Com. v. Colon, H.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

HECTOR DAVID COLON :

:

Appellant : No. 436 MDA 2026

Appeal from the PCRA Order Entered February 6, 2026 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0002458-2009

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

HECTOR DAVID COLON :

:

Appellant : No. 437 MDA 2026

Appeal from the PCRA Order Entered February 6, 2026 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0002461-2009

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

HECTOR D. COLON :

:

Appellant : No. 438 MDA 2026

Appeal from the PCRA Order Entered February 6, 2026 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0002462-2009

BEFORE: PANELLA, P.J.E., NICHOLS, J., and NEUMAN, J.

MEMORANDUM BY NICHOLS, J.: FILED: AUGUST 24, 2026

Appellant Hector David Colon appeals from the order dismissing his

fourth Post Conviction Relief Act (PCRA)1 petition. On appeal, Appellant makes

various claims regarding the litigation of his prior PCRA petitions. After our

review, we affirm.

The facts of this case were set forth by a prior panel of this Court as

follows:

During the course of several years beginning in the late [1990s], Appellant regularly sexually assaulted three young girls, A.M., S.C., and B.S. Each victim reported the conduct commenced around age 5 to 6 and ended around age 12 to 13. Following an investigation, Appellant was charged with numerous crimes. With regard to A.M., Appellant was charged with indecent assault, unlawful contact with a minor, and corruption of minors. As to B.S., Appellant was charged with one count of criminal attempt, two counts of indecent assault-complainant less than 13 years, two counts of corruption of minors, and two counts of unlawful contact with a minor. Appellant was also charged with rape of a child, rape (victim less than 13 years old), indecent assault, unlawful contact with a minor, and corruption of minors in connection with his abuse of S.C. On May 16, 2011, a jury convicted Appellant of all offenses.

Commonwealth v. Colon, 590 MDA 2012, 2013 WL 11255567, at *1 (Pa.

Super. filed Aug. 14, 2013) (unpublished mem.) (some formatting altered and

footnote omitted).

The PCRA court set forth the post-trial procedural history as follows:

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1 42 Pa.C.S. §§ 9541-9546.

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On November 7, 2011, [the trial court] sentenced [Appellant] to an aggregate term of not less than twenty-five (25) nor more than fifty-five (55) years in a state correctional institution.

On November 16, 2011, [Appellant] filed a post-sentence motion, which [the trial court] denied on February 23, 2012. On March 21, 2012, [Appellant] filed a timely notice of appeal to the Pennsylvania Superior Court. On August 14, 2013, the Superior Court affirmed the judgment of sentence. [See Colon, 2013 WL 11255567. Appellant] did not seek allowance of appeal from the Pennsylvania Supreme Court.

On June 18, 2014, [Appellant] filed his first petition for relief under the [PCRA]. On July 3, 2018, [the PCRA court] denied [Appellant’s] petition. [Appellant] filed an appeal to the Pennsylvania Superior Court, and on February 4, 2019, the Superior Court quashed [Appellant’s] appeal for failure to comply with Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) (where a single order resolves issues arising on more than one docket, separate notices of appeal must be filed for each case) (subsequently abrogated by amendments to Pa. R.A.P. 902, effective May 18, 2023). [See Commonwealth v. Colon, 1247 MDA 2018, 2019 WL 421908 (Pa. Super. filed Feb. 4, 2019) (unpublished mem.)]

On March 18, 2019, [Appellant] filed a motion in [the PCRA] court seeking pro se status. On July 22, 2019, [the PCRA court] held a hearing on said motion and re-appointed previous PCRA counsel. On August 19, 2019, [Appellant] filed notices of appeal at each of the instant dockets from the order of July 3, 2018, dismissing [Appellant’s] first PCRA petition. On May 15, 2020, the Superior Court quashed [Appellant’s] appeal as untimely, finding that [the PCRA] court never reinstated the right to appeal the dismissal of the PCRA, and that [the PCRA court] would have lacked jurisdiction to do so because [Appellant’s] request for relief amounted to an untimely second PCRA petition. [See Commonwealth v. Colon, 1379 MDA 2019, 2020 WL 2510434 (Pa. Super. filed May 15, 2020) (unpublished mem.).] On November 12, 2020, the Supreme Court denied [Appellant’s] Petition for Allowance of Appeal.

