J-S24042-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SALVADOR MORALES A/K/A SIMON 

PIRELA 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1484 EDA 2021

Appeal from the PCRA Order Entered June 17, 2021

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

No(s): CP-51-CR-1012921-1982

BEFORE: PANELLA, P.J., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 23, 2022

Salvador Morales a/k/a Simon Pirela (Morales) appeals pro se from the 

order denying his serial petition filed pursuant to the Post-Conviction Relief 

Act (PCRA), 42 Pa.C.S. §§ 9541-9546, in the Court of Common Pleas of 

Philadelphia County (PCRA court), as untimely. He claims that the 

governmental interference exception is applicable to him because a February 

19, 2019 Philadelphia Inquirer article about the District Attorney’s agreement 

to vacate the conviction of his co-conspirator, Orlando Maisonet, evidences a 

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* Retired Senior Judge assigned to the Superior Court.
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Brady1 violation. He also claims the applicability of the newly-discovered 

facts exception based on the same article because it proves that witness 

Heriberto Colon potentially provided false testimony against him. We affirm.

We take the following factual background and procedural history from 

the PCRA court’s February 9, 2022 opinion and our independent review of the 

certified record.

I.

A.

In August 1982, Morales and his brother, leaders of a drug-dealing 

organization, stabbed Jorge Figueroa to death. The brothers were tried 

together in 1983, but a third alleged co-conspirator, Orlando Maisonet, had 

not been apprehended at that time. Eyewitnesses Lisa and Heriberto Colon 

lived in the house where the murder occurred and were there when it 

happened. Assistant District Attorney (ADA) Roger King conducted the 

preliminary hearing and ADA Sandy Byrd prosecuted Morales’s case. On May 

18, 1983, the jury convicted Morales of first-degree murder, conspiracy and 

possessing an instrument of crime. The trial court sentenced him to death

and the Pennsylvania Supreme Court affirmed the judgment of sentence on 

June 18, 1985. (See Commonwealth v. Morales, 494 A.2d 367 (Pa. 1985)).

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1 Brady v. Maryland, 373 U.S. 83 (1963). This requires prosecutors to 

disclose materially exculpatory evidence in the government's possession to 

the defense.
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On March 11, 1987, Morales filed a pro se PCRA petition and appointed 

counsel filed an amended petition, which the court denied. The Superior Court 

affirmed the denial and the Pennsylvania Supreme Court denied further review

on June 4, 1990. (See Commonwealth v. Morales, 565 A.2d 820 (Pa. 

Super. filed Aug. 30, 1989) (unpublished memorandum), appeal denied, 585 

A.2d 467 (Pa. 1990)).

Morales filed a counseled second PCRA petition on June 2, 1992. On 

November 17, 1997, the Pennsylvania Supreme Court found that all claims 

but one were meritless or previously litigated and remanded for a new 

sentencing hearing. (See Commonwealth v. Morales, 701 A.2d 516 (Pa. 

1997)). On January 19, 2000, a jury found that the mitigating circumstances 

outweighed the aggravating circumstances and Morales was resentenced to 

life imprisonment.2

B.

Maisonet was apprehended and convicted for his participation in 

Figueroa’s murder in 1992. ADA King prosecuted his case. In 2016, Maisonet

filed a PCRA petition alleging multiple claims of trial counsel ineffectiveness 

and prosecutorial misconduct. In 2018, the Commonwealth agreed to guilt 

phase relief based on trial counsel’s ineffectiveness but did not concede 

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2 Thereafter, between then and the petition currently under review, Morales 

filed at least two PCRA petitions that were denied. (See PCRA Court Opinion, 

2/09/22, at 2).
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prosecutorial misconduct. Maisonet’s conviction was vacated in February 

2019, and instead of being retried, he chose to plead no contest to third 

degree murder, conspiracy and PIC, for which he was sentenced to timeserved.

On February 19, 2019, the Philadelphia Inquirer published an article 

about Maisonet’s case,

3

reporting, in pertinent part, that:

[In addition to alleging ineffective assistance of trial 

counsel,] Maisonet and his lawyers claimed that [ADA] King had 

falsified evidence, withheld information from the defense, and 

failed to notify the court of possible perjured testimony. The 

District Attorney’s Office supported vacating the conviction, 

thought it did not concede misconduct. Instead, [it] agreed that 

Maisonet had received inadequate legal representation, and that 

it had been prejudicial when [ADA] King showed the jury a clip 

from America’s Most Wanted that included a dramatization of the 

crime. ...

