J-S49040-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CARLOS ALCIDES A. SANCHEZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 726 EDA 2019

Appeal from the PCRA Order Entered February 19, 2019

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

No(s): CP-51-CR-0010979-2010

BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 23, 2019

Appellant, Carlos Sanchez, appeals from the order entered in the Court 

of Common Pleas of Philadelphia County dismissing as untimely his second 

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

§§ 9541-9546. We affirm.

The PCRA court aptly sets forth the relevant procedural history and 

underlying facts, as follows:

On April 24, 2012, petitioner Carlos Sanchez [hereinafter 

“Appellant”] entered a negotiated guilty plea on charges of thirddegree murder, two violations of the Uniform Firearms Act, and 

possession of an instrument of crime. Sanchez was sentenced to 

an aggregate imprisonment term of twenty (20) to forty (40) 

years. He did not file a post-sentence motion or a notice of appeal. 

Sanchez filed a pro se petition under the Post Conviction Relief Act 

(“PCRA”) on November 14, 2012. [The PCRA court] formally 

dismissed the petition on March 21, 2014. On March 23, 2015, 

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* Former Justice specially assigned to the Superior Court.
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the Superior Court affirmed the judgment of sentence. Our 

Supreme Court denied Appellant’s petition for allowance of appeal 

on August 31, 2015.

Appellant filed the instant PCRA petition[, his second,] on 

September 6, 2017. [The PCRA court] issued a notice of intent to 

dismiss the petition, pursuant to Pennsylvania Rule of Criminal 

Procedure 907, on January 17, 2019. The petition was formally 

dismissed as untimely on February 15, 2019. 

Appellant filed a notice of appeal on February 28, 2019. On March 

6, 2019, the PCRA court ordered him to file a statement of matters 

complained of on appeal. Appellant filed his statement on March 

18, 2019.

. . .

On September 21, 2009, at 7:48 p.m., Jose Rivera was shot in 

the area of 417 West Norris Street, which is in the intersection of 

Cadwallader and Norris Streets. Prior to this shooting, Appellant 

had been searching for Jose Rivera, the decedent, to collect a 

debt. During his search, Appellant observed Rivera in the area of 

Lawrence and Norris Streets. Appellant exited his Ford pickup 

truck and began to argue with Rivera about the debt. When Rivera 

said: “I don’t owe you any money,” Appellant pulled out a silver 

gun from his waistband and fired at least three gunshots at Rivera. 

Although Rivera turned and began to run away, Appellant 

continued firing his gun until Rivera fell to the ground. After the 

gunshots were fired, Appellant entered his pickup truck and a 

second male, Javier Zayas, entered the passenger side of the 

pickup truck. Appellant then drove away from the scene with 

Zayas. Zayas left Appellant after they were a few blocks away 

from the scene.

When police arrived, they transported Rivera to Temple Hospital, 

where he was pronounced dead at 8:25 p.m. Dr. Blanchard, from 

the Office of the Medical Examiner, conducted an autopsy of 

Rivera’s body. Rivera suffered one gunshot wound to the lower 

back, one gunshot wound to the groin, and one gunshot wound to 

the right thigh. Dr. Blanchard concluded to a reasonable degree 

of medical certainty that the cause of death was multiple gunshot 

wounds. Dr. Blanchard further concluded to a reasonable degree 

of medical certainty that the manner of death was homicide.
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When Officer Rahill responded to the crime scene, he recovered 

three .40 caliber fired cartridge casings. He later submitted these 

fired cartridge casings to the Firearms Identification Unit for 

examination. Officer Stott examined three .40 caliber fired 

cartridge casings from the crime scene. After [conducting his 

examination,] Officer Stott determined to a reasonable degree of 

scientific certainty that they were fired from the same firearm. He 

further concluded that it was probable that the fired cartridge 

casings were ejected from a semi-automatic handgun.

Two eyewitnesses, Mike Seloski and George Adorno, observed the 

argument and subsequent shooting while they were on a 

basketball court in the area of Lawrence and Norris Streets. They 

later provided written statements to police and identified 

petitioner as the shooter after viewing a photographic array. 

Seloski further informed police that Zayas did not have a weapon 

and did not fire any gunshots at the decedent. Zayas also 

provided a statement to police, and he later testified at a 

preliminary hearing about this shooting.

