J-S08029-24

2024 PA Super 71

COMMONWEALTH OF PENNSYLVANIA

v.

CARLOS MANUEL BALESTIERMARRERO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 956 MDA 2023

Appeal from the PCRA Order Entered June 13, 2023

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

No(s): CP-06-CR-0003982-2017

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

OPINION BY MURRAY, J.: FILED APRIL 15, 2024

Carlos Manuel Balestier-Marrero (Appellant) appeals, pro se, from the 

order denying his first petition filed pursuant to the Post Conviction Relief Act 

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

In September 2017, the Commonwealth charged Appellant with, inter

alia, one count each of possession with intent to deliver a controlled substance

(PWID), conspiracy to commit PWID, criminal use of a communications facility, 

and corrupt organizations.1 Appellant’s case was consolidated with those of 

several co-defendants, including David Starke (Starke) and Eddie Ferrer 

(Ferrer). On December 10, 2018, Appellant pled guilty to the abovementioned

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* Former Justice specially assigned to the Superior Court.

1 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 903(a)(1), 7512(a), 911(b).
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offenses. The trial court immediately sentenced Appellant to serve an 

aggregate 10 to 20 years in prison. Appellant did not file post-sentence 

motions or a direct appeal.

On October 30, 2020, Appellant filed the instant pro se PCRA petition, 

his first. Appellant acknowledged the untimeliness of his petition but invoked 

the newly-discovered fact exception to the PCRA’s one-year filing 

requirement.

2 PCRA Petition, 10/30/20, ¶¶ 7-8; see also 42 Pa.C.S.A. § 

9545(b)(1)(ii). Appellant claimed, as the newly-discovered fact, a report

prepared by Daniel Rigmaiden on November 1, 2019 (Rigmaiden report), in 

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2 All PCRA petitions must be filed within one year of the date that the 

petitioner’s judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1);

see also id. § 9545(b)(3) (providing a judgment of sentence becomes final

“at the conclusion of direct review, including discretionary review in the ... 

Supreme Court of Pennsylvania, or at the expiration of time for seeking the 

review.”). Where a PCRA petitioner fails to file a timely petition, “neither this 

Court nor the trial court has jurisdiction over the petition.” Commonwealth 

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

Pennsylvania courts may consider an untimely petition if the appellant can 

explicitly plead and prove one of three exceptions (timeliness exceptions) set 

forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). See Commonwealth v. Spotz, 

171 A.3d 675, 678 (Pa. 2017) (stating a “PCRA petitioner bears the burden of 

proving the applicability of one of the [timeliness] exceptions.”). Instantly, 

Appellant claimed he met the newly-discovered fact exception, contained in 

Section 9545(b)(1)(ii), which we address below, as well as the “governmental 

interference exception” in Section 9545(b)(1)(i); the latter exception is not 

relevant to this appeal due to Appellant’s abandoning his claim invoking the 

exception.
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connection with Starke’s criminal case.

3 PCRA Petition, 10/30/20, Exh. A.4 As 

the PCRA court competently explained, 

In [the Rigmaiden] report, Mr. Rigmaiden concluded that the 

wiretap used by the police against [] Starke was illegal.5 The 

[Rigmaiden] report was given to [Appellant] by [] Starke on 

February 6, 2020[, nearly one year after the entry of Appellant’s 

guilty pleas]. Starke and [Appellant] were incarcerated together 

in the state correctional facility located in Benner Township, 

Pennsylvania [(SCI-Benner)]. After receiving the [Rigmaiden]

report from Starke, [Appellant filed his PCRA p]etition. It was filed 

on October 30, 2020. [Appellant] has never spoken to Mr. 

Rigmaiden. ... [Appellant’s] name is not mentioned in [the]

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3 See Commonwealth v. Starke, CP-06-CR-5166-2017 (Starke case). 

