PCRA timeliness exception at 42 Pa.C.S. § 9545(b)(ii) requires a petitioner to “demonstrate [that] 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”
How later courts described this case
- PCRA timeliness exception at 42 Pa.C.S. § 9545(b)(ii) requires a petitioner to “demonstrate [that] 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”
- Section 9545(b) “speaks in singular terms of ‘the claim’ or ‘the right’ which is the subject of a serial PCRA ‘petition’” and, as such, the time-bar exceptions “are claim specific”
- “a collateral petition to enforce a plea agreement is regularly treated as outside the ambit of the PCRA and under the contractual theory of specific performance”
- “Appellant’s claim of trial court error … is both waived and not cognizable under the PCRA because it could have been raised on direct appeal.”
Written by the judges who cited it.
The opinion
J-S30045-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NOEL GARCIA :
:
Appellant : No. 3101 EDA 2024
Appeal from the PCRA Order Entered November 7, 2024
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010672-2007
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NOEL GARCIA :
:
Appellant : No. 3102 EDA 2024
Appeal from the PCRA Order Entered November 7, 2024
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010740-2007
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NOEL GARCIA :
:
Appellant : No. 3103 EDA 2024
Appeal from the PCRA Order Entered November 7, 2024
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004348-2008
J-S30045-25
BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E. *
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 12, 2025
Appellant, Noel Garcia, appeals from the order of the Court of Common
Pleas of Philadelphia County that dismissed as untimely his second petition
filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541, et
seq. He claims, inter alia, that the PCRA court erred by denying his petition
as untimely because he asserted a newly-discovered fact as an exception to
the PCRA’s time-bar based on his supposed discovery in 2022 that his 2009
agreement to an aggregate imprisonment term in connection with his
negotiated guilty pleas in the instant cases would cause deferred service of a
probationary sentence in an unrelated case. He also challenges an order of
restitution. We find that the PCRA court properly dismissed as unreviewable
five of Appellant’s six claims but conclude that the claim challenging the
restitution order was improperly rejected as time-barred under the PCRA. We
remand for further proceedings concerning the restitution claim without
prejudice to Appellant’s ability to pursue a plea enforcement motion
concerning his first issue below.
At his guilty plea hearing, Appellant accepted the following summary of
the facts underlying his convictions:
[O]n September [24], 2006[,] in the morning hours, [Appellant]
drove his rental car, a green Dodge Stratus with Virginia tags from
[the] Frankford [neighborhood] to the Strawberry Mansion area in
the City and County of Philadelphia.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
-2-
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In the car with [Appellant] on that morning were Jeremiah Battle
and Calvin Caldwell. [Appellant] traveled to the Strawberry
Mansion area with the intent of looking for Jacob Moses and other
[“]33rd Street[”] men to avenge the Friday night shooting of
[Appellant’s] friend, Anthony Brown.
[Appellant] turned his car onto the 2500 block of Spangler Street
in Philadelphia and on that street was Michael Seeney with two
other men, Michael Seeney being a [“]33 rd Street guy.[”]
[Appellant] fired one shot from his .40[-]caliber weapon across
the passenger and out the passenger window. A single shot went
off and the gun jammed. That shot grazed Michael Seeney’s hip.
[Appellant] pulled off.
About ten minutes later, [Appellant] was still driving in the area,
still with Jeremiah Battle and Calvin Caldwell. Also in the car was
Rasheed Brown. [Appellant] pulled onto Huntingdon Street. At
the same time, Alisha Corley was driving her cousin’s white
Oldsmobile.
In her car was her sister, Ashley Corley, her godsister, Tynah
Green, her [one]-year-old son, [R.B.], and her [five]-year-old
daughter, Cashae Rivers.
Miss Corley was driving to the detail shop on 34 th and Huntingdon
to have her cousin’s car fixed. She had to pull around the block
to do so and as she pulled in front of the detail shop on 34 th Street,
[Appellant] fired nine shots from the same .40[-]caliber weapon
into the back of Alisha’s car[.]
Four of those bullets entered the car and one of them went
through the backseat into the back of [five]-year-old Cashae
Rivers. That shooting was witnessed by members of [Appellant’s]
vehicle, Jeremiah Battle, Rasheed Brown[,] and Calvin Caldwell.
[Appellant] drove off and made his way back to Frankford onto
Lescher Street and later that same afternoon[,] after [Appellant]
had found out that his 34th and Huntingdon shooting resulted in
the death of a little girl, he met with his friend, Ronald Newton.
Ronald Newton and [Appellant] decided to go out and shoot Jason
Couch. Mr. Couch was another [“]33 rd Street guy[”] and also a
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witness in an open homicide case where [Appellant’s] friend was
charged.
[Appellant] had already disposed of the murder weapon, the .40[-
]caliber used to shoot both at Spangler Street and 34 th and
Huntingdon. They needed a new weapon.
Mr. Newton and [Appellant] drove to North Philadelphia onto
Myrtlewood Street and picked up a third man, Anthony Brown, the
same man who had been shot that Friday night. Mr. Brown
provided the weapon, a new .40[-]caliber gun.
The three men drove to Colorado and Cumberland in the City and
County of Philadelphia. On Colorado Street, they saw Jason Couch
standing with other people. They fired five shots at Jason Couch
missing Mr. Couch but hitting a [forty-nine]-year-old woman
named Virginia Bing, striking her in the lower right leg and
shooting then [fifteen]-year-old [C.I.] [C.I.] was shot in the
stomach and received extensive medical work as a result of that.
He had a colostomy bag and a lower bowel resection and was in
the hospital and rehabilitating for quite a period of time.
