J-S64003-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

FRANCISCO MOJICA

Appellant No. 453 EDA 2016

Appeal from the PCRA Order entered January 22, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No: CP-51-CR-0744031-1991

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

MEMORANDUM BY STABILE, J.: FILED DECEMBER 13, 2016

Appellant, Francisco Mojica, appeals pro se from the January 22, 2016 

order entered in the Court of Common Pleas of Philadelphia County, denying 

his petition for collateral relief filed pursuant to the Post Conviction Relief 

Act, 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

We summarized the underlying factual background in our 

memorandum issued in connection with Appellant’s direct appeal. Briefly, 

Appellant and his accomplice, Tomas Vasquez (Appellant’s brother), while in 

the process of burglarizing a residence to steal weapons, were discovered by 

the victim. An exchange of gunfire took place, killing the victim and 

wounding Appellant and his accomplice. Following a bench trial, Appellant 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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was convicted of second degree murder, criminal conspiracy, burglary, and 

robbery. On direct appeal, we affirmed Appellant’s judgments of sentence 

for second degree murder, criminal conspiracy, and burglary, but vacated 

the sentence on the robbery conviction because the sentence on the robbery 

conviction should have merged with the sentence on the conviction of 

murder in the second degree. See Commonwealth v. Mojica, 1960 

Philadelphia 1996 (Pa. Super. filed January 29, 1998). The Supreme Court 

denied allocatur on November 5, 1998. See Commonwealth v. Mojica, 

711 A.2d 1041 (Pa. 1998). 

On December 7, 1999, Appellant filed his first PCRA petition, which the 

PCRA court dismissed on January 25, 2002.1 This Court affirmed the 

dismissal on October 16, 2003. See Commonwealth v. Mojica, 1062 EDA 

2002 (Pa. Super. filed October 16, 2003). On July 8, 2015, Appellant filed 

the instant petition, which the PCRA court dismissed on January 22, 2016, as 

untimely. This appeal followed. 

____________________________________________

1

“[Appellant] filed a previous PCRA [petition], which resulted in restoration 

of his appellate rights to appeal his judgment of sentence. For the purposes 

of the PCRA, this petition constitutes [Appellant]’s first PCRA petition.” PCRA 

Court Memorandum Order and Opinion, 1/22/16, at 1 n.1. 
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On appeal, Appellant essentially raises two issues: (i) the PCRA court 

erred in finding that his PCRA petition was untimely and (ii) the PCRA court 

erred in not holding a hearing on his PCRA petition.2

In connection with his first claim, Appellant openly acknowledges that 

his PCRA petition is facially untimely. However, he argues that he pleaded 

and proved he met the “newly discovered” fact exception to the PCRA time 

bar. See 42 Pa.C.S.A. § 9545(b)(1)(ii).3 We disagree.

“[A]n appellate court reviews the PCRA court’s findings of fact to 

determine whether they are supported by the record, and reviews its 

conclusions of law to determine whether they are free from legal error.” 

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). All PCRA 

petitions, “including a second or subsequent petition, shall be filed within 

one year of the date the judgment becomes final” unless an exception to 

timeliness applies. 42 Pa.C.S.A. § 9545(b)(1). “The PCRA’s time 

restrictions are jurisdictional in nature. Thus, [i]f a PCRA petition is 

untimely, neither this Court nor the [PCRA] court has jurisdiction over the 

petition. Without jurisdiction, we simply do not have the legal authority to 

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2

In his Pa.R.A.P. 1925(b) statement Appellant also alleged ineffective 

assistance of counsel. Appellant, however, did not renew his challenge 

before us. Accordingly, we conclude Appellant abandoned this challenge, 

and we will not address it in this memorandum. 

3

“[T]he facts upon which the claim is predicated were unknown to the 

petitioner and could not have been ascertained by the exercise of due 

diligence[.]” 42 Pa.C.S.A. § 9545(b)(1)(ii). 
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address the substantive claims.” Commonwealth v. Chester, 895 A.2d 

520, 522 (Pa. 2006) (first alteration in original) (internal citations and 

quotation marks omitted). As timeliness is separate and distinct from the 

merits of Appellant’s underlying claims, we first determine whether this

PCRA petition is timely filed. See Commonwealth v. Stokes, 959 A.2d 

306, 310 (Pa. 2008). 