4 Appellant also attached to his PCRA petition an affidavit executed by Starke 

on August 16, 2020. PCRA Petition, 10/30/20, Exh. C (Starke stating, inter 

alia, he “shared with ... [Appellant] details of [Starke’s] research on [Starke’s]

case, which includes a report by [a] leading electronic surveillance expert in 

the County, Daniel Rigmaiden.”).

5 The PCRA court stated that in the Rigmaiden report, 

Mr. Rigmaiden concluded that 1) the search warrant affidavit in the 

Starke case did not explain how law enforcement learned of Starke’s 

name and home address or how Starke’s phone was found to be 

associated with his home address; 2) law enforcement’s explanation 

on how they learned of Starke being located at his home address was 

false; 3) law enforcement engaged in “parallel construction” to obtain 

information about Starke and his home address; and 4) law 

enforcement used a general warrant to track and locate Starke’s 

phone.

PCRA Court Order and Opinion, 6/13/23, at 5-6 (footnote omitted); see also

PCRA Petition, 10/30/20, Exh. A (Rigmaiden report). The PCRA court further 

opined, “Mr. Rigmaiden [] took steps to limit the dissemination and 

application of [the Rigmaiden] report to other cases or individuals. For 

example, he stated in his report that he only shared it with Starke and his 

defense attorney. He also warned that [the Rigmaiden] report should not be 

viewed by the public.” PCRA Court Order and Opinion, 6/13/23, at 7

(emphasis added).
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Rigmaiden[] report. [Appellant] cannot read or write.6 

[Appellant] was not aware that his phone was the subject of a 

wiretap or that [the Pennsylvania Superior Court had issued] an 

order permitting [Appellant] to be tracked by GPS [prior to his 

arrest,] until the day of the hearing [on Appellant’s PCRA petition

(PCRA hearing),] April 13, 2023. [Appellant] didn’t take any steps 

to investigate his case until he ran into Starke while in prison.

PCRA Court Order and Opinion, 6/13/23, at 2-3 (emphasis and footnotes

added; formatting modified); see also N.T., 4/13/23, at 5-17 (Appellant’s 

testimony at PCRA hearing).

In December 2021, the PCRA court appointed Douglas J. Waltman, 

Esquire (PCRA counsel), to represent Appellant in the PCRA proceedings. On 

January 13, 2022, PCRA counsel filed a “no merit” letter and a petition to 

withdraw as counsel, pursuant to Commonwealth v. Turner, 544 A.2d 927 

(Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). 

PCRA counsel asserted that Appellant’s PCRA petition was untimely and did 

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6 Ferrer assisted Appellant with the preparation of his pro se PCRA petition. 

See PCRA Court Order and Opinion, 6/13/23, at 3 (stating Appellant “worked 

on the petition with [] Ferrer,” whom Appellant encountered again while the 

men were incarcerated at SCI-Benner); see also id. at 6 (noting that 

“[Appellant’s] claims are identical to those raised by [] Ferrer before this 

[c]ourt and on appeal in Commonwealth v. Ferrer, [277 A.3d 1161,] 1068 

MDA 2021 ... (Pa. Super. April 26, 2022) [(unpublished memorandum)].”). 

The PCRA court adeptly addressed this Court’s holding in Ferrer in its opinion

issued in connection with the order denying Appellant’s PCRA petition. See

PCRA Court Order and Opinion, 6/13/23, at 9; see also Ferrer, 277 A.3d

1161 (unpublished memorandum at 7-8) (reversing PCRA court’s order 

dismissing Ferrer’s PCRA petition as untimely, and remanding for an 

evidentiary hearing, where the PCRA court erred in concluding that Ferrer 

failed to satisfy the requirements of the newly-discovered fact timeliness 

exception).
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not satisfy any of the timeliness exceptions. No-Merit Letter, 1/13/22, at 1. 

