J-S26038-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RIGOBERTO HERNANDEZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3 MDA 2022

Appeal from the Order Entered November 24, 2021

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

No(s): CP-38-CR-0001002-2017

BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: AUGUST 29, 2022

Rigoberto Hernandez appeals pro se from the November 24, 2021 order 

dismissing his second petition1filed pursuant to the Post Conviction Relief Act 

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, as untimely. After careful review, we 

affirm. 

The relevant facts of this case were summarized by a prior panel of this 

Court as follows:

On April 6, 2017, at approximately 11:30 a.m., 

[Appellant] and his co-defendant, Orlando NunezFlores (Nunez-Flores), drove to the Fulton Bank 

located in Schaefferstown, Lebanon County. NunezFlores entered the bank and demanded money from 

the tellers at gunpoint, while [Appellant] waited in his 

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* Former Justice specially assigned to the Superior Court.

1 Appellant has styled his pro se petition as a petition for writ of habeas 

corpus.
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vehicle. After Nunez-Flores obtained $2,963.00 in 

cash, some of which was GPS-enabled for tracking, he 

ran out the front door and into [Appellant’s] vehicle.

Responding police officers pursued the GPS signal 

coming from [Appellant’s] sedan, which led to a highspeed chase ending with [Appellant’s] car crashing 

into a chain link fence. Police officers pulled 

[Appellant] out of the vehicle and took him into 

custody. Nunez-Flores fled the scene but after a foot 

chase was captured with cash obtained from the 

robbery.

Commonwealth v. Hernandez, 209 A.3d 1074 (Pa.Super. 2019) 

(unpublished memorandum at *1), appeal denied, 217 A.3d 214 (Pa. 2019).

The relevant procedural history of this case, as gleaned from the 

certified record, is as follows: On October 30, 2017, Appellant proceeded to 

a jury trial and was subsequently found guilty of two counts of robbery2 and 

related offenses.

3

 On December 20, 2017, Appellant was sentenced to an 

aggregate term of 16 to 49 years’ imprisonment in connection with this 

incident. On February 19, 2019, a panel of this Court affirmed Appellant’s 

judgment of sentence, and our Supreme Court denied his petition for 

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2 18 Pa.C.S.A. §§ 3701(a)(1)(ii) and (vi), respectively.

3 Appellant was also found guilty of two counts of criminal conspiracy to 

commit robbery, 18 Pa.C.S.A. § 903; and one count each of theft by unlawful 

taking, 18 Pa.C.S.A. § 3921(a); criminal conspiracy to commit theft by 

unlawful taking, 18 Pa.C.S.A. § 903; receiving stolen property, 18 Pa.C.S.A.

§ 3925(a); criminal conspiracy to receive stolen property, 18 Pa.C.S.A. § 903; 

fleeing or attempting to elude a police officer, 75 Pa.C.S.A. § 3733(a); 

recklessly endangering another person, 18 Pa.C.S.A. § 2705; and reckless

driving, 75 Pa.C.S.A. § 3736(a).
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allowance of appeal on August 27, 2019. See id. Appellant did not file a 

petition for writ of certiorari with the United States Supreme Court.

Appellant filed his first pro se PCRA petition on April 9, 2020, and 

counsel was appointed to represent him. Following an evidentiary hearing on 

August 14, 2020, the PCRA court dismissed Appellant’s petition on September 

17, 2020. Appellant did not file a notice of appeal from the PCRA court’s order. 

On November 9, 2021, Appellant filed the instant pro se PCRA petition,

his second, which was styled as a “Petition for Writ of Habeas Corpus.” 

Therein, Appellant baldly alleged in a four-page, typewritten template that the 

robbery statutes under which he was convicted were void. On November 24, 

2021, the PCRA court entered an order finding that Appellant’s petition 

“contains no legal basis for which his sentence should be overturned” and

dismissing it as untimely. See PCRA court order, 11/24/21 at 1. This timely 

appeal followed on December 23, 2021.

