J-S74021-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CYPRIAN DIAZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 978 EDA 2019

Appeal from the PCRA Order Entered March 8, 2019

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

No(s): CP-51-CR-0704571-2003

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

MEMORANDUM BY MURRAY, J.: Filed: February 7, 2020

Cyprian Diaz (Appellant) appeals pro se from the order dismissing his 

third petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 

Pa.C.S.A. §§ 9541-9546. We affirm. 

A prior panel of this Court summarized the facts and procedural history 

of this case: 

After a bench trial, Appellant was found guilty of first degree 

homicide and related offenses. The Commonwealth established 

that Appellant, while an adult, shot and killed his former wife and 

her husband. Appellant unsuccessfully pursued relief on direct 

appeal. Commonwealth v. Diaz, 927 A.2d 649 (Pa. Super. 

2007) (unpublished memorandum). Appellant was granted leave 

to file a Petition for Allowance of Appeal Nunc Pro Tunc, which was 

ultimately denied by our Supreme Court on February 12, 2010. 

Commonwealth v. Diaz, 989 A.2d 914 (Pa. 2010). Appellant 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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also pursued PCRA relief, which was denied by the PCRA court and 

affirmed on appeal by this Court. Commonwealth v. Diaz, 96 

A.3d 1079 (Pa. Super. 2014). He filed for discretionary review 

with our Supreme Court, which was denied on May 15, 2014. 

Commonwealth v. Diaz, 63 EAL 2014 (Pa. 2014) (unpublished 

in Atlantic Reporter). 

On December 11, 2015, Appellant filed [a] petition, styled 

as a request for habeas corpus relief. On February 8, 2016, the 

trial court determined that the petition must be treated as a 

request for relief under the PCRA, and, since Appellant failed to 

plead and prove an exception to the one-year time bar, issued a 

notice of intent to dismiss informing him of those procedural 

defects. . . . The [PCRA] court thereafter denied the petition on 

March 11, 2016[, and Appellant appealed]. 

Commonwealth v. Diaz, 1132 EDA 2016, *1-2 (Pa. Super. Feb. 22, 2017) 

(unpublished memorandum). 

On February 22, 2017, this Court affirmed the PCRA court’s order 

dismissing Appellant’s second PCRA petition. Id. On June 6, 2018, Appellant 

filed the underlying pro se petition for habeas corpus relief.

1 Appellant 

subsequently filed two amended PCRA petitions on July 26, 2018 and August 

22, 2018, respectively. On January 18, 2019, the PCRA court issued notice of 

its intent to dismiss Appellant’s petition without a hearing pursuant to Rule 

907 of the Pennsylvania Rules of Criminal Procedure. Appellant filed a 

response to the court’s notice, and on March 8, 2019, the PCRA court 

dismissed Appellant’s petition. Appellant appealed. 

Appellant raises two issues for review: 

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1 The PCRA court properly treated this request for relief as a PCRA petition. It 

is well-settled that the PCRA is intended to be the sole means of achieving 

post-conviction relief. See Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa. 

Super. 2013). 
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[1.] Whether Appellant is entitled to Post Conviction relief in the 

form of reinstatement of his right to Allowance of Appeal in the 

Pennsylvania Supreme Court from the May 14, 2007, decision of 

the Superior Court as a result of After-Discovered evidence 

concerning the competency of direct appeal counsel James Bruno, 

appointed December 18, 2007, during the period he suffered from 

Attention Deficit-Hyperactivity Disorder (“ADHD”) according to a 

November 13, 2014, Report and Recommendation of the 

Disciplinary Board of the Supreme Court of Pennsylvania provided 

to Appellant by a fellow prisoner on or about June 20, 2018, in the 

prison law library? 

[2.] Whether the trial court abused its discretion in dismissing 

Appellant’s State Habeas Corpus Petition alleging Penal Statute 18 

Pa.C.S. Section 1102(a) is unconstitutional and void under the 

Vagueness Doctrine because the statute fails to give a person of 

ordinary intelligence fair notice that its true penalty is life 

imprisonment “without parole”? 

Appellant’s Brief at 3. 