PCRA counsel stated he (1) “reviewed the Rigmaiden Report attached to the 

PCRA” petition; (2) “investigated [] Starke’s prosecution” in the Starke case; 

and (3) concluded from PCRA counsel’s review of the record that “[t]here is 

nothing ... to support [Appellant’s] claims for relief.” Id. at 4 (quotation marks 

omitted). 

The PCRA court denied PCRA counsel’s petition to withdraw without 

prejudice on May 18, 2022, and directed counsel to file an amended PCRA 

filing limited to the issue of whether Appellant met the newly-discovered fact 

exception. Two days later, PCRA counsel filed an “Amended Petition Limited 

to Addressing Timeliness,” contemporaneously with an amended no-merit 

letter and petition to withdraw. PCRA counsel opined, in relevant part, that 

the Rigmaiden report 

is not a “fact” within the legal context of [section] 9545(b)(1)(ii), 

[as] it is an opinion; therefore, [Appellant] has not alleged and 

cannot prove 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.”

Amended Petition, 5/20/22, ¶ 10 (quoting 42 Pa.C.S.A. § 9545(b)(1)(ii)); see 

also id. ¶¶ 11-13 (claiming in the alternative that if the Rigmaiden report

constitutes a new fact, the PCRA court should hold an evidentiary hearing to 

develop the record).

The matter proceeded to the April 13, 2023, PCRA hearing, where 

Appellant appeared as the only witness. Appellant testified about the 
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Rigmaiden report and when he first learned of it from Starke. See N.T., 

4/13/23, at 5-9, 14-16.

The PCRA court denied Appellant’s PCRA petition on June 13, 2023. Two 

days later, the PCRA court entered an order granting PCRA counsel’s petition 

to withdraw. Appellant timely filed a pro se notice of appeal on June 30, 2023.

Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

Appellant presents a single issue for review:

Whether the PCRA court erred by failing to consider whether 

Appellant[’]s petition and the [Rigmaiden] report provided to the 

court satisfied the newly discovered fact exception?

Appellant’s Brief at 6 (emphasis modified).

When reviewing an order denying a PCRA petition, we examine whether 

the determination of the PCRA court is supported by the record and free of 

legal error. Commonwealth v. Drummond, 285 A.3d 625, 633 (Pa. 2022). 

We “consider the record in the light most favorable to the prevailing party at 

the PCRA level,” and “grant great deference to the PCRA court’s findings that 

are supported in the record.” Commonwealth v. Diaz, 183 A.3d 417, 421 

(Pa. Super. 2018) (citations omitted). 

Here, Appellant concedes his PCRA petition is facially untimely, as he 

filed it nearly two years after his judgment of sentence became final. 

Appellant’s Brief at 8; see also 42 Pa.C.S.A. § 9545(b)(1) (all PCRA petitions 

must be filed within one year of the date the judgment of sentence becomes 

final). However, Pennsylvania courts may consider an untimely petition if the 
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appellant can explicitly plead and prove one of three timeliness exceptions in 

Section 9545(b)(1)(i)-(iii). Any PCRA petition invoking one of the timeliness

exceptions must also establish that the petitioner invoked the exception within 

one year of the date the claim could have been first presented. Id. § 

9545(b)(2).

Appellant invokes the newly-discovered fact exception set forth in 

Section 9545(b)(1)(ii); this exception

requires a petitioner to demonstrate he did not know the facts 

upon which he based his petition and could not have learned those 

facts earlier by the exercise of due diligence. Due diligence 

demands that the petitioner take reasonable steps to protect his

own interests. A petitioner must explain why he could not have 

learned the new fact(s) earlier with the exercise of due diligence. 

This rule is strictly enforced. Additionally, the focus of this 

exception is on the newly discovered facts, not on a newly 

discovered or newly willing source for previously known facts.

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015) (citations 

and quotation marks omitted); see also Commonwealth v. Burton, 121 

A.3d 1063, 1071 (Pa. Super. 2015) (en banc) (stating that “due diligence 

requires neither 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.”). “[T]he analysis 

of whether a PCRA petitioner has satisfied the [Section] 9545(b)(1)(ii) timebar exception is analytically distinct from the merits of any substantive claim 

seeking relief.” Commonwealth v. Robinson, 185 A.3d 1055, 1059 (Pa. 

