J-S11021-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

FRANCISCO PEREZ

Appellant No. 1394 MDA 2014

Appeal from the PCRA Order July 25, 2014

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0003313-2000

_____________________________________________________________

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

FRANCISCO PEREZ

Appellant No. 1395 MDA 2014

Appeal from the PCRA Order July 25, 2014

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0003314-2000

BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.: FILED JUNE 02, 2015

Francisco Perez appeals pro se from the consolidated order entered in 

the Berks County Court of Common Pleas, dated July 25, 2014, dismissing 
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his serial petition filed under the Post-Conviction Relief Act (“PCRA”)1as 

untimely.2 Perez seeks relief from the judgment of sentence of an aggregate 

341⁄2 to 73 years’ imprisonment imposed on March 15, 2001, following his 

jury conviction for numerous crimes, including attempted first-degree 

murder and four counts of aggravated assault.3 Because we agree the 

petition is untimely, we affirm. 

Perez’s convictions for attempted murder and related offenses arose 

from the shooting of a man who had stolen from him a large sum of cash 

that was intended for purchasing drugs. The PCRA court set forth the 

relevant procedural history as follows:

Following a jury trial held March 13, 2001, through March 

15, 2001, [Perez] was found guilty under Docket No. 3313-2000 

of one (1) count of Attempted First Degree Murder,1four (4) 

counts of Aggravated Assault,2one (1) count of Firearms Not to 

be Carried Without a License,3two (2) counts of Recklessly 

Endangering Another Person,4four (4) counts of Simple Assault,5

and one (1) count of Possession of a Weapon.6 The Court also 

found [Perez] guilty of one (1) count of Persons Not to Possess 

or Use Firearms.7 Under Docket No. 3314-2000,8the Court 

found [Perez] guilty of one (1) count [of] Terroristic Threats9and 

one (1) count of Flight to Avoid Apprehension, Trial or 

Punishment.10

1

 18 [PA.C.S.] § 901(a), 2502(a).

____________________________________________

1

 42 Pa.C.S. §§ 9541-9546.

2

 As will be discussed in more detail in the factual history, we note the two 

matters were tried together, and the PCRA court disposed of them in one 

order.

3

 18 Pa.C.S. §§ 901(a), 2502(a), 2702(a)(1), (4), respectively.
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2

 18 [PA.C.S.] § 2702(a)(1), (4)[.]

3

 18 [PA.C.S.] § 6106(a).

4

 18 [PA.C.S.] § 2705.

5

 18 [PA.C.S.] § 2701(a)(1), (3).

6

 18 [PA.C.S.] § 907(b).

7

 18 [PA.C.S.] § 6105(a). This count was severed prior to 

the start of the jury trial and decided by the Court after 

[Perez] waived his right to a jury trial on this charge.

8 The Court also found [Perez] guilty of one (1) count of 

Possession with Intent to Deliver a Controlled Substance, 

35 P.S. § 780-113(a)(30), and one (1) count of Possession 

of a Controlled Substance, 35 P.S. § 780-113(a)(16). 

However, these charges were later nolle prossed by the 

Commonwealth on February 18, 2004.

9

 18 [PA.C.S.] § 2706(a).

10

 18 [PA.C.S.] § 5126(a).

[Perez] was sentenced to an aggregate term of thirty-four 

and a half (341⁄2) to seventy-three (73) years of incarceration. 

Specifically, [Perez] was sentenced to serve no less than twenty 

(20) to no more than forty (40) years on the Attempted First 

Degree Murder count. [Perez] was also ordered to serve a 

consecutive term of no less than seven and a half (71⁄2) to no 

more than fifteen (15) years on one of the Aggravated Assault 

counts. Additionally, [Perez] was sentenced to serve no less 

than one (1) to no more than three (3) years on the Firearms 

Not to be Carried Without a License and Possession of a Weapon 

counts. These sentences were ordered to be served concurrently 

with the sentence imposed on the Aggravated Assault count. 