On October 31, 2024, [Appellant] filed a third PCRA petition, which [the PCRA court] dismissed on November 25, 2024. On December 13, 2024, [Appellant] filed a notice of appeal from that dismissal,

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but the appeal was discontinued on September 5, 2025, at [Appellant’s] request.

On January 12, 2026, [Appellant] filed a pro se fourth PCRA petition to reinstate appellate rights, alleging that he had a “constitutional and statutory right to file a direct appeal from the judgment of sentence” that “was lost through no fault of his own.”

Rule 907 Notice, 1/20/26, at 1-2 (some formatting altered).2

On January 20, 2026, the PCRA court issued a Rule 907 Notice of Intent

to Dismiss. Appellant filed a response on February 5, 2026. The PCRA court

dismissed Appellant’s PCRA petition on February 6, 2026. Appellant filed a

notice of appeal on March 13, 2026.3

Appellant raises the following issue for our review:

1. Whether the Superior Court of [Pennsylvania] erred in quashing [Appellant’s] first notice of appeal filed on July 27, 2018 . . ., pursuant to [Commonwealth] v. Bennett?

2. Whether the Superior Court violated [Appellant’s] Fourteen[th]

Amendment equal protection of law when [Appellant’s] first notice of appeal was quashed and t[w]o other cases were

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2 The PCRA court filed a Rule 1925(a) opinion on March 20, 2026, which incorporated its January 20, 2026 notice of intent to dismiss pursuant to Pa.R.Crim.P. 907. See PCRA Ct. Op., 3/20/26, at 1.

3 While Appellant’s notice of appeal was filed more than thirty days after his

PCRA petition was dismissed, we note that the PCRA court dockets do not reflect that the dismissal order was served on Appellant. See Docket, 2458- 2009, at 37; Docket, 2461-2009, at 39; Docket, 2462-2009, at 40. Accordingly, we decline to quash this appeal. See Commonwealth v. Midgley, 289 A.3d 1111, 1117 (Pa. Super. 2023) (explaining that “[w]here the trial court docket in a criminal case does not indicate service on a party or the date of service, we will not quash the appeal or require further proceedings. Rather, we will treat the time in which to take an appeal as never having started to run and treat the appeal as timely”).

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excused the procedural failing? McClinton 7/13/2018 / Lee 7/17/2018.

3. Whether counsel’s or the court’s actions created extraordinary circumstances warranting nunc pro tunc relief?

4. Whether court[-]appointed PCRA counsel was ineffective for not perfecting the first notice of appeal filed on July 27, 2018?

5. Whether the trial court’s later reinstatement of appellate rights nunc pro tunc should have been recognized as a proper [exercise] of the court’s equitable authority?

Appellant’s Brief at 4 (some formatting altered).

In reviewing an order denying a PCRA petition, our standard of review

is well settled:

Our standard of review from the denial of a PCRA petition is limited to examining whether the PCRA court’s determination is supported by the evidence of record and whether it is free of legal error. The PCRA court’s credibility determinations, when supported by the record, are binding on this Court; however, we apply a de novo standard of review to the PCRA court’s legal conclusions.

Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019)

(citations omitted and some formatting altered).

The timeliness of a PCRA petition is a threshold jurisdictional question.

See Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014); see

also Commonwealth v. Ballance, 203 A.3d 1027, 1031 (Pa. Super. 2019)

(stating that “no court has jurisdiction to hear an untimely PCRA petition”

(citation omitted and emphasis in original)). “A PCRA petition, including a

second or subsequent one, must be filed within one year of the date the

petitioner’s judgment of sentence became final, unless he pleads and proves

one of the three exceptions outlined in 42 Pa.C.S. § 9545(b)(1).”

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Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012) (citation and footnote

omitted). A judgment of sentence becomes final at the conclusion of direct

review, or at the expiration of time for seeking such review. See id. at 17;

42 Pa.C.S. § 9545(b)(3).

Appellant’s judgment of sentence became final on September 13, 2013,

thirty days after this Court’s affirmance of his judgment of sentence when he

failed to seek allocatur with the Pennsylvania Supreme Court. See Colon,

1379 MDA 2019, 2020 WL 2510434, at *3 n.4; see also 42 Pa.C.S. §

9545(b)(3); Pa.R.A.P. 1113 (providing that an appellant has thirty days to file

a petition for allowance of appeal with the Pennsylvania Supreme Court).

