be reviewed”).

On September 1, 2020, Appellant filed pro se a PCRA petition. Counsel 

was appointed to represent Appellant. On January 8, 2021, PCRA counsel filed 

a Turner/Finley3 no-merit letter and a petition to withdraw as counsel. On 

March 23, 2021, the PCRA court granted counsel’s request to withdraw and 

provided Appellant with notice of its intent to dismiss his petition pursuant to 

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The certified record further reveals that on May 25, 2023, our Supreme Court 

denied Appellant’s petition for leave to file a petition for allowance of appeal 

nunc pro tunc.

Neither Appellant’s filing of an untimely petition for allowance of appeal nor a 

petition for leave to file a petition for allowance of appeal nunc pro tunc alters 

the date on which his judgment of sentence became final. See 

Commonwealth v. Hutchins, 760 A.2d 50, 54 (Pa. Super. 2000) (stating, 

the untimely filing of a petition for allowance of appeal with our Supreme Court 

“does not operate to circumvent the clear and unambiguous language 

contained in Section 9545(b)(3) by altering the date on which [a petitioner’s]

conviction became final”); see also Commonwealth v. Scott, 249 A.3d 

1160, 2021 WL 630987, at *5 n.14 (Pa. Super. filed Feb. 18, 2021) 

(unpublished memorandum), appeal denied, 264 A.3d 332 (Pa. 2021).

3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); see also 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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Pennsylvania Rule of Criminal Procedure 907. On April 27, 2021, the PCRA 

court dismissed Appellant’s petition. Appellant did not seek an appeal.

On September 28, 2023, Appellant filed pro se a subsequent PCRA 

petition. PCRA counsel was appointed to represent Appellant. On November 

12, 2023, PCRA counsel filed a Turner/Finley no-merit letter and a petition 

to withdraw as counsel. On November 14, 2023, the PCRA court filed a Rule 

907 notice of its intent to dismiss Appellant’s petition. On January 4, 2024, 

Appellant filed pro se an amended PCRA petition. On January 8, 2024, the 

PCRA court granted PCRA counsel’s petition to withdraw. On February 5, 

2024, the PCRA court dismissed Appellant’s petition. This appeal followed.4

Appellant raises the following issues for our review:

[1]. Was [Appellant’s PCRA petition] timely due to ineffective 

counsel failing to inform him of the original [direct] appeal 

being denied [in] 2023?

[2.] Was prior counsel[] ineffective for failing to preserve a 

sentencing issue?

[3.] Is [Appellant’s] sentence illegal under 18 Pa.C.S.A. 

§ 7508(a)(7)(i) due to the weight [of the controlled 

substance (heroin)] being under [one gram]?

[4.] Did the trial court [err in failing] to file a statement 

[explaining its] upward departure from the Sentencing 

Guidelines under 42 Pa.C.S.[A.] § 9721(b)?

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4 Both Appellant and the PCRA court complied with Pennsylvania Rule of 

Appellate Procedure 1925. Appellant filed pro se his Rule 1925(b) statement,

along with his notice of appeal, on March 4, 2024. In its Rule 1925(a) opinion, 

the PCRA court adopted the rationale set forth in the November 2023 

Turner/Finley no-merit letter to support its order dismissing Appellant’s 

petition.
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Appellant’s Brief at 7.5

Appellant’s first issue challenges the PCRA court’s dismissal of his 

September 28, 2023 petition, asserting that the PCRA court erroneously 

determined that his petition was untimely and that he failed to plead and prove 

one of the timeliness exceptions enumerated in Section 9545(b)(1). Id. at 

10.

Our scope and standard of review of an order denying a PCRA petition 

is well-settled. Proper appellate review of a PCRA court’s dismissal of a 

petition is limited to an examination of “whether the PCRA court’s 

determination is supported by the record and free of legal error.” 

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation 

omitted). “The PCRA court’s findings will not be disturbed unless there is no 

support for the findings in the certified record.” Commonwealth v. Lawson, 

90 A.3d 1, 4 (Pa. Super. 2014) (citations omitted). “This Court grants great 

deference to the findings of the PCRA court, and we will not disturb those 

findings merely because the record could support a contrary holding.” 