The Commonwealth would [] call[, as a witness,] Carl Rone who
is a firearms examiner with the City and County of Philadelphia
and an expert in the area of ballistics and firearms examination,
and he would testify that the nine shell casings that were
recovered from 34th and Huntingdon and the one shell casing that
was recovered from the 2500 block of Spangler Street were, in
fact, fired from the same .40[-]caliber semi-automatic weapon.
The five fired cartridge casings that were recovered from the
scene at the Colorado and Cumberland shooting, which occurred
[…] at 4:10 [p.m.], were also .40 caliber but were from a different
weapon than the first two shootings.
[The Commonwealth] would also mark as [Exhibit] C-1,
[Appellant’s] certificate of non-licensure[,] which sa[id] that he
was not eligible to carry a firearm in the City and County of
Philadelphia on the date of the shooting[s.]
***
Finally, […] the Commonwealth would call the Medical Examiner,
Dr. Ian Hood, the Deputy Medical Examiner in the City and County
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of Philadelphia at the time of th[e] murder. He is an expert in the
area of forensic pathology and he would testify that he performed
the autopsy on Cashae Rivers.
Cashae [Rivers] at the time of [her] death was [five] years old,
[an] African-American female, [three] feet, [nine] inches tall, and
[forty-seven] pounds. [Dr. Hood] would testify that the evidence
of injury to [Cashae Rivers] was a single distance range gunshot
wound to the back, no soot or gunpowder[,] and the projectile
was recovered from the body. The cause of death [was] a single
gunshot wound to the back and [Dr. Hood] would testify that the
manner of death was homicide and both of those opinions would
be rendered to a reasonable degree of medical certainty.
N.T. Trial/Guilty Plea Hearing, 6/10/09, 48-55.
On June 8-9, 2009, the parties began selecting a jury for a capital trial.
See N.T. 6/8/09, 15 (trial judge noting, in introductory voir dire remarks to
the jury, that “this case may involve the death penalty”). On the third day of
voir dire, June 10, 2009, Appellant elected to forgo the jury selection process
and entered negotiated guilty pleas in each of the underlying criminal matters.
See N.T. Trial/Guilty Plea Hearing, 6/10/09, 32-60. He pleaded guilty to: (1)
murder of the third degree, aggravated assault, carrying a firearm without a
license, and possessing an instrument of crime at CP-51-CR-0010672-2007;1
(2) four counts of recklessly endangering another person at CP-51-CR-
0010740-2007;2 and (3) two counts of aggravated assault and a single count
____________________________________________
1 18 Pa.C.S. §§ 2502(c), 2702(a), 6106(a)(1), and 907(a), respectively.
These charges encompassed the shootings resulting in the murder of Cashae
Rivers and the aggravated assault on Michael Seeney. See N.T. Trial/Guilty
Plea Hearing, 6/10/09, 47.
2 18 Pa.C.S. § 2705. The charges in this case arose from the same incidents
with respect to the charges at CP-51-CR-0010672-2007, and these charges
(Footnote Continued Next Page)
-5-
J-S30045-25
each of attempted murder, conspiracy to commit murder, carrying a firearm
without a license, and possessing an instrument of crime at CP-51-CR-
0004348-2008.3 See id. at 41-43, 55-60.
In exchange for the guilty pleas, the Commonwealth agreed to
recommend an aggregate sentencing scheme of twenty-two to forty-five
years’ imprisonment, to be served concurrently with a sentence that Appellant
was already serving in an unrelated case, and nolle prosse all remaining
charges in the three instant cases.4 See Written Guilty Plea Colloquy (CP-51-
CR-0010672-2007), 6/10/09 1; Written Guilty Plea Colloquy (CP-51-CR-
0010740-2007), 6/10/09, 1; Written Guilty Plea Colloquy (CP-51-CR-
0004348-2008), 6/10/09, 1; see also N.T. Trial/Guilty Plea Hearing, 6/10/09,
36, 43-44, 71. On the same date, the plea court imposed the agreed-upon
sentence and entered an order for restitution in the amount of $6,900. See
____________________________________________
involved the other persons in the car with Cashae Rivers. See N.T. Trial,
6/8/09, 7 (Prosecutor: “Those [charges] are just the other people that were
in the car and for some reason when they did the preliminary [hearing], they
got separated.”); N.T. Trial/Guilty Plea Hearing, 6/10/09, 47.
3 18 Pa.C.S. §§ 2702(a), 901(a)/2502, 903(a)(1)/2502, 6106(a)(1), and
907(a), respectively. The charges in this case concerned the shooting where
the target was Jason Couch, and Virginia Bing and C.I. were injured. See N.T.
Trial, 6/8/09, 8; N.T. Trial/Guilty Plea Hearing, 6/10/09, 48.
4 In the unrelated case at CP-XX-XXXXXXX-2007, Appellant pleaded guilty to
one count of carrying a firearm without a license, in violation of 18 Pa.C.S. §
6106(a)(1), and was sentenced in that case, on June 18, 2008, to one-and-
one-half to three years’ imprisonment, to be followed by four years’ probation.
See Commonwealth v. Garcia, 2024 WL 5166094, *1 (Pa. Super., filed Dec.
19, 2024) (unpublished memorandum) (1169 EDA 2024).
-6-
J-S30045-25
Order (sentencing at CP-51-CR-0010672-2007), 6/10/09, 1; Order
(sentencing at CP-51-CR-0010740-2007), 6/10/09, 1; Order (sentencing at
CP-51-CR-0004348-2008), 6/10/09, 1; N.T. Trial/Guilty Plea Hearing,
6/10/09, 73-76. Appellant did not file post-sentence motions or an appeal.