Preliminarily, in reviewing the denial of a PCRA petition, our review is 

limited to examining whether the PCRA court’s findings are supported by the 

record and free of legal error. See Commonwealth v. Hanible, 30 A.3d 

426, 438 (Pa. 2011). We view the findings of the PCRA court and the evidence 

of record in the light most favorable to the prevailing party. Id. “The PCRA 

court’s credibility determinations, when supported by the record, are binding 

on this Court; however, we apply a de novo standard of review to the PCRA 

court’s legal conclusions.” See Commonwealth v. Mason, 130 A.3d 601, 

617 (Pa. 2015).

Further, Pennsylvania law makes clear that no court has jurisdiction to 

hear an untimely PCRA petition. Commonwealth v. Monaco, 996 A.2d 
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1076, 1079 (Pa. Super. 2010) (quoting Commonwealth v. Robinson, 837 

A.2d 1157, 1161 (Pa. 2003)). A petitioner must file a PCRA petition within 

one year of the date on which the petitioner’s judgment of sentence became 

final, unless one of the three statutory exceptions applies:

(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). A petitioner must file a petition invoking one of 

these exceptions “within 60 days of the date the claim could have been 

presented.” 42 Pa.C.S.A. § 9545(b)(2).2 If a petition is untimely, and the 

petitioner has not pled and proven any exception, “neither this Court nor the 

trial court has jurisdiction over the petition. Without jurisdiction, we simply 

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2 Act 146 of 2018 amended 42 Pa.C.S.A. § 9545(b)(2), effective December 

2018, and now provides that a PCRA petition invoking a timeliness exception 

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

presented. Previously, a petitioner had 60 days from when the claim could 

have been presented. See Act 2018, Oct. 24, P.L. 894, No. 146, § 2 and § 3. 

Section 3 of Act 2018 provides that the amendment to subsection (b)(2) “shall 

apply only to claims arising one year before the effective date . . . or 

thereafter.” Id. This change does not impact our analysis. 
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do not have the legal authority to address the substantive claims.” 

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007) 

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).

Appellant’s PCRA petition is facially untimely. “A judgment is deemed 

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.’” Monaco, 996 A.2d at 

1079 (quoting 42 Pa.C.S.A. § 9545(b)(3)).

Here, the trial court entered Appellant’s judgment of sentence on 

December 7, 2005. Appellant appealed to this Court and the Pennsylvania 

Supreme Court, but did not seek review with the United States Supreme 

Court. Therefore, Appellant’s judgment of sentence became final 90 days 

from the February 12, 2010 order denying his petition for allowance of appeal 

with the Pennsylvania Supreme Court, or May 13, 2010. See 42 Pa.C.S.A. § 

9545(b)(3); U.S.Sup.Ct.R. 13. 

Under Section 9545(b)(1), Appellant had to file his PCRA petition within 

one year of his judgment of sentence becoming final – or May 13, 2011. 

Appellant did not file the instant petition, his third, until June 6, 2018. 

Accordingly, we are without jurisdiction to decide Appellant’s appeal unless he 

pled and proved one of the three timeliness exceptions of Section 9545(b)(1). 

See Derrickson, 923 A.2d at 468.

Appellant argues that he satisfied the newly-discovered fact exception 

under Section 9545(b)(1)(ii), and therefore, the PCRA court has jurisdiction 
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over the merits of his petition.3 In order to qualify for this exception, a 

petitioner must establish that (1) he did not know the facts upon which he

based his petition, and (2) he could not have learned those facts earlier with 

the exercise of due diligence. See 42 Pa.C.S.A. § 9545(b)(1)(ii). Both 

components “must be alleged and proven as an initial jurisdictional threshold.” 

Commonwealth v. Diggs, 220 A.3d 1112, 1117 (Pa. Super. 2019) (citation 

omitted).