[Perez] was sentenced to an additional five (5) to ten (10) years 

on the Persons Not to Possess or Use Firearms count. Under 

Docket No. 3314-2000, [Perez] was ordered to serve no less 

than one (1) to no more than five (5) years on the Terroristic 

Threats count. This sentence is to be completed at the 

expiration of the sentence imposed on the Persons Not to 
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Possess or Use Firearms conviction. Lastly, [Perez] was 

sentenced to serve a consecutive one (1) to three (3) years on 

the Flight to Avoid Apprehension, Trial or Punishment count. 

[Perez] was represented at trial and sentencing by William 

Bispels, Esquire.

On April 12, 2001, [Perez] filed a pro se Notice of Appeal, 

and the Court appointed Gail Chiodo, Esquire, on May 1, 2001, 

to represent [Perez] in the pursuit of a direct appeal. The 

Pennsylvania Superior Court affirmed [Perez]’s judgment of 

sentence by Memorandum dated October 3, 2002.11

11

 The Superior Court vacated [Perez]’s drug-related 

convictions on jurisdictional grounds. The Commonwealth 

filed [a] Petition for Allowance of Appeal (“PAA”) in the 

Pennsylvania Supreme Court on November 1, 2002. The 

Supreme Court granted the Commonwealth’s PAA on 

December 2, 2003, and reversed the Superior Court’s 

order as it related to the drug-related convictions. 

Because the Commonwealth later decided to nolle pross

[Perez]’s drug-related charges, this has no bearing on the 

present PCRA petition. [Perez also filed a PAA, which the 

Supreme Court denied on December 2, 2003].

PCRA Court Opinion, 6/26/2014, at 1-3. 

Since then, Perez has filed five petitions under the PCRA.4 None of 

these petitions has provided Perez any relief.5 Perez filed the present pro se

PCRA petition, his sixth, on April 28, 2014. After determining that the 

petition was untimely, the PCRA court notified Perez of its intent to dismiss 

____________________________________________

4

 See PCRA Court Opinion, 6/26/2014, at 3 (chart).

5

 In his most recent appeal, a panel of this Court affirmed the dismissal of 

Perez’s fifth petition for relief because it was untimely and he failed to allege 

any exception to the time limitation of the PCRA. See Commonwealth v. 

Perez, 55 A.3d 124 [34 MDA 2012] (Pa. Super. 2012) (unpublished 

memorandum), appeal denied, 57 A.3d 69 (Pa. 2012), cert. denied, 133 S. 

Ct. 1728 (U.S. 2013).
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the petition without a hearing on June 26, 2014. See Pa.R.Crim.P. 907. 

Perez filed a response to the Rule 907 notice on July 21, 2014. On July 25, 

2014, after considering Perez’s response, the PCRA court dismissed his 

petition. This pro se appeal followed.6

“Crucial to the determination of any PCRA appeal is the timeliness of 

the underlying petition. Thus, we must first determine whether the instant 

PCRA petition was timely filed.” Commonwealth v. Smith, 35 A.3d 766,

768 (Pa. Super. 2011), appeal denied, 53 A.3d 757 (Pa. 2012).

The PCRA timeliness requirement ... is mandatory and 

jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d 

1035, 1038 (Pa. Super. 2007), appeal denied, 597 Pa. 715, 951 

A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa. 

1, 753 A.2d 201, 203 (2000)). The court cannot ignore a 

petition’s untimeliness and reach the merits of the petition. Id.

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013). A PCRA 

petition must be filed within one year of the date the underlying judgment 

becomes final. 42 Pa.C.S. § 9545(b)(1). 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 review.” 42 Pa.C.S. § 9545(b)(3). Here, our 

review of the record reveals the Pennsylvania Supreme Court denied Perez’s 

____________________________________________

6

 On August 21, 2014, the PCRA court ordered Perez to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

Perez filed a concise statement on September 8, 2014. The PCRA court 

issued an opinion pursuant to Pa.R.A.P. 1925(a) on September 11, 2014, 

adopting its June 26, 2014, opinion.
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PAA on December 2, 2003. See Commonwealth v. Perez, 839 A.2d 351