4, 5

Appellant raises the following issue for our review: 

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4 The record reflects that although Appellant’s notice of appeal was timestamped as filed on December 28, 2021, his appeal was timely because a 

post-marked envelope in the certified record reveals that it was deposited with 

prison authorities on December 23, 2021. See Commonwealth v. 

Chambers, 35 A.3d 34, 38 (Pa.Super. 2011) (holding, “a pro se prisoner’s 

document is deemed filed on the date he delivers it to prison authorities for 

mailing.”), appeal denied, 46 A.3d 715 (Pa. 2012); Commonwealth v. 

Jones, 700 A.2d 423, 426 (Pa. 1997) (stating, “any reasonably verifiable 

evidence of the date that the prisoner deposits” the document with prison 

authorities is acceptable to satisfy the prisoner mailbox rule).

5 The record reflects that Appellant timely complied with Pa.R.A.P. 1925(b).
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1. Whether the [PCRA] abused its discretion in 

dismissing Appellant’s Petition for Writ of

Habeas Corpus asserting that he is illegally 

confined on the basis of a criminal statute that 

is unconstitutional or void by the omission of a 

Saving Clause?

Appellant’s brief at 3 (extraneous capitalization omitted).

Preliminarily, we note that “the PCRA is intended to be the sole means 

of achieving post-conviction relief,” and that “the PCRA statute subsumes the 

writ of habeas corpus.” Commonwealth v. Taylor, 65 A.3d 462, 465 

(Pa.Super. 2013) (citations omitted); see also 42 Pa.C.S.A. § 9542 (stating, 

“[t]he action established in this subchapter shall be the sole means of 

obtaining collateral relief and encompasses all other common law and 

statutory remedies for the same purpose that exist when this subchapter takes 

effect, including habeas corpus and coram nobis.”).

Proper appellate review of a PCRA court’s dismissal of a PCRA petition 

is limited to the 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). “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. Patterson, 143 A.3d 394, 397 (Pa.Super. 2016) (citation 

omitted). In order to be eligible for PCRA relief, a defendant must plead and 

prove by a preponderance of the evidence that his conviction or sentence 

arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). 
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These issues must be neither previously litigated nor waived. 42 Pa.C.S.A. 

§ 9543(a)(3). 

We must consider the timeliness of Appellant’s PCRA petition because 

it implicates the jurisdiction of this court and the PCRA court. 

Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014) (citation 

omitted). All PCRA petitions, including second and subsequent petitions, must 

be filed within one year of when a defendant’s judgment of sentence becomes 

final. See 42 Pa.C.S.A. § 9545(b)(1). “[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).

Here, the record reveals that Appellant’s judgment of sentence became 

final on November 25, 2019, when the 90-day time period for filing a petition 

for writ of certiorari with the United States Supreme Court expired. See id.;

U.S.Sup.Ct.R. 13.1. Accordingly, Appellant had until November 25, 2020 to 

file a timely PCRA petition. Id. at § 9545(b)(1). Appellant’s instant PCRA 

petition was filed on November 9, 2021, nearly one-year past the deadline, 

and is patently untimely. Accordingly, Appellant was required to plead and 

prove that one of the three statutory exceptions enumerated in Section 

9545(b)(1) applies.

The three statutory exceptions to the PCRA time-bar are as follows:

(i) the failure to raise the claim previously was the 

result of interference by government officials 
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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 petition invoking any of these exceptions 

must “be filed within one year of the date the claim could have been 

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

Instantly, we find that Appellant has failed to plead, let alone prove, any 

of the statutory exceptions to the PCRA time-bar set forth in 

Section § 9545(b)(1). Rather, Appellant baldly contends that there is no 

statutory authorization for his confinement because the robbery statutes 

under which he was convicted are void under the Pennsylvania Constitution. 

See Appellant’s brief at 7-8. Our review reveals that Appellant fails to develop 

or provide support for these claims in either his pro se petition or brief. On 

the contrary, the caselaw cited by Appellant involved situations where charges 

were dismissed on account of amended statutes which no longer criminalized 

the conduct charged, which is clearly not the case here.
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Based on the foregoing, we discern no error on the part of the PCRA 

court in dismissing Appellant’s petition and affirm its November 24, 2021

order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 08/29/2022