On June 7, 2010, Appellant filed, pro se, an initial PCRA petition in each
of the underlying criminal matters. Following the appointment of counsel,
Appellant filed a counseled amended PCRA petition in which he challenged the
legality of his sentence, asserting that that he had not been granted a credit
for time served, and alleged that his plea counsel provided ineffective
assistance by not requesting a time-credit or challenging the legality of his
sentence due to the failure to award a time-credit. See Amended First PCRA
Petition, 7/12/11, ¶¶ 6-7; Memorandum of Law, 8/11/11, 1-2. After the
Commonwealth filed an answer to the petition, the PCRA court issued notice
of its intent to dismiss the petition without a hearing pursuant to Pennsylvania
Rule of Criminal Procedure 907. See Rule 907 Notice, 2/15/12, 1. After
Appellant did not file a response to the dismissal notice, the PCRA court
entered docket entries reflecting the dismissal of the petition on March 19,
2012, and issued dismissal orders on March 21, 2012. See Trial Court Docket
Entries, 3/19/12; Order (first PCRA petition dismissal), 3/21/12, 1. On June
24, 2013, we affirmed the dismissal. See Commonwealth v. Garcia, 82
A.3d 468 (Pa. Super. 2013) (table) (1186 EDA 2012). On December 9, 2013,
our Supreme Court denied a subsequent petition for allowance of appeal. See
Commonwealth v. Garcia, 81 A.3d 75 (Pa. 2013) (table) (389 EAL 2013).
-7-
J-S30045-25
On March 4, 2021, Appellant filed, pro se, a second PCRA petition, which
was docketed in all three of the underlying criminal matters and is the focus
of the instant appeals. Therein, he claimed that he was entitled to relief
pursuant to an opinion he identified, without citation to a journal number, as
“Brooks v. Gilmore,” and alleged that his placement in solitary confinement
and his transfer to another state correctional facility constituted government
interference with his presentation of a claim for relief.5 See Pro Se Second
PCRA Petition, 3/4/21, §§ 5(i), 5(iii), 6(C). The PCRA court appointed counsel.
See Short Certificate Order (counsel appointment), 5/7/21, 1. On June 21,
2021, Appellant filed pro se correspondence, requesting to withdraw the
pending PCRA petition. See Pro Se Correspondence, 6/2/21 1. Prior to any
response to the pro se request to withdraw the petition, appointed counsel
filed a “no merit” letter pursuant to Commonwealth v. Finley, 550 A.2d 213
(Pa. Super. 1988) (en banc). In the Finley letter, counsel acknowledged
Appellant’s pro se petition withdrawal request and that the petition was
untimely filed, and noted, in any event, that, based on counsel’s independent
review of the record, counsel would be “unable to file an amended petition on
[Appellant’s] behalf.” Finley Letter, 2/25/22, 1-4.
____________________________________________
5 The case referred to by Appellant appears to be an unpublished
memorandum of the United States District Court for the Eastern District of
Pennsylvania in Brooks v. Gilmore, 2017 WL 3575475 (E.D.Pa., filed Aug.
11, 2017) (unpublished memorandum), in which the federal district court
ruled that a jury instruction on the issue of reasonable doubt constituted
structural error.
-8-
J-S30045-25
On August 25, 2022, Appellant filed pro se correspondence requesting
the PCRA court to issue writs because the plea court supposedly erred when
it ordered him to pay restitution. See Pro Se Correspondence, 8/25/22, 1.
He alleged that his sentence was illegal because the restitution was directed,
at least, in part, to a “victims compensation fund,” and the Commonwealth
could not be considered a victim for restitution purposes under 18 Pa.C.S. §
1106. See Pro Se Correspondence, 8/25/22, 1.
On September 12, 2022, Appellant filed pro se correspondence to the
PCRA court which he asserted was a motion for nunc pro tunc leave to amend
his PCRA petition pursuant to Pennsylvania Rule of Criminal Procedure 905 in
order to raise a claim that the plea court’s imposition of imprisonment
sentences for attempted murder and conspiracy, arising from the same
episode, violated 18 Pa.C.S. § 906. See Pro Se Correspondence, 9/12/22, 1.
On December 7, 2022, Appellant filed pro se correspondence to the
PCRA court in which he sought additional leave to amend his PCRA petition.
See Pro Se Correspondence, 12/7/22, 1. In this request, he asserted that he
wanted to raise a claim alleging that he was deprived of a full transcription of
the trial proceedings prior to the entry of his guilty pleas, referring to a “lack
of critical transcribed sidebar[ conferences],” which deprived him of an ability
to determine the voluntariness of his guilty pleas. Id. at 2-3.
On December 19, 2022, Appellant filed, pro se, correspondence to the
PCRA court, stating an intent to proceed pro se and seeking leave to file an
amended PCRA petition, a motion to proceed pro se, and a copy of a proposed
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amended PCRA petition. See Pro Se Correspondence, 12/19/22, 1; Pro Se
Motion to Proceed Pro Se, 12/19/22, 1; Pro Se Proposed Amended PCRA
Petition, 12/19/22, 1-10. In the proposed pro se amended PCRA petition,
Appellant alleged that he was serving an illegal sentence because he received
imprisonment terms for multiple inchoate offenses. See Pro Se Proposed
Amended PCRA Petition, 12/19/22, § 5(iii). As for applicable exceptions to
the PCRA’s time-bar provision, he asserted, relevant to this appeal, that it was
a previously unknown fact to him that part of his sentence in his unrelated
matter at CP-51-CR-0008407-2007 would be served consecutive to his
sentencing scheme in the instant criminal cases, even though the sentence at
CP-51-CR-0008407-2007 should have been “run totally concurrent” with the
sentences in the instant cases. Id. at §§ 5(ii), 6(A). He alleged that he
learned of his asserted “previously unknown fact” in a Commonwealth
response, dated January 11, 2022, to his PCRA petition in the separate matter
at CP-51-CR-0008407-2007. Id. at § 6(B).