(Appellant’s Brief, at Attachment 1, Philadelphia Inquirer Article, 2/19/19).

This video had not been shown at Morales’s trial and ADA King was not 

the prosecuting attorney in his case.

C.

On April 4, 2019, Morales filed his PCRA petition now under review. He 

claimed that the February 19, 2019 Philadelphia Inquirer article was sufficient 

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3 According to the article, Maisonet had contended for decades that Morales 

and his brother murdered Jose Figueroa and forced him to help dispose of the 

body. (See Appellant’s Brief, at Attachment 1, Philadelphia Inquirer Article, 

2/19/19). Figueroa’s sister testified at Maisonet’s PCRA hearing in support of 

vacating his murder conviction.
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to overcome the PCRA’s time-bar under either the governmental interference 

or newly-discovered facts exception. Specifically, he alleged that because 

Maisonet’s judgment was based in part on the testimony of Heriberto Colon, 

who also testified in his trial, the Commonwealth committed governmental 

interference by offering this possibly perjured testimony and committing other 

unspecified prosecutorial misconduct in his case. He also claimed that the 

Commonwealth’s misconduct is a previously unknown fact that he only 

became aware of from the Philadelphia Inquirer article. (See Pro Se PCRA 

Petition, 4/04/19, at 3). On April 30, 2021, the trial court provided Morales 

with Rule 907 notice of its intent to dismiss the petition without a hearing. 

See Pa.R.Crim.P. 907(1). The court formally dismissed the petition on June 

17, 2021, and Morales timely appealed.4, 5

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4 The court did not order Morales to file a statement of errors complained of 

on appeal. See Pa.R.A.P. 1925(b).

5 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). “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).
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II.

A.

Before considering the merits of Morales’s PCRA petition, we must first 

determine whether the PCRA court properly found that it is untimely under 

the PCRA’s jurisdictional time-bar. 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 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. § 9545(b)(3). Because 

the timeliness requirements of the PCRA are jurisdictional in nature, courts 

cannot address the merits of an untimely petition. See Commonwealth v.

Moore, 247 A.3d 990, 998 (Pa. 2021).

Morales’s judgment of sentence became final on September 16, 1985, 

when his time to file a petition for writ of certiori with the United States 

Supreme Court expired. See 42 Pa.C.S. § 9545(b)(3); U.S. S. Ct. Rule 13(1). 

Therefore, he had until September 16, 1986, to file a timely PCRA petition. 

See 42 Pa.C.S. § 9545(b)(1). Because Morales did not file the instant PCRA 

petition until approximately 33 years later, on April 4, 2019, it is facially 

untimely, and we lack jurisdiction to consider the appeal’s merits unless he 

pleads and proves one of the three limited exceptions to the time-bar:

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

interference by government officials with the presentation of the 
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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).

Morales argues that the “gist of what he has newly discovered” from the 

Philadelphia Inquirer article is that “the Commonwealth’s key witness in [his] 

trial and Maisonet’s trial ... apparently committed perjury, along with other 

allegations of prosecutor misconduct against ADA King, that prompted”

vacating Maisonet’s conviction. (Morales’s Brief, at 6).

6

 He maintains that 

these facts support either the governmental interference exception based on 

a Brady claim or a newly-discovered facts exception. (See id. at 1, 4-6, 8).

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6 Morales also attaches a November 14, 2021 Philadelphia Inquirer article to 

his brief and argues that this offers further proof of the Commonwealth’s 

alleged governmental interference. (See Morales’s Brief, at 5-6, Attachment 

2). However, we are precluded from considering this article because we may 

only consider evidence of record in the PCRA court at the time the subject 

order was entered. See Commonwealth v. Duffey, 889 A.2d 56, 61 (Pa. 

2005). Moreover, the article is not about Morales’s case and ADA King was 

not the prosecutor.
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1.

“Although a Brady violation may fall within the governmental 

interference exception, the petitioner must plead and prove the failure to 

previously raise the claim was the result of interference by government 

officials, and the information could not have been obtained earlier with the 

exercise of due diligence.” Commonwealth v. Abu-Jamal, 941 A.2d 1263, 

1268 (Pa. 2008), cert. denied, 555 U.S. 916 (2008) (citation omitted).

First, while Morales maintains that he has discovered that the key 

witness in both his own and Maisonet’s trial possibly committed perjury and 

that other potential prosecutorial misconduct occurred, this is pure speculation 

where Maisonet’s counsel made the claims, but the Commonwealth did not 

concede any misconduct. Instead, Maisonet’s conviction was vacated due to 

defense counsel’s ineffectiveness. In fact, even if the Commonwealth had

conceded misconduct in that case, it would not establish any Brady violations 

or misconduct in Morales’s case.