Commonwealth v. Hickman, 799 A.2d 136, 140 (Pa. Super. 2002) (citation 

omitted). In contrast, we review the PCRA court’s legal conclusions de novo. 

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc), 

appeal denied, 101 A.3d 785 (Pa. 2014).

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5 For ease of reference, we assigned page numbers to Appellant’s unpaginated 

brief.
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If a PCRA petition is untimely, courts lack jurisdiction over the claims 

and cannot grant relief. Commonwealth v. Reid, 235 A.3d 1124, 1143 (Pa. 

2020) (stating, “[w]ithout jurisdiction, [courts] simply do not have legal 

authority to address the substantive claims” (citation and original quotation 

marks omitted)). As discussed supra, this Court affirmed Appellant’s 

judgment of sentence on January 21, 2020, and Appellant did not seek a 

discretionary review with our Supreme Court. As such, Appellant’s judgment 

of sentence became final on February 20, 2020, upon the expiration of time

for seeking discretionary review with our Supreme Court.

To be timely filed, a PCRA petition, including second and subsequent 

petitions, must be filed within one year of the date a petitioner’s judgment of 

sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). Therefore, Appellant had 

until February 20, 2021, to file a timely PCRA petition. Appellant filed the 

instant petition on September 28, 2023, more than two years after the 

deadline for filing a timely PCRA petition. Consequently, Appellant’s petition 

is patently untimely.6 Id.

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6 We note that the PCRA court erroneously adopted the portion of the 

Turner/Finley no-merit letter that stated the one-year time period in which 

to file a timely PCRA petition started to run on April 27, 2021, the date on 

which the PCRA court denied Appellant’s September 1, 2020 petition. PCRA 

Court Opinion, 3/5/24; see also Turner/Finley No-Merit Letter, 11/12/23, 

at § D. As discussed supra, “a judgment 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 expiration of 

time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). Therefore, 

Appellant’s judgment of sentence became final on February 20, 2020, upon 
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If a PCRA petition is untimely, the jurisdictional time-bar can only be 

overcome if the petitioner alleges and proves one of the three statutory 

exceptions, as set forth in 42 Pa.C.S.A. § 9545(b)(1). Commonwealth v. 

Spotz, 171 A.3d 675, 678 (Pa. 2017). The three narrow statutory exceptions 

to the one-year time-bar are as follows: “(1) interference by government 

officials in the presentation of the claim; (2) newly[-]discovered facts; and (3) 

an after-recognized constitutional right.” Commonwealth v. Brandon, 51 

A.3d 231, 233-234 (Pa. Super. 2012), citing 42 Pa.C.S.A. § 9545(b)(1)(i - iii). 

A petition invoking an exception to the jurisdictional time-bar must be filed 

within one year of the date that the claim could have been presented. 42 

Pa.C.S.A. § 9545(b)(2). If a petitioner fails to invoke a valid exception to the 

PCRA time-bar, courts are without jurisdiction to review the petition and 

provide relief. Spotz, 171 A.3d at 676.

Here, Appellant, without citation to a specific exception under Section 

9545(b)(1), asserts that his petition is timely because direct appeal counsel 

did not inform him that his judgment of sentence had been affirmed until 

January 2023. Appellant’s Brief at 10; see also PCRA Petition, 9/28/23, at 

§ 5. Appellant contends that direct appeal counsel did not communicate with 

him during the appellate process, and it was only after counsel communicated 

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expiration of the time for seeking discretionary review with our Supreme 

Court. The PCRA court’s order denying Appellant’s September 1, 2020 petition 

did not affect the date on which Appellant’s judgment of sentence became 

final.
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with him in January 2023, that he learned his judgment of sentence had been 

affirmed. Id.

Appellant appears to assert the newly-discovered fact exception to the 

jurisdictional time-bar – namely that he only learned in January 2023, that his 

judgment of sentence had been affirmed. In Commonwealth v. Small, 238 

A.3d 1267 (Pa. 2020), our Supreme Court reiterated that the 

newly-discovered fact exception “renders a petition timely when the petitioner 

establishes that [‘]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.[’]” Small, 238 A.3d at 1271, quoting 42 Pa.C.S.A. § 9545(b)(1)(ii).