In a letter brief that was attached to his proposed pro se amended PCRA
petition, Appellant asserted that: (1) he had been previously unaware that the
trial court had engaged in the plea bargaining process in his cases and that
activity supposedly invalidated his guilty pleas; (2) plea counsel was
ineffective for inducing his guilty pleas where he was allegedly innocent; (3)
his sentences exceeded the lawful maximums allowed; (4) the plea court
applied the wrong prior record score for his sentencing; (5) he was previously
unaware, prior to a January 18, 2022 Commonwealth filing in his unrelated
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criminal matter, that service of his four-year probationary sentence in that
case would be deferred until after his service of his imprisonment in the instant
criminal matters, and that was supposedly an improper modification of his
sentence that rendered his guilty pleas involuntary; (6) the plea court imposed
illegal sentences by sentencing him to imprisonment terms on multiple
inchoate offenses in violation of 18 Pa.C.S. § 906; (7) his order to pay
restitution rendered his sentence illegal because it directed payment to the
Commonwealth as a victim; and (8) an absence of transcripts for off-the-
record sidebar conferences impaired his ability to pursue appellate review and
mandated a remand to develop a full record. See Pro Se Letter Brief,
12/19/22, 1-11. He claimed that his discovery of the deferred service of his
probationary term at CP-51-CR-0008407-2007 constituted a newly-
discovered fact for purposes of seeking an exception to the PCRA’s
jurisdictional time-bar. Id. at 4; see 42 Pa.C.S. § 9545(b)(1)(ii).
On January 3, 2023, Appellant filed pro se correspondence to the PCRA
court requesting leave of court to amend his PCRA petition to assert that his
illegal sentence claim based on sentences for multiple inchoate offenses
qualified for review under a newly-recognized constitutional right exception to
the PCRA’s time-bar. See Pro Se Correspondence, 1/3/23, 1-2; see 42
Pa.C.S. § 9545(b)(1)(iii).
On January 12, 2023, Appellant filed pro se correspondence to the PCRA
court requesting leave of court to amend his PCRA petition to make additional
arguments for applying exceptions to the PCRA’s time-bar with respect to his
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claim that he was illegally sentenced on multiple inchoate offenses. See Pro
Se Correspondence, 1/12/23, 1; Pro Se Motion for Allowance for Leave to
Amend, 1/12/23, 1-4.
On February 14, 2023, Appellant filed pro se correspondence to the
PCRA court requesting leave to amend his PCRA petition to assert that the
newly-discovered fact exception to the PCRA’s time-bar applied to his claim
that the plea court improperly applied an incorrect prior record score at his
sentencing; Appellant did not identify the fact that would have been the basis
for applying that exception. See Pro Se Correspondence, 2/14/23, 1-2.
On March 10, 2023, the PCRA court granted Appellant’s counsel’s motion
to withdraw from representation of Appellant and permitted Appellant to
proceed pro se. See Order (PCRA counsel withdrawal), 3/10/23, 1.
On March 13, 2023, Appellant filed pro se correspondence to the PCRA
court that he characterized as a letter brief for a motion for discovery pursuant
to Pennsylvania Rule of Criminal Procedure 902(E), requesting a search
warrant, an affidavit of probable cause, and the notes of testimony for his
preliminary hearing. See Pro Se Correspondence, 3/13/23, 1-2.
On March 21, 2023, Appellant filed pro se correspondence to the PCRA
court that he characterized as a “motion for [a] stay” of his PCRA proceedings,
in which he restated his claims from his prior correspondence to the court,
alleging the incorrect calculation of his prior record score, the improper
imposition of imprisonment terms for multiple inchoate offenses, and the
improper imposition of restitution, and requested an “early determination on
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the merits” of those claims from the PCRA court. Pro Se Correspondence,
3/21/23, 1-5.
On April 27, 2023, the PCRA court filed correspondence to Appellant
denying his request for an “early decision” on his claims. PCRA Court
Correspondence, 4/27/23, 1. On May 3, 2023, the PCRA court filed
correspondence to Appellant and an order, granting him leave to file an
amended PCRA petition. See PCRA Court Correspondence, 5/3/23, 1; Order
(leave to amend), 5/3/23, 1.
On May 5, 2023, Appellant filed a pro se letter brief that he asked to be
accepted as an amended PCRA petition. See Amended PCRA Petition, 5/5/23,
1. Therein, he addressed his discovery that his pleas in the instant cases
caused deferred service of his probation term in his unrelated criminal matter,
which he characterized as a newly-discovered fact for time-bar purposes. See
id. at 3-4. He also argued that his claim regarding sentencing for multiple
inchoate offenses was reviewable pursuant to a newly-recognized
constitutional right exception to the time-bar based on our Supreme Court’s
decision in Commonwealth v. King, 234 A.3d 549 (Pa. 2020).6 See
Amended PCRA Petition, 5/5/23, 5. He also restated his claims alleging the
sentencing court’s consideration of an incorrect prior record score, the
____________________________________________
6 King was a direct appeal in which our Supreme Court concluded, inter alia,
that a trial court was precluded from imposing consecutive imprisonment for
inchoate crimes of attempted murder and conspiracy that arose from the same
incident. See King, 234 A.3d at 570-72.
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imposition of his restitution, his pleas being unlawfully induced, the trial court
improperly engaging in the plea negotiation process, and the absence of notes
of testimony for off-the-record side bar conferences at his trial that occurred
prior to the entry of his guilty pleas. See id. at 5-13.