ADA King, the subject of the Philadelphia Inquirer article, was not even 

the prosecutor in Morales’s case, and Morales provides absolutely no proof or 

any specific allegations that the ADA in his own case committed any 

misconduct. Hence, the PCRA court properly found that he has failed to plead 

and prove the applicability of the governmental interference exception. See 

Commonwealth v. Dickerson, 900 A.2d 407, 411 (Pa. Super. 2006), appeal 

denied, 911 A.2d 933 (Pa. 2006) (finding that alleged Brady violation did not 
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establish governmental interference exception to the PCRA time-bar where it 

was “nothing but pure speculation.”).

2.

The newly-discovered facts 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.[’]”

Commonwealth v. Small, 238 A.3d 1267, 1271 (Pa. 2020), 

(quoting 42 Pa.C.S. § 9545(b)(1)(ii).) A PCRA court must first 

determine “whether the facts upon which the claim is predicated 

were unknown to the petitioner[.]” Id. at 1282 (original quotation 

marks omitted). If the PCRA court concludes that the facts were 

unknown, then the PCRA court must next 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).

Commonwealth v. Trivigno, 262 A.3d 472, at *3 (Pa. Super. filed Aug. 6, 

2021).7 Under the newly-discovered facts exception, “the focus is on newly 

discovered facts, not on a new source for previously unknown facts.” 

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

added).

Morales argues that the discovery of the February 19, 2019 article that 

contained allegations of misconduct against ADA King in Maisonet’s trial, 

particularly the unsubstantiated claim of perjured testimony, was a fact also 

supporting the newly-discovered facts exception. (See Morales’s Brief, at 4-

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7 “Non-precedential Superior Court decisions filed after May 1, 2019 may be 

cited for their persuasive value.” Pa.R.A.P. 126(b).
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6). Although Trivigno addressed an article’s allegations against a detective 

rather than an ADA, we find its reasoning instructive. In Trivigno,

Appellant argue[d], in sum, that a newspaper article 

describing or encouraging ongoing investigations of [an 

investigating detective]’s alleged misconduct in other cases 

satisfies the newly-discovered facts exception to the PCRA 

jurisdictional time-bar. We find Commonwealth v. Chmiel, 173

A.3d 617 (Pa. 2017) instructive in resolving the precise issue 

before us. In Chmiel, our Supreme Court held that an FBI press 

release, and the attendant admissions by the FBI contained 

therein, constituted a newly-discovered fact for purposes of 

triggering an exception to the PCRA jurisdictional time-bar. 

Chmiel, 173 A.3d at 629. Chmiel asserted that an FBI press 

release and a subsequent Washington Post article publicizing the 

press release contained facts which satisfied the newly-discovered 

facts exception. Id. at 625. Inherent in both the FBI press release 

and the Washington Post article were the facts that (1) “the FBI 

publicly admitted that the testimony and statements provided by 

its analysts about microscopic hair comparison analysis were 

erroneous in the vast majority of cases” and (2) “the FBI had 

trained many state and local analysts to provide the same 

scientifically flawed opinions in state criminal trials.” Id. Our 

Supreme Court concluded that it was not the source of the facts, 

i.e., a press release or a newspaper article, that satisfied the 

newly-discovered facts exception but, rather, it was the 

information contained in those media sources which satisfied the 

newly-discovered facts exception. Id. at 628. Stated simply, 

facts are not what a reader gleans from media reports or 

newspaper articles but, instead, facts are the substantive events, 

i.e., the FBI’s admission of error, which prompted the report by 

the media. See Castro, 93 A.3d at 825 n.11 (reiterating that, 

“[facts] cannot consist of what one hears on the news” (citation 

omitted))[.] ...

... [Here,] [a]lthough the newspaper article reports instances of 

alleged misconduct by [the subject detective] in his investigation 

of other criminal cases, the newspaper article, unlike the FBI press 

release in Chmiel, does not specifically cite any admissions or 

conclusive findings of wrong-doing by [the detective] that may be 

linked to Appellant’s case. Id. ... Therefore, Appellant failed to 

demonstrate that the newspaper article contained a fact that 
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triggered the newly-discovered facts exception set forth at 42

Pa.C.S.A. § 9545(b)(1)(ii).

Trivigno, supra at *4 (one case citation omitted).