PCRA Court Opinion, 4/10/19, at 1-2.

Herein, Appellant raises twelve issues on appeal that coalesce to 

challenge the PCRA court’s February 19, 2019, order dismissing his serial 

PCRA petition as facially untimely despite his claims that he satisfied 

requirements to present exceptions to the time-bar. After careful review of 

the record, we perceive no merit to Appellant’s challenge. 

Our standard of review is well settled. “When reviewing the denial of a 

PCRA petition, we must determine whether the PCRA court's order is 

supported by the record and free of legal error.” Commonwealth v. Smith, 

181 A.3d 1168, 1174 (Pa.Super. 2018) (citation omitted). While a PCRA 

court's credibility determinations are generally binding upon us, we apply a de 

novo standard to our review of the court's legal conclusions. See id.
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A PCRA petition, including a second or subsequent one, must be 

filed within one year of the date the petitioner's judgment of 

sentence becomes final, unless he pleads and proves one of the 

three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A 

judgment becomes final at the conclusion of direct review by this 

Court or the United States Supreme Court, or at the expiration of 

the time for seeking such review. 42 Pa.C.S.[A.] § 9545(b)(3). 

The PCRA's timeliness requirements are jurisdictional; therefore, 

a court may not address the merits of the issues raised if the

petition was not timely filed. The timeliness requirements apply 

to all PCRA petitions, regardless of the nature of the individual 

claims raised therein. The PCRA squarely places upon the 

petitioner the burden of proving an untimely petition fits within 

one of the three exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (some internal 

citations and footnote omitted).

Appellant concedes his present petition is facially untimely. He asserts, 

however, that his claim merits review because he pled, and proved, an 

exception to the PCRA's one-year time-bar in his PCRA petition. The PCRA 

provides three exceptions to its time bar:

(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.A. § 9545(b)(1)(i)-(iii). A petitioner asserting one of these 

exceptions must file a petition within 60 days of the date the claim could have 
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first been presented. 42 Pa.C.S.A. § 9545(b)(2).

1

 Exceptions to the time-bar 

must be pled in the petition, and may not be raised for the first time on appeal. 

See Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007).

Appellant asserts he meets the requirements of 42 Pa.C.S.A. § 

9545(b)(1)(ii), i.e., the newly discovered fact exception to the PCRA's timebar. The newly discovered fact exception “has two components, which must 

be alleged and proved. The petitioner must establish that: 1) the facts upon 

which the claim was predicated were unknown and 2) could not have been 

ascertained by the exercise of due diligence. See Commonwealth v. 

Bennett, 930 A.2d 1264, 1272 (Pa. 2007).

Due diligence requires the petitioner “take reasonable steps to protect 

his own interests.” Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. 

Super. 2010) (citations omitted). However, it does not require “perfect 

vigilance nor punctilious care, but rather it requires reasonable efforts by a 

petitioner, based on the particular circumstances to uncover facts that may 

support a claim for collateral relief.” Commonwealth v. Shiloh, 170 A.3d 

553, 558 (Pa. Super. 2017) (citation omitted). As such, “the due diligence 

inquiry is fact-sensitive and dependent upon the circumstances presented.” 

Id. (citation omitted). “A petitioner must explain why he could not have 

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1 Section 9545(b)(2) has been amended, effective December 24, 2018, to 

permit the petition to be filed within one year of the first date on which the 

claim could have been presented. The amendment does not apply to the 

present matter, as Appellant filed the petition in question on September 6, 

2017.
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obtained the new fact(s) earlier with the exercise of due diligence.” Monaco, 

at 1080.

Further, section 9545(b)(1)(ii) “requires petitioner to allege and prove 

that there were ‘facts’ that were ‘unknown’ to him” and that he could not have 

ascertained those facts by the exercise of “due diligence.” See Bennett, at 

1270–72. “The focus of the exception is on the newly discovered facts, not 

on a newly discovered or newly willing source for previously known facts.” 

Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008).