On July 24, 2023, Appellant filed a pro se motion seeking a modification
of his restitution order. See Pro Se Motion for Modification of Sentence, 7/24,
23, 1-2. On July 28, 2023, the Commonwealth filed a response to Appellant’s
amended PCRA petition, requesting the dismissal of the petition as untimely
because it did not establish an exception to the PCRA’s time-bar. See
Commonwealth Response, 7/28/23, 1-18. On August 21, 2023, Appellant
filed a pro se response to the Commonwealth’s filing, again addressing his
argument for applying the newly-discovered fact time-bar exception to his
claim concerning deferred service of his probation in his unrelated criminal
matter as a result of his negotiated pleas in the instant criminal matters. See
Pro Se Response to Commonwealth, 8/24/23, 1-2. On August 29, 2023,
Appellant filed pro se correspondence to the PCRA court in which he requested
leave to amend his PCRA petition to assert that the trial court lost subject
matter jurisdiction over the case by permitting the Commonwealth to amend
his charges at his trial. See Pro Se Correspondence, 8/29/23, 1-3.
On October 30, 2023, Appellant filed pro se correspondence to the PCRA
court requesting leave of court to raise a “contemporaneous objection,”
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alleging that the Commonwealth committed a Brady7 violation, and asserting
that he had been deprived of information concerning misconduct in an
unrelated criminal matter by homicide detectives who supposedly had some
alleged involvement in his own case. See Pro Se Correspondence, 10/30/23,
1-5. Appellant also addressed this Brady claim in additional correspondence
to the PCRA court that he filed on December 12, 2023. See Pro Se
Correspondence, 12/12/23, 1-2. On February 23, 2024, the Commonwealth
filed a response addressing the Brady claim, advising the PCRA court to reject
the additional claim as untimely and meritless. See Commonwealth
Response, 2/23/24, 1-11.
On June 10, 2024, the PCRA court denied Appellant leave to amend his
petition. See Order (denial of amendment leave), 6/10/24, 1. On July 22,
2024, Appellant filed correspondence to the PCRA court requesting leave to
amend his petition to include additional arguments for applying the newly-
discovered fact time-bar exception to his various claims. See Pro Se
Correspondence, 7/22/24, 1-4.
On July 23, 2024, the PCRA court issued a Rule 907 dismissal notice.
See Rule 907 Notice, 7/23/24, 1. On August 5, 2024, Appellant filed pro se
correspondence to the PCRA court requesting reinstatement of his direct
appeal rights nunc pro tunc based on a “breakdown in the administration
process” caused by the Commonwealth being granted an amendment of his
____________________________________________
7 Brady v. Maryland, 373 U.S. 83 (1963).
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charges on the first day of his trial. Pro Se Correspondence, 8/5/24, 1-4. On
October 15, 2024, Appellant filed a pro se application for modification of his
restitution order. See Pro Se Application for Modification, 10/15, 2024, 1-8.
On November 7, 2024, the PCRA court issued orders dismissing
Appellant’s petition and denying his motion for modification of his restitution
order. See Order (denial of second PCRA petition), 10/7/24, 1; Order (denial
of restitution modification motion), 10/7/24, 1. Appellant timely filed notices
of appeal. See Notices of Appeal, 11/12/24. He also filed a timely court-
ordered concise statement of errors complained of on appeal pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b). 8 See Order (Rule 1925),
12/10/24, 1; Pro Se Rule 1925(b) Statement, 12/16/24, 1-2.
Appellant presents the following questions for our review:
1.) Did the PCRA [c]ourt’s reasoning for deeming Appellant’s
PCRA [p]etition untimely and not conducting a review of the
merits of the claims underlying the PCRA [p]etition’s
“newly[-]discovered fact invoked and pled by the
[Appellant] pursuant to 42 Pa.C.S. §[ ]9545(b)(1)(ii)” fail
where the [c]ourt found the newly[-]discovered fact was
easily discernable long before the 2023 filing of the instant
PCRA because Appellant’s claim is actually supported by the
facts in the [c]ertified [r]ecord?
____________________________________________
8 On November 25, 2024, we denied an application for relief filed by Appellant
in which he requested leave of court to amend his notices of appeal. See
Superior Court Order (denial of application for relief), 1/6/25, 1. On February
13, 2025, we granted Appellant’s application for consolidated of his three
appeals addressed herein. See Superior Court Order (consolidation),
2/13/25, 1-2; see also Pa.R.A.P. 513.
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2.) Does the newly-discovered facts being asserted for the
purposes of the time-bar exception pursuant to 42 Pa.C.S.
§[ ]9545(b)(1)(ii) serve as a “conduit” for the [c]ourt to
then review additional claims for relief asserted by Appellant
underlying the PCRA [petition?]
Appellant’s Brief, 2.
In his first issue, Appellant contends that the PCRA court erred by
dismissing his petition as untimely where he had alleged the newly-discovered
fact exception to the PCRA’s time-bar. See Appellant’s Brief, 6-7. Appellant
alleges that the new fact was that his probation term at CP-51-CR-00008407-
2007 would not be served concurrently with the prison sentences in the instant
matters, and that he first learned of the new fact in a “letter brief” from the
Philadelphia District Attorney’s Office that was filed in his unrelated criminal
matter at CP-51-CR-0008407-2007 on January 11, 2022. Id. at 7. He asserts
that the delayed service of that probation term “was not part of [his] plea
agreement in the instant case(s).” Id. He maintains that his petition was
timely filed for purposes of the newly-discovered fact exception because he
filed it before his receipt of the “letter brief” in the unrelated criminal matter
and then amended his petition within one year of his receipt of the “letter
brief” to raise the claim about the “deferred” probationary term. 9 Id.
