J-S47007-15

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOSE ANTONIO RIVERA-QUINONES,

Appellant No. 438 MDA 2015

Appeal from the PCRA Order entered February 5, 2015,

in the Court of Common Pleas of Lancaster County,

Criminal Division, at No(s): CP-36-CR-0002545-2007

BEFORE: ALLEN, OTT, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.: FILED JULY 24, 2015

Jose Antonio Rivera-Quinones (“Appellant”) appeals pro se from the 

order denying his third petition for post-conviction relief filed pursuant to the 

Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.

The prolonged procedural history is as follows:

On May 14, 2008, a jury found Appellant guilty of two 

counts of attempted criminal homicide and [related 

charges]. On July 30, 2008, the court sentenced Appellant 

to an aggregate term of not less than thirty-six nor more 

than seventy-two years of incarceration. Appellant timely 

appealed, and this Court affirmed the judgment of 

sentence on October 21, 2009. [Commonwealth v. 

Rivera-Quinones, [987 A.2d 822 (Pa. Super. 2009)

(unpublished memorandum)].

On June 10, 2010, Appellant timely filed his first pro se 

PCRA petition. The court appointed counsel, who filed a 

[no-merit letter and motion to withdraw pursuant to 
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Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), 

and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 

1988) (en banc), on July 9, 2010[.] The PCRA court 

issued notice of its intent to dismiss Appellant’s petition 

without a hearing pursuant to Pennsylvania Rule of 

Criminal Procedure 907(1), and Appellant responded pro 

se. On December 28, 2010, the court permitted counsel to 

withdraw and dismissed the petition. Appellant appealed 

pro se; this Court affirmed the PCRA court’s order on 

October 11, 2011, and our Supreme Court subsequently 

denied review. (See Commonwealth v. RiveraQuinones, 37 A.3d 1227 (Pa. Super. 2011) (unpublished 

memorandum), appeal denied, 42 A.3d 292 (Pa. 2012)).

On September 13, 2012, Appellant filed the instant 

second PCRA petition pro se. The PCRA court issued notice 

of its intent to dismiss the petition as untimely on October 

23, 2012, and Appellant did not respond. Thereafter, on 

January 9, 2014, the court dismissed the petition, and 

Appellant timely appealed.

Commonwealth v. Rivera-Quinones, 106 A.3d 160 (Pa. Super. 2014), 

unpublished memorandum at 1-3 (footnotes omitted). On August 14, 2014, 

we agreed with the PCRA court’s conclusion that Appellant’s second PCRA 

petition was untimely, and that Appellant failed to establish a time-bar 

exception. See id., unpublished memorandum at 5-7.

On October 22, 2014, Appellant filed the pro se PCRA petition at issue. 

On January 7, 2015, the PCRA court issued Pa.R.Crim.P. 907 notice of intent 

to dismiss this latest filing as untimely. Appellant filed his pro se response 

on January 26, 2015. By order entered February 5, 2015, the PCRA court 

dismissed Appellant’s third petition.

Appellant filed a timely appeal to this Court, in which he challenges the 

PCRA court’s determination that he failed to establish an exception to the 
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PCRA’s time bar. Although the PCRA court did not require Appellant to 

comply with Pa.R.A.P. 1925(b), it filed an Pa.R.A.P. 1925(a) opinion on April 

13, 2015.

This Court’s standard of review regarding an order dismissing a 

petition under the PCRA is whether the determination of the PCRA court is 

supported by the evidence of record and is free of legal error. 

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA 

court’s findings will not be disturbed unless there is no support for the 

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 

1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a 

hearing on the petition if the PCRA court determines that the petitioner’s 

claim is patently frivolous and is without a trace of support in either the 

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011 

(Pa. Super. 2001).

The timeliness of a post-conviction petition is jurisdictional. 

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation 

omitted). Thus, if a PCRA petition is untimely, neither an appellate court nor 

the PCRA court has jurisdiction over the petition. Id. “Without jurisdiction, 

we simply do not have the legal authority to address the substantive claims” 

raised in an untimely petition. Id.