Our Supreme Court explained that a PCRA court must first determine “whether 

the facts upon which the claim is predicated were unknown to the petitioner” 

based upon a circumstance-dependent analysis of the petitioner's knowledge.

Id. at 1282-1283 (original quotation marks omitted). If the PCRA court 

concludes that the facts were unknown, then the PCRA court must examine 

whether “the facts could have been ascertained by the exercise of due 

diligence, including an assessment of the petitioner's access to public records.” 

Id. (citation omitted). The Small Court defined “due diligence” as a “flexible 

concept that varies with the context of a given case[.]” Id. at 1284.

Here, the fact upon which Appellant’s claim is predicated is that 

Appellant was unaware until January 2023, that his judgment of sentence had 

been affirmed by this Court in January 2020. In his September 1, 2020 PCRA 

petition, however, Appellant, in listing the prior actions taken to secure relief, 
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listed the affirmation of his judgment of sentence on direct appeal. PCRA 

Petition, 9/1/20, at § 8. Specifically, Appellant stated that this Court “affirmed 

the [trial] court’s decision and sentence on January 21, 2020[.]” Id. 

Therefore, as of September 1, 2020, Appellant was aware that his judgment 

of sentence had been affirmed in January 2020, and he cannot now claim that 

this “fact” was only discovered in January 2023, for purpose of pleading and 

proving the newly-discovered fact exception to the jurisdictional time-bar.7 

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7 Couching his “fact” – knowledge of when his judgment of sentence was 

affirmed – in the context of an ineffective assistance of counsel claim does not 

establish the newly-discovered fact exception. Typically, allegations of 

ineffective assistance of counsel cannot be invoked as a newly-discovered fact 

pursuant to Section 9545(b)(1)(ii). See Commonwealth v. 

Gamboa-Taylor, 753 A.2d 780, 785 (Pa. 2000). In order to provide an 

exception to the jurisdictional time-bar, counsel’s alleged ineffectiveness must 

have completely deprived the defendant of direct review. See 

Commonwealth v. Bennett, 930 A.2d 1264, 1272-1274 (Pa. 2007); see 

also Commonwealth v. Peterson, 192 A.3d 1123, 1131 (Pa. 2018). Here, 

Appellant alleges that direct appeal counsel was ineffective in failing to 

communicate the resolution of his direct appeal to Appellant until January 

2023. Appellant’s Brief at 10. As discussed supra, Appellant was aware of 

that his judgment of sentence had been affirmed, as evidenced in his 

September 1, 2020 PCRA petition.

Moreover, Appellant’s claim that direct appeal counsel “abandoned” him 

during the direct appeal process does not successfully invoke the 

newly-discovered fact exception. Assuming arguendo that direct appeal 

counsel abandoned Appellant by not seeking discretionary review with our 

Supreme Court, Appellant was aware of this “fact” when he filed his 

September 1, 2020 PCRA petition. Assuming further for purpose of this 

discussion that Appellant learned this “fact” on September 1, 2020, then 

Appellant had until September 1, 2021 in which to file a petition invoking the 

newly-discovered fact exception. See 42 Pa.C.S.A. § 9545(b)(3) (stating, 

“[a]ny petition invoking an exception provided in [Section 9545(b)(1)] shall 

be filed within one year of the date the claim could have been presented”). 
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Therefore, we concur with the PCRA court, and the record supports, that 

Appellant’s September 28, 2023 petition is untimely and without exception. 

Consequently, the PCRA was without jurisdiction to address the underlying 

claims, and this Court is without jurisdiction to address Appellant’s claims on 

appeal.

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 09/12/2024

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Appellant’s September 28, 2023 PCRA petition, which cited this “fact” to 

establish the newly-discovered fact exception, was filed more than one year 

after the claim could have been presented. Therefore, Appellant would not 

have been entitled to relief.