____________________________________________
9 Appellant refers to an amended PCRA petition filed on December 19, 2022,
however, he filed a request for leave to file an amended petition at that time
in a pro se capacity while he still had appointed counsel who was awaiting a
response from the PCRA court on a petition withdraw from representation
pursuant to Finley. See Pro Se Correspondence, 12/19/22, 1; Pro Se Motion
to Proceed Pro Se, 12/19/22, 1; Pro Se Proposed Amended PCRA Petition,
12/19/22, 1-10. Appellant nevertheless raised his claim concerning the
(Footnote Continued Next Page)
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The PCRA court concluded that Appellant’s petition was untimely filed
and Appellant failed to demonstrate the applicability of the statutory time-bar
exception because he did not prove, for this claim or his remaining claims,
that he acted with the requisite diligence for seeking a time-bar exception:
“None of the claims Appellant claims are ‘new’ as the issues raised were easily
discernable long before the 2023 filing of the instant PCRA [petition]. This
PCRA [petition] is untimely, and none of the limited time-bar exceptions
apply.” PCRA Court Opinion, 1/27/25, 5.
“We review the denial of a PCRA petition to determine whether the
record supports the PCRA court’s findings and whether its order is free of legal
error.” Commonwealth v. Kelsey, 206 A.3d 1135, 1139 (Pa. Super. 2019).
Before we can review the issues raised on appeal, we must determine whether
Appellant’s petition satisfies our jurisdictional requirements. See
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (“we must
first consider the timeliness of Appellant’s PCRA petition because it implicates
the jurisdiction of this Court and the PCRA court”). “Our law is clear that the
PCRA’s time restrictions are jurisdictional in nature, and ‘[i]f a PCRA petition
is untimely, neither this Court nor the trial court has jurisdiction over the
petition. Without jurisdiction, we simply do not have the legal authority to
address the substantive claims.’” Commonwealth v. Anderson, 234 A.3d
____________________________________________
deferred service of his probation term in his unrelated criminal matter, with
leave of court, in an amended PCRA petition filed on May 5, 2023. See
Amended PCRA Petition, 5/5/23, 3-4; Order (leave to amend), 5/3/23, 1.
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735, 737 (Pa. Super. 2020) (brackets in original), quoting Commonwealth
v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation omitted).
All PCRA petitions, “including a second or subsequent petition, shall be
filed within one year of the date the judgment [of sentence] becomes final”
unless an exception to timeliness applies. 42 Pa.C.S. § 9545(b)(1). Here, the
plea court sentenced Appellant on June 10, 2009, and he did not subsequently
file post-sentence motions or an appeal. His judgments of sentence thus
became final on July 10, 2009, when his deadline for filing a direct appeal
expired. See 42 Pa.C.S. § 9545(b)(3) (judgment of sentence becomes final
at the conclusion of direct review or the expiration of time for seeking further
review). Appellant thus had until July 12, 2010, to file a timely PCRA
petition.10 See 42 Pa.C.S. § 9545(b)(1). He did not file his instant PCRA
petition until March 4, 2021. Therefore, Appellant’s PCRA petition is patently
untimely.
To obtain review of his untimely PCRA petition, Appellant was required
to plead and prove the applicability of one of three statutory exceptions that
are found at 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Moreover, pursuant to 42
Pa.C.S. § 9545(b)(2), he needed to plead and prove that he filed his petition
____________________________________________
10Because the one-year deadline for timely filing a PCRA petition fell on
Saturday, July 10, 2010, Appellant would have had until Monday, July 12,
2010, to file the petition. See 1 Pa.C.S. § 1908 (excluding, inter alia,
weekends from time computations).
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within one year of the date any claims for application of the statutory time-
bar exceptions “could have been presented.” Id.
With respect to his first issue, Appellant claims that he discovered from
a 2022 Commonwealth filing in his unrelated case that his 2009 plea
agreement for concurrent terms in the instant cases caused the Department
of Corrections to defer his probationary term in the unrelated case to be
served following his service of imprisonment in the instant cases. See
Appellant’s Brief, 7. He asserts this qualified for the application of the time-
bar exception at 42 Pa.C.S. § 9545(b)(ii), which applies when a PCRA
petitioner proves 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.” Id. Assuming arguendo that Appellant’s knowledge of the
exact aggregation of his multiple terms of imprisonment in the instant cases
and the probation term in the unrelated case could be considered a newly-
discovered fact for time-bar exception purposes, we agree with the PCRA
court’s conclusion that it was required to deny the instant PCRA claim because
Appellant did not raise his time-bar exception claim with the diligence required
by 42 Pa.C.S. § 9545(b)(2).
Here, we appreciate that the instant claim is based upon Appellant’s
view that the Department of Corrections should have designated his probation
term in the unrelated case to be served concurrently with the imprisonment
terms imposed in the cases before us. That view is contrary to a number of
opinions by this Court reasoning that probation cannot be served concurrently
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with imprisonment.11 See, e.g., Commonwealth v. Brown, 145 A.3d 184,
188 (Pa. Super. 2016) (holding that defendant Brown’s probationary sentence
did not commence until his release from federal custody and noting that
because “probation rehabilitates a defendant in a less restrictive manner than
total confinement” then “logic would lead to the conclusion that a term of
probation cannot be served while the defendant is imprisoned on an unrelated
sentence, whether it be in a state facility as in Allshouse or in federal custody
as with Brown”); Commonwealth v. Allshouse, 33 A.3d 31, 36 (Pa. Super.
2011) (“we find no support in the Pennsylvania statutes that the General
Assembly intended to permit defendants to serve a term of probation and a
term of state incarceration simultaneously”) (footnote omitted), overruled
on other grounds by Commonwealth v. Simmons, 262 A.3d 512 (Pa.