Generally, a petition for relief under the PCRA, including a second or 

subsequent petition, must be filed within one year of the date the judgment 
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becomes final unless the petition alleges, and the petitioner proves, an 

exception to the time for filing the petition. Commonwealth v. GamboaTaylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under 

these exceptions, the petitioner must plead and prove that: “(1) there has 

been interference by government officials in the presentation of the claim; or 

(2) there exists after-discovered facts or evidence; or (3) a new 

constitutional right has been recognized.” Commonwealth v. Fowler, 930 

A.2d 586, 591 (Pa. Super. 2007) (citations omitted). A PCRA petition 

invoking one of these statutory exceptions must “be filed within sixty days of 

the date the claim first could have been presented.” Gamboa-Taylor, 753 

A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to 

the time restrictions of the PCRA must be pled in the petition, and may not 

be raised for the first time on appeal. Commonwealth v. Burton, 936 

A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not 

raised before the lower court are waived and cannot be raised for the first 

time on appeal.”).

“Here, Appellant’s judgment of sentence became final on November 

20, 2009, when his time to seek an appeal to our Supreme Court expired. 

See 42 Pa.C.S.A. § 9545(b)(3).” Rivera-Quinones, unpublished 

memorandum at 5. Appellant filed the instant PCRA petition almost five 

years later. As a result, his PCRA petition is patently untimely unless he has 

satisfied his burden of pleading and proving that one of the enumerated 
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exceptions applies. See Commonwealth v. Beasley, 741 A.2d 1258, 1261 

(Pa. 1999).

Within his brief, Appellant refers to a September 22, 2014 handprinted affidavit from Jessica Soto which he attached to his third PCRA 

petition. In this affidavit, Ms. Soto avers:

The weapons found on March 23, 2007, in that apartment 

and introduced at trial of [Appellant] were my weapons. I 

was approached to testify at the trial of [Appellant], [b]ut I 

did not want to get involved at the time. I am willing and 

able to testify at any future hearing conducted in this 

matter, if need be, to the contents of this affidavit.

Affidavit, 9/22/14, at 1.

When considering a PCRA petitioner’s claim that he or she has 

established an exception to the PCRA’s time bar under section 

9545(b)(1)(ii), the petitioner must establish only that the facts upon which 

the claim was predicated were unknown to him, and that he could not have 

ascertained the facts earlier despite the exercise of due diligence. 

Commonwealth v. Bennett, 930 A.2d 1264, 1270-72 (Pa. 2007). The 

determination of timeliness does not require a merits analysis. 

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008).

In rejecting Appellant’s claim, the PCRA court explained:

At trial the Commonwealth admitted evidence of certain 

weapons found at the residence of Jessica Soto, his 

girlfriend. Specifically, it was an AK-47 assault rifle, a 

banana clip, 357 Remington ammunition (which was the 

type used for the gun he possessed), and mail and 

photographs. Now, [Appellant] has proffered an affidavit 

that Jessica Soto claims the weapons were hers. However, 
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the affidavit also indicates that she was available to testify 

at trial but did not want to get involved. 

PCRA Court Opinion, 4/13/15, at 1. In addition, the PCRA court concluded, 

“even if [the weapons] were hers, and [Appellant] merely had access to 

them, [this fact] does nothing to add to his defense. [Appellant] was neither 

charged nor convicted of any weapons possession offenses[.]” Id. at 2.

Our review of the record supports the PCRA court’s conclusions, such 

that Appellant’s claims to the contrary are unavailing. At best, Ms. Soto’s 

affidavit represents a “newly willing” source of already known facts rather 

than “newly-discovered” evidence. See generally, Commonwealth v. 

Edmiston, 64 A.2d 339 (Pa. Super. 213); Commonwealth v. Marshall, 

947 A.2d 714 (Pa. 2008). Within his brief, Appellant asserts that because 

“Jessica Soto was unavailable at the time of trial, it was impossible for him 

to obtain these facts before he ultimately did.” Appellant’s Brief at 17. In 

support of this claim, Appellant cites to cases in which the witness had 

involved his Fifth Amendment right against self-incrimination. See id. 

However, there is no evidence to support Appellant’s claim that Ms. Soto 

invoked her Fifth Amendment right, and in fact, her own affidavit contradicts 

Appellant’s assertion.1 

____________________________________________

1 Appellant references the cross-examination testimony from his jury trial in 

which Detective Matthew Blake of the Lancaster City Police identified Ms. 

Soto as the woman depicted in a photograph with Appellant. N.T., 5/12/08, 

at 392. Detective Blake informed Appellant’s trial counsel that he believed 

(Footnote Continued Next Page)
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In sum, the PCRA court correctly determined that it lacked jurisdiction 

to consider Appellant’s untimely PCRA petition. We therefore affirm the 

PCRA court’s order denying Appellant post-conviction relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/24/2015

(Footnote Continued) _______________________

Ms. Soto pled guilty to possessing one of the weapons found in the 

apartment she shared with Appellant.