Appellant argues that he meets the newly-discovered fact exception to 

the PCRA time bar because his court-appointed attorney on direct appeal 

“suffered from Attention Deficit-Hyperactivity Disorder [] according to a 

November 13, 2014[] Report and Recommendation of the Disciplinary Board 

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3 Throughout his brief, Appellant uses the term “after-discovered facts,” 

instead of “newly discovered facts” in pleading an exception to the PCRA timebar. There is an important and often misapprehended distinction between the 

newly discovered facts exception to the time limitations of the PCRA and afterdiscovered evidence as a basis for substantive relief. The Supreme Court of 

Pennsylvania offered the following clarification:

To qualify for an exception to the PCRA’s time limitations under 

subsection 9545(b)(1)(ii), a petitioner need only establish that the 

facts upon which the claim is based were unknown to him and 

could not have been ascertained by the exercise of due diligence. 

However, where a petition is otherwise timely, to prevail on an 

after-discovered evidence claim for relief under subsection 

9543(a)(2)(vi), a petitioner must prove that (1) the exculpatory 

evidence has been discovered after trial and could not have been 

obtained at or prior to trial through reasonable diligence; (2) the 

evidence is not cumulative; (3) it is not being used solely to 

impeach credibility; and (4) it would likely compel a different 

verdict.

Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 2017). 
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of the Supreme Court of Pennsylvania provided to Appellant by a fellow 

prisoner on or about June 20, 2018[] in the prison law library[.]” Appellant’s 

Brief at 3. Appellant’s July 26, 2018 amended petition further explains:

On December 18, 2007, the [PCRA] court appointed 

Attorney [James] Bruno to represent [Appellant] in his PCRA 

matter. 

* * *

[Attorney] Bruno had significant personal issues and legal 

difficulties that greatly hindered him from adequately advising and 

representing [Appellant]. Despite all of these personal and 

professional problems, [Attorney] Bruno did not attempt to 

withdraw his representation and continued to represent 

[Appellant]. 

* * *

The allegations that [Appellant] has made in this Amended 

petition go to the heart of Attorney Bruno’s representation of 

[Appellant]. Where an attorney is rendered incompetent by 

personal or disciplinary problems, [Appellant] is not represented 

by ineffective counsel, but is essentially represented by no counsel 

at all. 

* * *

If the abandonment of counsel of his client warrants 

relieving a defendant of the requirement of proving prejudice to 

sustain a claim of ineffectiveness assistance of counsel, such a 

claim, as the one made in the instant matter, must trump the time 

requirements for filing a claim of the after-discovered facts 

exception under 42 Pa.C.S.A. § 9545(b)(1)(ii). 

Appellant’s Amended PCRA Petition, 7/26/18, at 4-6, 8. See also Appellant’s 

Brief at 8 (“Appellant submits that he is entitled to post-conviction relief based 

upon after-discovered evidence since his right to competent counsel was 
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compromised by Attorney Bruno’s competency during direct appeal in the 

Pennsylvania Supreme Court.”). 

Here, the PCRA court concluded that Appellant failed to satisfy any of 

the statutory exceptions to the PCRA time-bar. In particular, the PCRA court 

determined that the newly discovered fact exception did not apply because 

the “new facts” Appellant alleged in his petition involved claims of his counsel’s 

ineffectiveness, which are not recognized as facts under the PCRA statute. 

PCRA Court’s Opinion, 7/15/19, at 5 (citing Commonwealth v. Wharton, 

886 A.2d 1120, 1127 (Pa. 2005). 

We agree. Appellant’s attempt to interweave a claim of ineffective 

assistance of counsel with the newly discovered facts exception as a means of 

establishing jurisdiction is unavailing. See id. (“It is well settled that 

allegations of ineffective assistance of counsel will not overcome the 

jurisdictional timelines requirements of the PCRA.”); Commonwealth v. 

Gamboa-Taylor, 753 A.2d 780, 785 (Pa. 2000) (“This Court has stated 

previously that a claim for ineffective assistance of counsel does not save an 

otherwise untimely petition for review on the merits.”) (citations omitted). 

In sum, a claim that prior counsel was ineffective is not the type of newly 

discovered fact encompassed by the exception. Because Appellant’s petition 

is untimely and not subject to a statutory exception to the PCRA’s time bar, 

the PCRA court lacked jurisdiction. We therefore affirm the order denying 

relief.
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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/7/20