Super. Super. 2021) (en banc); Commonwealth v. Basinger, 982 A.2d 121,
127 (Pa. Super. 2009) (“No section of the Sentencing Code contemplated
imprisonment as an element of a probationary sentence; probation is in fact
a less restrictive alternative to imprisonment directed at rehabilitating the
defendant without recourse to confinement during the probationary period”)
(citations omitted).
____________________________________________
11 The issue of the propriety of probationary sentences running concurrently
with imprisonment sentences is currently before this Court en banc. See
Commonwealth v. Jennings, No. 1128 EDA 2024; Commonwealth v.
Robinson, No. 907 EDA 2024. Oral argument on that issue in Jennings and
Robinson was heard by an en banc panel on October 30, 2025.
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The passages cited above in Basinger, Allshouse, and Brown would
have provided Appellant notice years prior to the filing of his 2021 second
PCRA petition that his probation term at CP-XX-XXXXXXX-2007 could not be
served concurrently with his imprisonment terms in the three underlying
criminal matters. At a minimum, with the exercise of diligence in the
presentation of the instant claim, Appellant would have had reason, based on
that case law, to confirm with the Department of Corrections the exact
aggregation scheme that the department would have arrived at following his
2009 guilty plea agreement, if he were initially under the wrong impression
that probation could be served concurrently with imprisonment. Having
waited until his pro se filing in 2022, to raise a related claim about the
sentence aggregation scheme, based on supposed notice from a filing by the
Commonwealth in his unrelated case, Appellant could hardly demonstrate that
he acted with the requisite diligence mandated by 42 Pa.C.S. § 9545(b)(2).
Because Appellant could have learned of the overall sentencing scheme
resulting from his 2009 guilty plea agreement years prior to the filing of the
instant PCRA petition, with the exercise of due diligence, we agree with the
PCRA court that – to the extent Appellant sought relief for this claim under the
PCRA – it was unreviewable as time-barred. See Commonwealth v. Brown,
111 A.3d 171, 176 (Pa. Super. 2015) (PCRA timeliness exception at 42 Pa.C.S.
§ 9545(b)(ii) requires a petitioner to “demonstrate [that] 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”) (emphasis added).
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In the course of arguing the first issue, Appellant alludes to a separate
related claim seeking relief – not under the PCRA – but under the contractual
theory of specific performance: “Appellant is entitled to relief because
Appellant entered into an agreement that neither the trial court nor the
Commonwealth could keep when it accepted Appellant’s negotiated plea[.]”
See Appellant’s Brief at 9-10, citing Commonwealth v. Zuber, 353 A.2d
441 (Pa. 1976). We cannot address that claim in the first instance because,
based on the PCRA court’s opinion, it is not readily apparent that a specific
performance claim was presented to and ruled on by the PCRA court. In any
event, our review of the dismissal of the PCRA petition at issue does not bar
Appellant from proceeding with the presentation of a specific performance
claim in a plea enforcement motion to the plea court following our instant
review.12 See Commonwealth v. Kerns, 220 A.3d 607, 611-12 (Pa. Super.
2019) (“a collateral petition to enforce a plea agreement is regularly treated
as outside the ambit of the PCRA and under the contractual theory of specific
performance”).
In the remainder of his brief, Appellant assumes his establishment of an
applicable PCRA time-bar exception for his first issue establishes jurisdiction
____________________________________________
12 We would be acting beyond our role as an error-correcting court if we were
to address Appellant’s specific performance claim in the first instance.
Moreover, we are ill suited to address a claim of that nature where review
would require a mixture of factual and legal findings. Accordingly, we decline
to directly address the issue, which in any event Appellant may pursue,
without prejudice, in a subsequent plea enforcement motion.
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for his remaining substantive claims. See Appellant’s Brief, 11 (“Appellant
contends that this newly[-]discovered fact bears a logical connection to his
other plausible claims for relief since the newly[-]discerned fact presents a
substantial question to the legality of [Appellant]’s sentence which is an area
of the plea of guilt entered by [Appellant].”); see also id. at 18 (“This [newly-
discovered fact] should have allowed [the] PCRA [c]ourt to reach the merits
of the remaining claims underlying the [p]etition.”). He then proceeds to
argue that: (1) he received an illegal sentence due to the imposition of
imprisonment terms for multiple inchoate offenses, see id. at 11-12; (2) the
plea court did not have jurisdiction to accept his 2009 guilty pleas because it
supposedly permitted an untimely amendment of his conspiracy charge at CP-
51-CR-0004348-2008, see id. at 12-14; (3) the plea court improperly
engaged in the plea negotiation process in these cases, see id. at 14-17; (4)
the plea court applied an incorrect prior record score at his sentencing hearing,
see id. at 18-20; (5) the plea court improperly ordered him to pay restitution
to the Commonwealth, see id. at 20-21; and (6) the PCRA court should have
conducted an inquiry into a Brady claim Appellant raised with respect to a
discovery motion granted by the PCRA court, see id. at 22-23.
Of these additional claims, the averments that the plea court erred by
improperly engaging in the plea bargaining process and miscalculating his
prior record score were waived for PCRA purposes because they were trial
court error claims that could have been preserved before the plea court and
presented on direct review. See Commonwealth v. Spotz, 18 A.3d 244,
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270 (Pa. 2011) (“Appellant’s claim of trial court error … is both waived and
not cognizable under the PCRA because it could have been raised on direct
appeal.”); Commonwealth v. Fowler, 930 A.2d 586, 593 (Pa. Super. 2007)
(“Challenges to the discretionary aspects of sentencing are not cognizable
under the PCRA.”); 42 Pa.C.S. § 9543(a)(3) (a PCRA petition bears the burden
of pleading and proving by a preponderance of the evidence that his claim has
not been waived); 42 Pa.C.S. § 9544(b) (a claim is waived for purposes of the
PCRA if the petitioner could have previously raised it on appeal); see also
Commonwealth v. Myers, 324 A.3d 528, 543 (Pa. Super. 2024) (en banc)
(claim that a court miscalculated a prior record score implicates the
discretionary aspects of a sentence).