(Pa. 2003) (per curiam). Therefore, Perez’s judgment of sentence became 

final on March 2, 2004, 90 days after the Pennsylvania Supreme Court 

denied his petition for allowance of appeal and the time for filing a petition 

for review with the United States Supreme Court expired. See 42 Pa.C.S. § 

9545(b)(3); U.S.Sup.Ct.R. 13. As such, any PCRA petition had to be filed by 

March 2, 2005. Perez did not file the present PCRA petition until April 28, 

2013. Accordingly, Perez’s petition is patently untimely.

Nevertheless, an untimely PCRA petition may be considered if one of 

the following three 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. § 9545(b)(1)(i-iii). Furthermore, a PCRA petition alleging any of 

the exceptions under Section 9545(b)(1) must be filed within 60 days of 

when the PCRA claim could have first been brought. 42 Pa.C.S. § 

9545(b)(2).
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The timeliness exception set forth in Section 9545(b)(1)(ii) 

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. 

Commonwealth v. Bennett, 593 Pa. 382, 395, 930 A.2d 1264, 

1271 (2007). Due diligence demands that the petitioner take 

reasonable steps to protect his own interests. Commonwealth 

v. Carr, 768 A.2d 1164, 1168 (Pa. Super. 2001). A petitioner 

must explain why he could not have learned the new fact(s) 

earlier with the exercise of due diligence. Commonwealth v. 

Breakiron, 566 Pa. 323, 330–31, 781 A.2d 94, 98 (2001); 

Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 

2010), appeal denied, 610 Pa. 607, 20 A.3d 1210 (2011). This 

rule is strictly enforced. Id. 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. Marshall, 596 Pa. 587, 596, 947 A.2d 714, 

720 (2008) (emphasis in original).

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

In his sole issue on appeal, Perez argues the PCRA court erred in 

dismissing his petition without conducting a hearing because his argument 

meets the exception found in Section 9545(b)(1)(ii) regarding newlydiscovered facts.. Specifically, Perez contends that in February 2014, he reestablished contact with Ivette Cepeda, his girlfriend at the time of trial, and 

she informed him that, while in the courtroom prior to the commencement of 

his 2001 trial, one of the victims, Herbert Deibert, admitted to Cepeda that 

he did not recognize Perez and then left the courtroom with the prosecuting 

officers. See Perez’s Brief at 8-11. Perez avers “Cepeda’s affidavit raises a 

genuine issue of material fact with respect to whether Herbert Diebert’s 

identification of [Perez] was the result of police misconduct, i.e., Michael 

Gombar and Christopher Santoro of the Reading Police Department, who 
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influenced Diebert’s testimony in favor of guilt by directly identifying [Perez] 

for Diebert.” Id. at 11. Perez alleges that although Cepeda was his 

girlfriend at the time, she did not convey this information to him, and that as 

soon as he was convicted, Cepeda disappeared and it took him over a 

decade to find her. Id. at 8. Moreover, he states he had no knowledge that 

she knew such information and he was only trying to locate her because of 

the child that they shared. Id.

Here, the PCRA court found the following:

Without addressing the credibility of Ms. Cepeda’s new 

statement, the Court believes that these facts could have been 

ascertained earlier by the exercise of due diligence. Since the 

time that Ms. Cepeda allegedly spoke with the victim in the 

courtroom, [Perez] has previously been represented by trial 

counsel, appellate counsel and PCRA counsel. If this claim had 

previously been presented, counsel could have searched for Ms. 

Cepeda on [Perez]’s behalf. Furthermore, as Ms. Cepeda was 

[Perez]’s girlfriend at the time of trial, [Perez] probably knew 

how to get into contact with her. It is not a reasonable 

assumption that Ms. Cep[e]da would attend [Perez]’s trial, while 

she was still his girlfriend, learn that the victim could not identify 

him, and not share this information with [Perez] or his counsel. 

It has been more than thirteen (13) years since [Perez]’s trial. 

While the Court recognizes that [Perez] has been incarcerated 

since that time, [Perez] has not shown that he took any actions 

to learn these facts earlier than 2014. This inaction is 

particularly concerning based on the fact that [Perez] has 

previously contested his identification. [Perez] has not shown 

that he could not have ascertained these facts earlier by the 

exercise of due diligence. Therefore, the Court does not believe 

that the § 9545(b)(1)(ii) exception excuses the untimely filing of 

[Perez]’s PCRA petition.

