J-S43043-25 2026 PA Super 46
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSE ANTONIO CRUZ : : Appellant : No. 1529 EDA 2024
Appeal from the PCRA Order Entered April 29, 2024 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0003697-2011
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSE ANTONIO CRUZ : : Appellant : No. 1530 EDA 2024
Appeal from the PCRA Order Entered April 29, 2024 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0003701-2011
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and BENDER, P.J.E.
OPINION BY BENDER, P.J.E.: FILED MARCH 12, 2026
Appellant, Jose Antonio Cruz, appeals from the orders denying his
petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. J-S43043-25
§§ 9541-9546. We affirm the orders on the alternative basis that the
underlying petitions are untimely. 1
The facts underlying Appellant’s convictions are immaterial to our
analysis, and a detailed account of the facts is available in our decision
affirming Appellant’s judgment of sentence on direct appeal. See
Commonwealth v. Cruz, No. 92 EDA 2013, at *1-5 (Pa. Super. filed Sept.
22, 2014) (unpublished memorandum).
Appellant did not seek further review with our Supreme Court. He
commenced timely PCRA proceedings on September 24, 2015, and we
affirmed the PCRA court’s dismissal thereof. See Commonwealth v. Cruz,
No. 2543 EDA 2016, (Pa. Super. filed May 15, 2018) (unpublished
memorandum). Appellant raised four issues on appeal, including claims of
trial counsel ineffectiveness. We concluded that three of the four issues did
not warrant relief. As to the fourth, we remanded for further proceedings.
Appellant argued that “direct appeal counsel was ineffective for failing to file
a petition for allowance of appeal … in the Pennsylvania Supreme Court after
this Court affirmed his judgment of sentence.” Id. at *9. Specifically, he
alleged that direct appeal counsel failed to inform him that this Court denied
relief on direct appeal, causing him to miss the thirty-day period to seek
review with our Supreme Court. See Pa.R.A.P. 1113(a). The PCRA court had ____________________________________________
1 Appellant was charged at two separate dockets for crimes arising out of the
same episode. We granted Appellant’s request to consolidate these appeals. Order, 8/27/24. For ease of reference, we generally refer to the underlying PCRA petitions and orders in the singular.
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rejected that claim due to appointed PCRA counsel’s representation in a letter
allegedly sent to Appellant. We “decline[d] to deny [Appellant]’s claim based
solely on PCRA counsel’s interpretation of a letter which is not included in the
certified record,” and remanded for “an evidentiary hearing limited to that
issue.” Id. We affirmed in all other respects.
On remand, the PCRA court held a hearing and granted reinstatement
of Appellant’s right to file a petition for allowance of appeal (“PAA”) in our
Supreme Court. Our Supreme Court denied the petition on July 23, 2019.
Commonwealth v. Cruz, 216 A.3d 1023 (Pa. 2019) (per curiam).
Appellant filed the PCRA petition underlying these appeals on September
30, 2020. The PCRA court issued a notice of intent to dismiss, concluding that
the petition was untimely on its face. See Notice of Intent to Dismiss,
10/9/20, at unnumbered 1. Appellant filed a reply, asserting that the petition
was in fact timely, citing Commonwealth v. Turner, 73 A.3d 1283 (Pa.
Super. 2013), for the proposition that the “time period for filing [a] PCRA
petition restarts after order reinstating petitioner’s direct appeal rights upon
grant of first PCRA petition” thus making this his first PCRA petition.
Response, 10/28/20, at 2. The PCRA court issued an order agreeing with
Appellant that his PCRA petition was timely, and appointed counsel. Order,
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10/30/20 (single page). Following protracted litigation, appointed counsel
filed a Turner/Finley2 “no-merit” letter and petition to withdraw.
On February 29, 2024, the PCRA court issued a notice of intent to
dismiss. Appellant filed objections on March 25, 2025, and the PCRA court
dismissed the petition on April 29, 2024. Appellant filed a timely notice of
appeal at each docket3 and complied with the PCRA court’s order to file a Rule
1925 statement. The PCRA court filed its responsive opinion. Appellant raises
two issues for our review.
1. Whether the PCRA court committed an error of law by failing to hold evidentiary hearings or grant relief due to trial counsel’s failure to investigate, discover and present petitioner’s history of chronic alcoholism; polysubstance abuse disorder; cocaine- induced psychotic episodes; genetic predisposition to blackouts; dysfunctional childhood of abuse and neglect which caused post- traumatic stress; major depression; insomnia; and anxiety disorder in support of the defense of diminished capacity due to voluntary intoxication or mental defect?
2. Whether the PCRA court committed an error of law in failing to grant relief or hold evidentiary hearings on the Brady [v. Maryland, 373 U.S. 83 (1963)] claims where the record shows that the prosecutor intentionally withheld evidence, made untimely disclosures on the eve of trial, and then commented on
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2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3 Appellant’s notices of appeal were docketed more than thirty days after the trial court’s order. Appellant attached a certified mail receipt establishing that the documents were placed in the prison mail system on May 28, 2024. The “prisoner mailbox” rule deems the notice of appeal “filed on the date that the prisoner deposits the appeal with prison authorities, or places it in a prison mailbox.” Commonwealth v. Little, 716 A.2d 1287, 1288 (Pa. Super. 1998). The notices of appeal are therefore timely.
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facts outside of the record, during trial and again during closing, expressing his personal opinion that petitioner was lying to them?
Appellant’s Brief at 4.
Our standard of review regarding an order denying a petition under the
PCRA is whether the determination of the PCRA court is supported by the
evidence of record and is free of legal error. Commonwealth v. Ragan, 923
A.2d 1169, 1170 (Pa. 2007).