Therefore, Appellant had until September 15, 20144 to file a timely PCRA

petition. See Jones, 54 A.3d at 16. The record reflects that Appellant’s fourth

PCRA petition, which is the subject of this appeal, was filed on January 12,

2026, making it facially untimely. See Jones, 54 A.3d at 16-17.

Courts may consider a PCRA petition filed more than one year after a

judgment of sentence becomes final if the petitioner pleads and proves one of

the following three statutory exceptions:

(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the

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4 One year from the date that Appellant’s judgment of sentence became final

fell on September 13, 2014, which was a Saturday. Accordingly, Appellant had until the following Monday, September 15, 2014, to file a timely PCRA petition. See 1 Pa.C.S. § 1908 (stating that for computations of time, if the last day of any such period shall fall on a Saturday, Sunday, or any legal holiday, such day shall be omitted from the computation).

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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). A petitioner asserting one of these exceptions

must file a petition within one year of the date the claim could have first been

presented. See 42 Pa.C.S. § 9545(b)(2). It is the petitioner’s “burden to

allege and prove that one of the timeliness exceptions applies.”

Commonwealth v. Albrecht, 994 A.2d 1091, 1094 (Pa. 2010) (citations

omitted and some formatting altered).

Here, the PCRA court addressed the timeliness of Appellant’s fourth

PCRA petition as follows:

[Appellant] has not proven, nor even alleged, a timeliness exception pursuant to 42 Pa.C.S. § 9545(b)(l)(i)-(iii). . . .

Without applicability of one of the recognized exceptions to the time limitations of the PCRA, [the PCRA court is] without authority or jurisdiction to address [Appellant’s] request to reinstate his direct appeal rights nunc pro tunc. We note that the Superior Court, in its memorandum opinion dated May 15, 2020, addressed [Appellant’s] request to reinstate his right to appeal nunc pro tunc from the dismissal of his initial PCRA petition and found that we lacked jurisdiction to do so absent an exception to the PCRA’s time requirements. The same analysis applies herein.

Rule 907 Notice, 1/20/26, at 4 (some formatting altered).

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After our review, we conclude that the PCRA court’s determination that

Appellant’s fourth PCRA petition was untimely is supported by the record and

free of legal error. See Sandusky, 203 A.3d at 1043. Appellant failed to

plead any of the PCRA’s timeliness exceptions in his fourth PCRA petition. See

Fourth PCRA Petition, 1/12/26, at 1-2; see also Albrecht, 994 A.2d at 1094.

In his appellate brief, Appellant raises the newly discovered fact exception

based on his discovery of PCRA counsel’s alleged ineffective assistance. See

Appellant’s Brief at 11. However, Appellant only raised this exception in his

response to the PCRA court’s Rule 907 Notice. See Response to Rule 907

Notice, 2/5/26, at 3. Appellant did not seek leave to amend his PCRA petition

to include this timeliness argument. See id. Because Appellant raised this

timeliness argument for the first time in his response to the PCRA court’s Rule

907 notice without seeking, and receiving, leave to amend his PCRA petition,

we find this argument waived on appeal. See Commonwealth v. Walker,

853 EDA 2024, 2025 WL 922158, at *4 (Pa. Super. filed Mar. 25, 2025)

(unpublished mem.) (stating that “[a] time-bar exception raised for the first

time in response to a court’s Rule 907 notice is not preserved for [appellate]

review” (citation omitted));5 see also Commonwealth v. Rykard, 55 A.3d

1177, 1192 (Pa. Super. 2012) (stating that, “in order to properly aver a new

non-PCRA counsel ineffectiveness claim, the petitioner must seek leave to

amend his petition”), overruled in part on other grounds by Commonwealth

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5 See Pa.R.A.P. 126(b) (stating this Court may rely on unpublished decisions

of this Court filed after May 1, 2019, for their persuasive value).

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v. Bradley, 261 A.3d 381 (Pa. 2021). Accordingly, Appellant’s fourth PCRA

petition is untimely without establishing an exception and, therefore, no court

has jurisdiction to reach the merits of his claims. See Ballance, 203 A.3d at

1031.

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 08/24/2026