PCRA Court Opinion, 6/26/2014, at 7-8.
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We agree with the court’s analysis. Moreover, of significance, we are 

guided by the following: “[A] claim based on inadmissible hearsay does not 

implicate” the Section 9545(b)(1)(ii) exception. Commonwealth v. AbuJamal, 941 A.2d 1263, 1269 (Pa. 2008), cert. denied, 555 U.S. 916 (2008).

In Abu-Jamal, the defendant filed an untimely PCRA petition, in which 

he attempted to invoke the Section 9545(b)(1)(ii) exception. In his petition, 

the defendant asserted he received new evidence that a vital Commonwealth 

witness, Priscilla Durham, had recanted her trial testimony implicating him in 

the criminal acts. To meet this burden, the defendant presented a 

declaration by his fellow inmate, Kenneth Pate, who stated he had a phone 

conversation with Durham, during which she admitted police had directed 

her to falsely testify she heard the defendant confess to the crimes. The 

PCRA court dismissed the petition as untimely, and the defendant then 

appealed directly to the Pennsylvania Supreme Court because he had been 

sentenced to death.7 

In concluding the PCRA court properly found the defendant’s petition 

was untimely and did not fall under the Section 9545(b)(1)(ii) exception, the 

Supreme Court opined, in pertinent part:

[The defendant] offers no explanation as to why Pate, who 

asserted he was aware of Durham’s alleged perjury in 1984, did 

not come forward with this information until nearly 20 years 

later. Thus, we cannot say [the defendant] raised his issues 

____________________________________________

7

 See 42 Pa.C.S. § 9546(d).
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regarding the applicability of [Section 9545(b)(1)(ii)] in a timely 

manner[.]

...

Because Pate’s testimony concerned an out-of-court statement 

by Durham relied upon for its truth, it was hearsay. See Pa.R.E. 

801(c) (hearsay is statement, other than one made by declarant 

while testifying at trial, offered in evidence to prove truth of 

matter asserted). [The defendant] contends Durham’s 

statement to Pate was a statement against interest and is 

admissible under the hearsay exception in Pa.R.E. 804(b)(3). 

However, for this exception to apply, the declarant must be 

unavailable as a witness, see Pa.R.E. 804(b), and [the 

defendant] offers no proof Durham is not available. Therefore, 

Pate’s declaration was inadmissible hearsay and does not fall 

under § 9545(b)(1)(ii)’s timeliness exception.

Abu-Jamal, 941 A.2d at 1269-1270.

Turning to the present matter, we find that Abu-Jamal is substantially 

similar to this case. Perez attempts to invoke the “new facts” exceptions by 

claiming that Deibert gave a statement to Cepeda prior to Perez’s trial, in 

which he apparently admitted that he did not recognize Perez,8and since 

Cepeda disappeared directly after his trial, Perez avers he was not aware of 

and he could not have discovered this information earlier with the exercise 

of due diligence. Because Cepeda’s affidavit concerned an out-of-court 

statement by Deibert relied upon for its truth, it is hearsay. However, Perez 

only presents Cepeda’s statements, without any proof that Deibert (the 

declarant) is not available. See Pa.R.E. 804(b)(3). Likewise, he does not 

____________________________________________

8

 See Affidavit of Ivette Cepeda, 2/28/2014.
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offer any corroborating evidence to indicate the trustworthiness of Deibert’s 

statement. See Pa.R.E. 804(b)(3)(B). Furthermore, as indicated by the 

PCRA court, Perez does not explain why Cepeda, who was apparently aware 

of this falsification in 2001, did not come forward with this information until 

over 13 years later. As such, Cepeda’s affidavit fails to satisfy the hearsay 

exception set forth in Rule 804(b)(3). Accordingly, Perez’s present PCRA 

petition is based on inadmissible hearsay that cannot satisfy the “new facts” 

timeliness exception pursuant to Section 9545(b)(1)(ii). See Abu-Jamal, 

supra. Therefore, the PCRA court properly denied his petition, and we 

affirm its July 25, 2014, order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/2/2015