The claims that the plea court imposed an illegal sentence by levying
imprisonment terms for multiple inchoate offenses and the plea court lacked
jurisdiction to accept Appellant’s guilty pleas, and Appellant’s post-conviction
Brady claim were all cognizable under the PCRA and therefore subject to its
jurisdictional time-bar. See Commonwealth v. Larkin, 235 A.3d 350, 355
(Pa. Super. 2020) (en banc) (holding that a challenge to a court’s jurisdiction
to accept a guilty plea is cognizable under the PCRA and that a defendant
cannot “escape the PCRA time-bar” by raising such a claim in a habeas corpus
petition); Commonwealth v. Simpson, 66 A.3d 253, 264 n.16 (Pa. 2013)
(“A Brady claim is cognizable on collateral appeal under the PCRA”); Fowler,
930 A.2d at 592 (“[A]lthough legality of sentence is always subject to review
within the PCRA, claims must still first satisfy the PCRA’s time limits or one of
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the exceptions thereto.”) (citation omitted). As addressed above, Appellant
does not specifically argue for the application of any time-bar exception for
these substantive claims beyond asserting that the application of the newly-
discovered facts exception to his first issue should create jurisdiction for all of
his PCRA claims. See Appellant’s Brief, 11, 18.
Here, we did find above that Appellant satisfied his burden of pleading
and proving an applicable time-bar exception for his first issue concerning the
aggregation of his imprisonment terms with his probation term in an unrelated
criminal matter. Assuming arguendo that Appellant prevailed on proving an
applicable time-bar exception for his first issue, we would still reject his
argument that hypothetical jurisdiction created for his first issue would extend
to his other cognizable claims. This is because the PCRA time-bar exceptions
are claim-specific and the finding of an applicable time-bar exception for one
claim does not equally apply to other unrelated claims. See Commonwealth
v. Porter, 35 A.3d 4, 13-14 (Pa. 2012) (Section 9545(b) “speaks in singular
terms of ‘the claim’ or ‘the right’ which is the subject of a serial PCRA ‘petition’”
and, as such, the time-bar exceptions “are claim specific”); see, e.g.,
Commonwealth v. Woods, 179 A.3d 37, 44 (Pa. Super. 2017) (“if the right
announced in Miller [v. Alabama, 567 U.S. 460 (2012),] applies to any of
[a]ppellant’s claims, the petition is timely as to that specific claim”). In the
absence of Appellant pleading and proving an applicable time-bar exception
for the illegal sentence, plea-court jurisdiction, and Brady claims, they are
unreviewable for our purposes. See Commonwealth v. Brown, 943 A.2d
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264, 267 (Pa. 2008) (there is “no generalized equitable exception to the
jurisdiction one-year time bar pertaining to post-conviction petitions”).
Accordingly, we affirm the PCRA court’s dismissal of these discrete claims.
In Appellant’s remaining claim, he challenges part of the restitution
ordered by the plea court, alleging, based on our Supreme Court’s decision in
Commonwealth v. Veon, 150 A.3d 435 (Pa. 2016), that the plea court erred
by ordering him to pay partial restitution to the Commonwealth to reimburse
it for money paid from a crime victims’ compensation fund. See Appellant’s
Brief, 20-21. In a recent decision from this Court in Commonwealth v.
Thomas, 340 A.3d 1053 (Pa. Super. 2025), we considered a claim addressing
a motion to set aside restitution on the basis that the restitution was ordered
without consideration as to the appellant’s ability to pay, which a plea court
had rejected as an untimely PCRA petition. See id. at 1056. We appreciated
in that case that 18 Pa.C.S. § 1106(c)(3) creates an independent cause of
action for a defendant seeking a modification or amendment of a restitution
order which “are not subject to typical post-sentence timeliness constraints.”
Thomas, 340 A.3d at 1058; 18 Pa.C.S. § 1106(c)(3) (“The court may, at any
time … alter or amend any order of restitution.”) (emphasis added). Thus,
we agreed with defendant Thomas that his plea court erred by treating his
motion challenging a restitution order as an untimely PCRA petition. See
Thomas, 340 A.3d at 1058 (appellant Thomas “sought relief outside the ambit
of the PCRA, and his motion was not subject to its time constraints”).
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We agree that Thomas controls Appellant’s restitution claim under 18
Pa.C.S. 1106, and therefore the PCRA court improperly dismissed Appellant’s
restitution challenge as part of an untimely PCRA petition even though there
was no applicable statutory time-bar exception. See PCRA Court Opinion,
1/27/25, 5 (“Appellant’s myriad[] assertions includ[ing] …
restitution/sentencing issues … do not [in]voke an exception to the PCRA time
bar.”). Based on this erroneous application of the PCRA’s time-bar to the
restitution claim, we must remand for further proceedings.
Accordingly, we vacate the PCRA court’s dismissal order with respect to
Appellant’s claim challenging his restitution order, affirm the order as to his
remaining claims, and remand for further proceedings with respect to the
restitution challenge. We note that, on remand, Appellant is free to pursue,
outside the time constraints of the PCRA, a plea enforcement motion raising
a contractual specific performance claim alluded to in his first issue addressed
above.
Order affirmed in part and vacated in part. Case remanded for further
proceedings. Jurisdiction relinquished.
Judge Murray joins the memorandum.
Judge Olson concurs in the result.
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Date: 12/12/2025
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