J-S22016-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ANDREW GONZALEZ

Appellant No. 28 MDA 2017

Appeal from the PCRA Order December 14, 2016

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0005540-2005

BEFORE: SHOGAN, J., MOULTON, J., and PLATT, J.*

MEMORANDUM BY MOULTON, J.: FILED AUGUST 16, 2017

Andrew Gonzalez appeals, pro se, from the December 14, 2016 order 

entered in the Berks County Court of Common Pleas dismissing as untimely 

his fourth petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 

42 Pa.C.S. §§ 9541-9546. We affirm.

The PCRA court thoroughly summarized the factual and procedural 

history of this matter in its November 16, 2016 order and notice of intent to 

dismiss Gonzalez’s petition, which we adopt and incorporate herein. Order 

and Notice of Intent to Dismiss, 11/16/16, at 1-4 (“PCRA Ct. Order”). On 

August 16, 2016, Gonzalez filed his fourth PCRA petition, pro se. On 

November 16, 2016, the PCRA court issued a notice of intent to dismiss 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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Gonzalez’s petition under Pennsylvania Rule of Criminal Procedure 907. On 

December 2 and 5, 2016, Gonzalez filed two identical responses to the PCRA 

court’s notice. On December 14, 2016, the PCRA court dismissed Gonzalez’s 

petition. Gonzalez timely filed a notice of appeal.

Gonzalez raises the following issues on appeal:

1. Did the trial court err when it unreasonably applied the 

correct legal rule to the particular facts in determining the 

timeliness of the PCRA petition[?]

2. Did the act of silence on the part of the trial court judge 

and/or prosecutor create a false impression that it was 

permissible to select and impanel two jurors with 

preconceived opinions to decide the evidence at 

[Gonzalez]’s trial in violation of the Sixth and Fourteenth 

Amendments to the Constitution of the United States[?]

3. Did the act of silence on the part of the trial court judge 

and/or prosecutor create a false impression of a material 

fact, that [Gonzalez] was tried and convicted before a fair 

and impartial jury, known to them not to be true, result in 

[Gonzalez]’s failure to raise previously the juror bias claim 

at trial, direct appeal, and in his first PCRA petition where 

he was without the benefit of the trial court record[?]

4. Did the Sixth and Fourteenth Amendments to the 

Constitution of the United States mandate the trial court 

judge and/or prosecutor to reveal two of the jurors 

selected and impaneled on the jury at [Gonzalez]’s trial 

[were] in fact bias [sic][?]

5. Whether [Gonzalez] was deprived of a fair and 

impartial jury when the trial court, prosecutor and defense 

counsel allowed two jurors that were incapable or unwilling 

to decide his case solely on the evidence at trial denied 

[him of] his Sixth and Fourteenth Amendment rights to the 

Constitution of the United States.

Gonzalez’s Br. at 4 (some alterations in original).
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Our standard of review from the denial of PCRA relief “is limited to 

examining whether the PCRA court’s determination is supported by the 

evidence of record and whether it is free of legal error.” Commonwealth v. 

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011). 

Before we reach the merits of Gonzalez’s appeal, we must determine 

whether his PCRA petition was timely filed.

It is well settled that “the timeliness of a PCRA petition is a 

jurisdictional requisite.” Commonwealth v. Brown, 111 A.3d 171, 175 

(Pa.Super.), app. denied, 125 A.3d 1197 (Pa. 2015). A PCRA petition 

“including a second or subsequent petition, shall be filed within one year of 

the date the judgment becomes final.” 42 Pa.C.S. § 9545(b)(1). A 

judgment is 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. § 9545(b)(3).

Gonzalez’s judgment of sentence became final on March 29, 2010,1

when the time to seek review in the Supreme Court of the United States 

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1 We note that the trial court erroneously calculated the date that 

Gonzalez’s judgment of sentence became final as March 28, 2010. See 

PCRA Ct. Op. at 5. 
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expired.2 He had one year from that date, that is, until March 29, 2011, to 

file a timely PCRA petition. Therefore, his current petition, filed on August 

16, 2016 is facially untimely.

Gonzalez’s petition remains untimely unless it alleges and proves a 

PCRA time-bar exception. 

Courts may consider a PCRA petition filed more than one year after a 

judgment of sentence became final only if the petitioner alleges and proves 

one of the following three statutory exceptions:

(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 Brown, 111 A.3d at 175-76. In 

addition, when invoking an exception to the PCRA time bar, the petition 

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2 Gonzalez had 90 days from the date the Supreme Court of 

Pennsylvania denied his petition for allowance of appeal to file a petition for 

a writ of certiorari with the Supreme Court of the United States. See U.S. S. 

Ct. R. 13. 
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must “be filed within 60 days of the date the claim could have been 

presented.” 42 Pa.C.S. § 9545(b)(2). 

Based on our review of the certified record, the parties’ briefs, and the 

relevant law, we conclude that the trial court appropriately dismissed 

Gonzalez’s PCRA petition as untimely, because he failed to establish any of 

the PCRA time-bar exceptions. We reach these conclusions for the reasons 

stated in the Honorable Mary Ann Ullman’s well-reasoned opinion, which we 

adopt and incorporate herein. See PCRA Ct. Op. at 4-7.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/16/2017
Circulated 07/28/2017 10:23 AM