Similarly, here, the substantive event for the Philadelphia Inquirer 

article was that the Commonwealth agreed with the decision to vacate 

Maisonet’s sentence for defense counsel’s ineffective assistance and because 

of a prejudicial video, but “did not concede misconduct” by ADA King. 

(Morales’s Brief, at Attachment 1). Although the article states that Maisonet’s 

counsel claimed prosecutorial misconduct, including possibly suborning

perjury, it does not cite any admissions or conclusive findings of wrongdoing

in Maisonet’s case, let alone in Morales’s. Morales was prosecuted by a 

different ADA, the two men had different defense counsel and the prejudicial 

video was not shown at Morales’s trial.

Further, Morales does not fall within the exception that the 

Commonwealth committed governmental interference by offering this possibly 

perjured testimony. He suggests that the perjured testimony was that of 

Heriberto Colon, who also testified in his trial. The Philadelphia Inquirer article 

does not name Heriberto Colon, and Morales does identify what Colon testified 

that he purports was perjured.

Finally, Morales is unable to establish that he exercised due diligence in 

discovering any alleged perjury in Maisonet’s case and its potential effect on 

his own conviction. Maisonet’s trial was in 1992. If there was any perjured 

testimony that was inconsistent with a version of events testified to in 
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Morales’s trial, Morales could have discovered it at that time. See, e.g., 

Commonwealth v. Porter, 35 A.3d 4, 21-22 (Pa. 2012) (finding lack of 

diligence when defendant did not explain why he could not have contacted 

known witness in decades between trial and discovery of alleged new fact).

Accordingly, the PCRA court properly found that Morales also has failed 

to plead and prove that that the newspaper article contained a fact that 

triggered the newly-discovered facts exception or that any allusion to perjury 

established the governmental interference exception.

B.

Moreover, we briefly note that even assuming arguendo that the 

Philadelphia Inquirer article formed the basis for a PCRA time-bar exception, 

Morales would not be entitled to relief under a newly-discovered evidence 

theory. “[A] defendant seeking a new trial must demonstrate he will not use 

the alleged after-discovered evidence solely to impeach a witness’s

credibility.” See Commonwealth v. Griffin, 137 A.3d 605, 610 (Pa. Super. 

2016), appeal denied, 157 A.3d 476 (Pa. 2016). Any evidence of Colon giving 

perjured or inconsistent testimony would go solely to impeach his credibility.

Additionally, Morales is unable to prove a Brady claim based on the 

Philadelphia Inquirer article where no wrongdoing was conceded, and the 

subject ADA was not involved in his case after the preliminary hearing. There

has been absolutely no allegation in the decades since Morales’s trial that the

Commonwealth’s attorney in his case committed any wrongdoing such as that 
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alleged in the Maisonet litigation. (See Morales’s Brief, at 5) (quoting 

Philadelphia Inquirer article’s language that “Maisonet and his lawyers claimed 

that King had falsified evidence, withheld information from the defense, and 

failed to notify the court of possible perjured testimony.”). Even if the article 

were considered newly-discovered evidence, Morales would not be entitled to 

relief because it would have no material effect on the circumstances of his 

case. See Commonwealth v. Tharp, 101 A.3d 736, 748 (Pa. 2014) (“[T]he 

question is not whether the defendant would more likely than not have 

received a different verdict with the evidence, but whether in its absence he 

received a fair trial, understood as a trial resulting in a verdict worthy of 

confidence.”).8 Accordingly, even if the subject article could form the basis 

for a PCRA timeliness exception, Morales would not be entitled to relief.

Order affirmed.

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8 Morales complains that the court dismissed his petition without appointing 

counsel or convening an evidentiary hearing. (See Morales’s Brief, at 1, 6). 

This complaint is not persuasive. It is well-settled that “[t]he PCRA court has 

the discretion to dismiss a petition without a hearing when the court is satisfied 

that there are no genuine issues concerning any material fact, the defendant 

is not entitled to post-conviction collateral relief, and no legitimate purpose 

would be served by further proceedings.” Commonwealth v. Brown, 196 

A.3d 130, 192-93 (Pa. 2018) (citation and internal quotation marks omitted). 

“An evidentiary hearing is not meant to function as a fishing expedition for 

any possible evidence that may support some speculative claim[.]” Id. at 193 

(citation and internal quotation marks omitted). Further, pursuant to 

Pa.R.Crim.P. 1504, “the PCRA court is required to provide counsel to indigent 

petitioners only on the first PCRA petition.” Commonwealth v. Vega, 754 

A.2d 714, 719 (Pa. Super. 2000) (emphasis in original).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/23/2022