Commonwealth v. Sanchez

J-S78015-18

2019 PA Super 45

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

VIRGILIO SANCHEZ A/K/A ROBERTO :

MOLINO :

: No. 416 EDA 2018

Appellant :

Appeal from the PCRA Order January 11, 2018

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

No(s): CP-51-CR-1208261-1996

BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

OPINION BY LAZARUS, J.: FILED FEBRUARY 19, 2019

Virgilio Sanchez, a/k/a Roberto Molino, appeals pro se from the trial

court’s order dismissing, as untimely, his fifth petition filed pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After review,

we affirm.

In 1997, Sanchez was convicted of first-degree murder1 and possessing

an instrument of crime (PIC),2 after shooting and fatally wounding the victim,

execution-style, in a Philadelphia bar. Sanchez was sentenced to life

imprisonment for murder, plus a consecutive term of 2½ to 5 years in prison

for PIC. He filed an unsuccessful direct appeal, Commonwealth v. Molino,

No. 4770 Phila. 1997, (Pa. Super. filed June 1, 1999) (unpublished

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1 18 Pa.C.S. § 2502.

2 18 Pa.C.S. § 907.

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* Former Justice specially assigned to the Superior Court.

J-S78015-18

memorandum), and, on January 13, 2000, the Pennsylvania Supreme Court

denied his petition for allowance of appeal. Sanchez filed five PCRA petitions

in November 2006, November 2007, July 2010, March 2013, and the instant

petition, on April 17, 2017. On December 1, 2017, the trial court issued

Pa.R.Crim.P. 907 notice of its intent to dismiss Sanchez’s meritless and

untimely petition, without a hearing, within 20 days. The notice also advised

Sanchez of his right to file a response within 20 days; he did not file a

response. On January 11, 2018, the court dismissed Sanchez’s fifth petition

as untimely. Sanchez filed a timely notice of appeal and court-ordered

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

On appeal, Sanchez raises one issue for our consideration: Did the court

err in determining that [Sanchez] failed to invoke an exception to the

timeliness requirements o[f] the PCRA[?] Appellant’s Brief, at 4.

Generally, a petition for PCRA relief, including a second or subsequent

petition, must be filed within one year of the date the judgment is final. See

42 Pa.C.S.A. § 9545(b)(3); see also Commonwealth v. Alcorn, 703 A.2d

1054 (Pa. Super. 1997). There are, however, exceptions to the time

requirement; those exceptions are set forth at 42 Pa.C.S.A. §§

9545(b)(1)(i),(ii), and (iii) and include interference by government officials in

the presentation of the claim, after-discovered facts or evidence, and an after-

recognized constitutional right. See Commonwealth v. Gamboa-Taylor,

753 A.2d 780, 783 (Pa. 2000). Where the petition alleges, and the petitioner

proves, that an exception to the time for filing the petition is met, the petition

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will be considered timely. A PCRA petition invoking one of these exceptions

must “be filed within 60 days of the date the claims could have been

presented.” Id.; see also 42 Pa.C.S.A. § 9545(b)(2).3 The timeliness

requirements of the PCRA are jurisdictional in nature and, accordingly, a PCRA

court cannot hear untimely petitions. Commonwealth v. Robinson, 837

A.2d 1157 (Pa. 2003).

In his petition, which he acknowledges is patently untimely4 under the

PCRA, Sanchez alleges that Philadelphia Detective George Pirrone may have

done “shady work in [his] case” based on a Pennsylvania Law Weekly article

that he read in the prison library. Specifically, Sanchez alleges a “newly-

discovered fact” under section 9545(b)(1)(ii) of the PCRA, saves his untimely

petition from the well-established filing deadline. The timeliness exception set

forth in section 9545(b)(1)(ii) requires a petitioner to demonstrate he did not

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3 Section 9545(b)(2) was amended on October 24, 2018, effective in 60 days

(Dec. 24, 2018), extending the time for filing from sixty (60) days of the date

the claim could have been presented, to one year. The amendment shall apply

to claims arising on December 24, 2017, or thereafter. See Act 2018, Oct.

24, P.L. 894, No. 146, § 3. Since Sanchez’s petition was filed on April 13,

2017, the 60-day time limit applies to this case.

4 Sanchez filed the instant petition on April 17, 2017. Sanchez’s judgment of

sentence became final on April 12, 2000, when the time expired for him to file

a petition for certiorari with the United States Supreme Court. See 42

Pa.C.S.A. § 9545 (b)(3); Sup. Ct. R. 13 (parties have 90 days to file petition

for certiorari United States Supreme Court from denial of Pennsylvania

Supreme Court’s petition for allowance of appeal). Thus, he had until April

12, 2001 to file a timely PCRA petition. His current petition was filed more

than sixteen years after that deadline.

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know the facts upon which he based his petition and could not have learned

of 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 facts earlier

with the exercise of due diligence. Commonwealth v. Brown, 111 A.3d 171,

176 (Pa. Super. 2015).

The “newly-discovered fact” Sanchez alleges is that on April 21, 2016,

a jury found Detective Pirrone liable for malicious prosecution and false arrest.

See Alleyne v. Pirrone, 2017 Phila. Ct. Com. Pl. LEXIS 28 (filed Feb. 1,

2017).5 Despite his claims that he successfully pled and proved a section

9545(b)(1)(ii) exception, Sanchez is misguided.

First, Sanchez does not explain how the facts regarding Pirrone’s civil

judgments could not have been ascertained sooner by the exercise of due

diligence. 42 Pa.C.S.A. § 9545(b)(1)(ii). Second, Sanchez did not file his

petition until April 17, 2017, almost one year after Pirrone was found liable.

Thus, he does not meet the 60-day time requirement under section

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5 We note that on appeal, the Commonwealth Court reversed Detective

Pirrone’s civil judgments, concluding that: (1) malicious prosecution and false

arrest judgments were infirm because improprieties by detective did not rise

to the level of preventing any reasonable person from believing that defendant

had committed a crime; and (2) evidence of false arrest immediately available

on the scene provided officer with reasonable basis to suspect defendant

committed crime and that detention was based upon probable cause. See

Alleyne v. Pirrone, 180 A.3d 524 (Pa. Commw. 2018).

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9545(b)(2), and the PCRA court did not have the power to address the

substantive merits of Sanchez’s PCRA claims. Brown, supra. Thus, the PCRA

court properly dismissed Sanchez’s petition as untimely.6

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/19/19

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6 Moreover, even if Sanchez had proven due diligence and filed his petition

within 60 days of the date of the Pirrone verdict, it ultimately would not have

afforded him any relief. In Commonwealth v. Foreman, 55 A.3d 532 (Pa.

Super. 2012), our Court found that “new evidence” regarding the filing of

criminal charges against a detective in an unrelated matter does not meet the

after-discovered evidence test where the evidence would be used solely to

impeach the detective’s credibility and would not likely result in a different

verdict if a new trial were granted. While the newly-discovered-fact exception

under section 9545(b)(1)(ii) is not the same as a substantive after-

discovered-evidence claim under section 9543(a)(2)(vi), the former is a

jurisdictional threshold to presenting the latter type of claim. Thus, even had

the threshold been met, Sanchez would not have been able to prove the

substantive claim that the evidence would have changed the outcome of his

trial.

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