Super. 2018) (en banc).
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Appellant claims he pled and proved the requirements of the newlydiscovered fact exception based on the Rigmaiden report. See Appellant’s 

Brief at 8-16. According to Appellant, “the Rigmaiden report showed that[]

members of the Berks County Police Department and other investigatory 

agencies, ‘used unconstitutional means’ to intercept non-specific cell phones 

and location data....” Id. at 8. Appellant claims that he exercised due 

diligence in discovering the Rigmaiden report and timely invoked it in 

connection with the newly-discovered fact exception, within the one-year 

requirement of Section 9545(b)(2). Id. at 9, 12. Appellant further contends

that because

Appellant’s co-defendant [(i.e., Ferrer)] obtained relief, Appellant 

should be afforded the same. [See], e.g., Commonwealth v.

Cruz, 851[] A.2[d] 870 (Pa. Super. 2004) (post-conviction 

petitioner granted collateral relief based on materially identical 

claim).

Id. at 16 (capitalization modified); see also Ferrer, 277 A.3d 1161 

(unpublished memorandum at 8-9).

The Commonwealth counters the PCRA court properly ruled that it 

lacked jurisdiction to consider the merits of Appellant’s untimely PCRA 

petition, where Appellant failed to plead and prove the newly-discovered fact 

exception. See Commonwealth Brief at 11-13. The Commonwealth claims 

that “the allegations and speculation of the Rigmaiden report are not ‘facts’ as 

applied to Appellant,” where

[u]nlike Ferrer and Starke[,] who were not subjects of actual 

[wiretap] interceptions, [Appellant] was the subject of a wiretap 
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interception signed by a Superior Court Judge. Thus, Rigmaiden’s 

general thesis from the [Rigmaiden] report ... does not apply to 

[Appellant].

Id. at 10, 11; see also id. at 11 (arguing “Appellant is not similarly situated 

to Ferrer[,] ... based upon the simple fact that a wiretap authorization 

existed[,] where one did not exist against Ferrer or Starke.”). The 

Commonwealth further argues that even if Appellant did not know of the 

Rigmaiden report until recently, he failed to explain how, with the exercise of 

due diligence, he could not have discovered it sooner. Id. at 12 (pointing out 

that Appellant, “as well as Ferrer and Starke, were all co-defendants who were 

prosecuted as part of a larger wiretap investigation”; therefore, “the discovery 

for both cases was the same. Because the Rigmaiden report analyzed the 

available discovery to reach [its] conclusions, [Appellant] could easily have

done so if he had hired his own expert prior to his guilty plea.”). We agree.

As the PCRA court reasoned,

[Appellant’s] claim that he has discovered newly-discovered facts 

is based on a report that was prepared for a separate individual, 

Starke, in a separate case almost a year after [Appellant] entered 

his guilty plea. ... [The] Rigmaiden[] report was narrowly tailored 

to address the issues faced by Starke, and only Starke, in his 

criminal matter. [Appellant] has not established that he has 

discovered new facts in his case. Instead, as discussed by [PCRA 

counsel] in his no-merit letter, [Appellant] wishes to engage in 

discovery to search for new facts that could possibly establish that 

law enforcement committed certain violations during their 

investigation into [Appellant]. [Appellant’s] claim is based upon 

pure speculation. Therefore, this [c]ourt finds that [Appellant] 

has failed to satisfy the newly-discovered fact exception to the 

PCRA’s one-year filing deadline.