Appellant argues that the new fact discovered is a statement from his 

brother, Tomas Vasquez,4 who, approximately twenty years after Appellant’s 

judgment became final, exonerates Appellant from any criminal 

responsibility for the underlying crimes. Appellant is not entitled to relief.

The mere identification of a “new fact” is not in itself sufficient to meet 

the alleged “newly discovered” exception. Indeed, before Appellant may 

avail himself of this exception, he must first establish that the facts upon 

which the claim is predicated were unknown and that he could not have 

ascertained those facts by the exercise of due diligence. Commonwealth 

v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (internal citations and 

quotations omitted). 

In the present case, Appellant asserts that the new “facts,” as 

conveniently revisited by his brother in the affidavit,5 were unknown to him. 

____________________________________________

4 Tomas Vasquez was tried separately and convicted of third degree murder 

for his role in the crimes committed with Appellant. 

5 The PCRA court also properly noted:

(Footnote Continued Next Page)
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Regardless of credibility issues, which we do not assess here, Appellant fails 

to indicate what efforts, if any, he undertook to ascertain the supposedly 

unknown facts. Indeed, his brief is devoid of any statement to that effect. 

The PCRA court also noted 

Since [Appellant] and Mr. Vasquez agree that they were together 

at the time of the incident in 1991, [Appellant] was fully aware 

of Mr. Vasquez’s existence at the time of the incident. 

[Appellant] has not demonstrated what steps he took, if any, in 

the last 24 years to contact Mr. Vasquez and obtain his 

testimony. In fact, [Appellant] admits that Mr. Vasquez 

recanted his statement after [Appellant]’s trial but before Mr. 

Vasquez went on trial for these same charges two years later. 

Therefore, [Appellant] should have raised this issue at that time, 

and pursued his claim in a timely fashion.

PCRA Court Memorandum Order and Opinion, 1/22/16, at 4 (citation and 

footnote omitted). 

A review of record, therefore, shows that Appellant failed to explain 

what steps he took to pursue this matter. Accordingly, Appellant failed to 

(Footnote Continued) _______________________

Upon review of [Mr.] Vasquez’s affidavit, it is unclear what part 

of his testimony is being used to invoke the after discovered fact 

evidence. Mr. Vasquez’s testimony essentially aligns with the 

testimony at trial. Most of his statement addresses the 

unfairness in the discrepancy in their sentences where 

[Appellant] was convicted of second degree murder and Mr. 

Vasquez, the shooter, was convicted of third degree murder. 

However, Mr. Vasquez’s complaints and grievances do not 

amount to an after-discovered fact that invokes this exception.

PCRA Court Memorandum Order and Opinion, 1/22/16, at 4 n.5 (citation 

omitted).
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prove that he met the requirements for the newly discovered fact exception. 

Cf. Bennett, 930 A.2d at 1272; see also Commonwealth v. Williams, 35 

A.3d 44, 53 (Pa. Super. 2011) (“Due diligence demands that the petitioner 

take reasonable steps to protect his own interests.”). Thus, we conclude that 

we have no jurisdiction to entertain Appellant’s PCRA petition, and that the 

PCRA court did not err in dismissing the instant PCRA petition as untimely. 

Regarding the second claim of error (i.e., PCRA court failed to hold a 

hearing on Appellant’s PCRA petition), the PCRA court did not err in 

dismissing the petition without a hearing. See Commonwealth v. 

Marshall, 947 A.2d 714, 723 (Pa. 2008) (“As explained supra, we have 

concluded that [a]ppellant’s petition was untimely, and accordingly the PCRA 

court properly determined that it had no jurisdiction to entertain it. We 

therefore also must conclude that the PCRA court did not err in dismissing 

[a]ppellant’s petition without a hearing.”). 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/13/2016
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