Here, Appellant attached to his second PCRA petition an affidavit of 

Christina Rodriguez, in which she asserts that she witnessed the shooting of 

Jose Rivera. According to her statement, she performed CPR on Rodriguez 

until emergency personnel arrived, and she spoke to police at the scene, 

telling them she knew most of the “dudes” in the neighborhood but did not 

recognize the shooter. She claims no one ever contacted her afterward, 

although she learned “over the years that [Appellant] was accused of the 

shooting by the police.” She “knew Carlos then and [she] can say one hundred 

percent that [Appellant] was not shooting at Jose.” Rodriguez completes her 

affidavit by stating she would have testified for Carlos if anyone would have 

asked her, and by offering to testify in the future to what she witnessed.

Rodriguez’s affidavit does contain a newly discovered fact—her alleged 

eyewitness account of someone other than Appellant murdering Jose Rivera. 

Even if we were to assume, arguendo, that Appellant could not have 

ascertained Rodriguez’s eyewitness status prior to the expiration of the time 
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for filing, and that Appellant filed the present petition within 60 days of 

learning of Rodriguez’s willingness to supply an affidavit, we decline to remand

in this instance, for the PCRA court has appropriately deemed Rodriguez’s 

statement “patently suspect” and not credible under the circumstances.

2

 

Rodriguez asserts she advised police someone from outside the neighborhood 

shot Rivera and she subsequently “knew” Appellant had been wrongly accused 

by police of the murder, and yet she says only that she would have testified 

at the time if anyone would have asked her. In essence, therefore, Rodriguez 

elected to do nothing while claiming to “know” authorities were wrongfully 

accusing Appellant of a murder she witnessed. 

This record does not exactly qualify Rodriguez’s new statement as a 

witness recantation, which, it is well-settled, would permit a PCRA court to

reject a newly-discovered fact statement without first conducting a hearing. 

See Commonwealth v. Washington, 927 A.2d 586, 597 (Pa. 2007) 

(acknowledging the expedited credibility analysis may apply to statements not 

technically “recantations”). Yet, the diametrically opposed positions she has 

taken with respect to speaking out as a potential witness greatly undermines 

her reliability and genuineness as a source of information in much the same 

manner as a recantation would. By her own description of events, she has 

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2 We grant Appellant’s application for relief asking this Court to take judicial 

notice of our recent en banc decision in Commonwealth v. Brensinger, ---

A.3d----, 2019 PA Super 265 (Pa.Super. filed August 30, 2019) (holding public 

records presumption did not apply to defeat pro se prisoner’s newly discovered 

facts claim; under facts, pro se prisoner exception under Commonwealth v. 

Burton, 121 A.3d 1063 (Pa.Super. 2015) applied).
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gone from someone who remained indifferently silent while “knowing” an 

innocent man from her neighborhood was wrongly accused, to someone who 

now feels compelled to speak out, all without citing any reason for this unusual 

and drastic change in attitude. The court thus found her new statement 

neither credible nor persuasive evidence of innocence. Under the totality of 

evidence, we discern no error with the court’s finding in this regard. 

Therefore, we agree that Appellant’s petition does not qualify for a newlydiscovered fact exception to the time-bar through the affidavit of Christina 

Rodriguez.

The PCRA court likewise rejected Appellant’s remaining newlydiscovered fact proffer, that he only recently discovered that Javier Zayas, the 

man who rode with him in his pickup truck after the shooting and who testified 

against Appellant at his preliminary hearing, had died prior to Appellant’s 

guilty plea3 and, thus, would have been unavailable to testify against him at 

trial. 

First, the court opined, Appellant’s failure to provide any reason why he 

could not have discovered Zayas’ death sooner, particularly given Zayas’ 

continued involvement in Appellant’s criminal case at the time of his death, 

shows a lack of due diligence under Section 9545(b)(1)(ii), to the demise of 

his claim. Second, the court continued, even assuming Appellant had made 

the due diligence showing, he cannot show how Zayas’ death would have 

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3 Whether Zayas actually died before Appellant’s guilty plea hearing is unclear, 

but we assume, arguendo, that Appellant’s assertion in this regard is accurate. 
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mattered to his case, as his preliminary hearing testimony was damning and 

would have been admissible at Appellant’s criminal trial pursuant to Pa.R.E. 

804(b)(1). The record supports the court’s conclusion in this respect, as 

Appellant provides no meaningful argument that he was prejudiced without 

knowledge of this fact. Accordingly, we find no error with the PCRA court’s 

determination that Appellant’s discovery of Zayas’ death fails to qualify his 

untimely petition for an exception to the PCRA’s jurisdictional time-bar. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/23/19