PCRA Court Order and Opinion, 6/13/23, at 9-10 (emphasis in original). 
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Our review confirms that the PCRA court’s foregoing reasoning is amply 

supported by the record and the law. See id. Further, as Appellant is not 

similarly situated to either Starke or Ferrer, his reliance upon Cruz, supra, is 

misplaced. Thus, the PCRA court properly concluded that it lacked jurisdiction 

to consider the merits of Appellant’s untimely PCRA petition, as Appellant

failed to plead and prove any timeliness exception. See id. Appellant’s issue 

does not merit relief.

Appellant advances an additional issue in the argument section of his 

brief: the ineffectiveness of PCRA counsel.

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 See Appellant’s Brief at 16-19. 

Appellant claims PCRA counsel rendered ineffective assistance by failing to 

claim trial counsel’s ineffectiveness. Id. at 16. Appellant asserts trial counsel 

improperly “fail[ed] to investigate exculpatory evidence and to put the 

Commonwealth’s case to adversarial testing[.]” Id. (capitalization modified). 

Appellant invokes Commonwealth v. Bradley, 261 A.3d 381, 401 (Pa. 2021) 

(holding “a PCRA petitioner may, after a PCRA court denies relief, and after 

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7 Appellant did not include this issue in his brief’s statement of questions. See

Appellant’s Brief at 6. Pursuant to our Rules of Appellate Procedure, “[n]o 

question will be considered unless it is stated in the statement of questions 

involved or is fairly suggested thereby.” Pa.R.A.P. 2116(a). Nevertheless, we 

decline to find waiver, where Appellant is proceeding pro se and raised this 

issue in his Pa.R.A.P. 1925(b) concise statement. See Commonwealth v. 

Blakeney, 108 A.3d 739, 766 (Pa. 2014) (stating appellate courts “may 

liberally construe materials filed by a pro se litigant”); Pa.R.A.P. 105(a) 

(providing the Rules of Appellate Procedure shall be liberally construed); but 

see also Blakeney, 108 A.3d at 766 (“pro se status confers no special benefit 

upon a litigant”).
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obtaining new counsel or acting pro se, raise claims of PCRA counsel’s 

ineffectiveness at the first opportunity to do so, even if on appeal.”). Id. at 

17.

This Court has explained that “Bradley does not provide an exception 

to the PCRA’s time bar....” Commonwealth v. Stahl, 292 A.3d 1130, 1136 

(Pa. Super. 2023); see also id. at 1134 (“Ineffectiveness of PCRA counsel 

that does not wholly deprive the defendant of collateral or appellate review 

does not satisfy” any of the timeliness exceptions); Commonwealth v. 

Pridgen, 305 A.3d 97, 102 (Pa. Super. 2023) (collecting unpublished 

memorandum decisions declining to extend Bradley to cases involving 

untimely PCRA petitions). 

Here, as explained above, Appellant’s PCRA petition is untimely and fails 

to meet any timeliness exception. See PCRA Court Opinion, 9/25/23, at 4 

(stating Appellant is not entitled to relief on his claim of PCRA counsel’s 

ineffectiveness, where “before [PCRA counsel] could have raised any of 

[Appellant’s] underlying claims, one of the timeliness exceptions must have 

been met.”). Furthermore, Appellant fails to develop his bald claim of trial 

counsel’s ineffectiveness, or identify the purportedly exculpatory evidence 

that trial counsel should have discovered. Thus, this claim is waived. See,

e.g., Commonwealth v. Armolt, 294 A.3d 364, 379 (Pa. 2023) (holding, 

“mere issue spotting without sufficient analysis or legal support precludes 

appellate review” and results in waiver); see also Commonwealth v. 
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Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007) (en banc) (appellate courts 

will not act as counsel and develop an argument for the appellant or scour the 

record to find evidence to support an argument).

Based on the foregoing, we affirm the PCRA court’s order denying 

Appellant’s untimely PCRA petition. Further, we deny as moot Appellant’s pro 

se filing in this Court, entered March 15, 2024, seeking an extension of time 

in which to file a reply brief.

Order affirmed. Petition for Extension of Time to File Reply Brief denied.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 04/15/2024