“Before we can address the merits of these issues ... we must determine
if the PCRA court had jurisdiction,” as “[t]he timeliness of a PCRA petition is a
jurisdictional requisite.” Commonwealth v. Ballance, 203 A.3d 1027,
1030–31 (Pa. Super. 2019). Upon review, we agree with the PCRA court’s
initial conclusion that this PCRA petition was untimely, see Notice of Intent to
Dismiss, 10/9/20, at unnumbered 1, and affirm on that alternative basis.
Commonwealth v. Williams, 977 A.2d 1174, 1177 (Pa. Super. 2009) (“It is
well-settled … that we may affirm the PCRA court’s decision on any basis.”)
(citation omitted).
Subject to three statutory exceptions, any petition for relief under the
PCRA must be filed within one year of the date the defendant’s judgment of
sentence becomes final.4 42 Pa.C.S. § 9545(b)(1). “[A] judgment becomes
final at the conclusion of direct review, including discretionary review in the
4 “The statute makes clear that where, as here, the petition is untimely, it is the petitioner's burden to plead in the petition and prove that one of the exceptions applies.” Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999). As noted, Appellant maintains that this petition is timely and does not allege any exception applies.
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Supreme Court of the United States and the Supreme Court of Pennsylvania,
or at the expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(2).
We affirmed Appellant’s judgment of sentence on September 22, 2014, and
he did not seek review with our Supreme Court. Thus, his judgment of
sentence became final thirty days later on October 22, 2014. Accordingly, as
the PCRA court initially determined, his PCRA petition filed in October of 2020
is patently untimely.
As previously stated, the PCRA court rescinded its notice of intent to
dismiss and agreed with Appellant that restoration of his right to petition our
Supreme Court for review of our direct appeal decision “reset” the finality
calculation. Order, 10/30/20. Under this view, Appellant’s judgment of
sentence became final on October 21, 2019, i.e., ninety days after our
Supreme Court denied his PAA and his time period for seeking review with the
United States Supreme Court expired. See U.S. Sup. Ct. Rule 13. This
calculation would make his September 30, 2020 filing timely.
For the following reasons, we conclude that the clock did not reset, and
the only issues Appellant could potentially raise in this PCRA petition filed after
the reinstatement of his right to file a PAA with our Supreme Court are those
related to counsel’s performance in the PAA proceedings.
Appellant and the PCRA court correctly recognized that restoration of a
defendant’s direct appeal rights “resets” the one-year time limit for filing a
PCRA petition.
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To explicate, as we held in Commonwealth v. Dehart, 730 A.2d 991, 994 n. 2 (Pa. Super. 1999), a successful first PCRA petition does not “reset the clock” for the calculation of the finality of the judgment of sentence for purposes of the PCRA where the relief granted in the first petition neither restored a petitioner’s direct appeal rights nor disturbed his conviction, but, rather, affected his sentence only.
Commonwealth v. McKeever, 947 A.2d 782, 785 (Pa. Super. 2008).
The question here is whether, as the PCRA court and parties have
presumed, restoration of the right to file a petition for allowance of appeal
with our Supreme Court qualifies as a restoration of his “direct appeal rights”
for purposes of this judicial rule. We conclude that, under these
circumstances, this principle does not extend to restoration of the right to file
a PAA because Appellant also received review of other PCRA claims.
The “reset” theory discussed in McKeever seeks to effectuate legislative
intent when performing a statutory analysis of the PCRA’s eligibility provisions.
Section 9545(b)(3), setting forth the time requirements for filing a PCRA
petition, states that “a judgment becomes 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 the review.” 42 Pa.C.S. § 9545(b)(3). Our Supreme Court “has
made clear that the time limitations pursuant to the amendments to the PCRA
are jurisdictional.” Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999).
The PCRA makes plain that “challenges to a conviction must be raised ... within
one year of final judgment[.]” Moreover, our courts have concluded that this
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one-year period “is sufficiently generous to prepare even the most difficult
case[.]” Id.
Our decision in Commonwealth v. Anderson, 788 A.2d 1019 (Pa.
Super. 2001), explains that applying the “reset” theory requires consideration
of whether the outcome would frustrate the purpose of affording finality to
criminal judgments after the period for seeking collateral review expires.
Anderson accepted a negotiated guilty plea on May 5, 1997, and did not file
an appeal; his judgment of sentence became final on June 4, 1997. On June
3, 1998, the trial court resentenced Anderson for violating his probation. Id.
at 1020. Again, Anderson did not file a direct appeal. Instead, on October 2,
1998, he filed a PCRA petition seeking to challenge his plea counsel’s
stewardship, which was untimely as it was filed more than one year after his
original plea date. Nonetheless, Anderson argued “that the revocation of
probation ‘reset the clock’ on the PCRA time limitations. Accordingly, he
insists that his October 2, 1998, petition is timely because it was filed within
one year of July 3, 1998.” Id. at 1021. We rejected this theory, explaining
that a probation “revocation does not materially alter the underlying
conviction such that the period available for collateral review must be
restarted.” Id. Furthermore:
The Legislature did, however, by its enactment of 42 Pa.C.S.[] § 9543(a)(2)(vii), intend to provide collateral review to probation revocation issues. As such, we find that probation revocation presents a special situation insofar as determining timeliness under § 9545. We hold that where a new sentence is imposed at a probation revocation hearing, the revocation hearing date must be employed when assessing finality under § 9545(b)(3) to any
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issues directly appealable from that hearing. To hold otherwise would frustrate the purpose behind the PCRA.
Id. (emphasis added).
Our decision in McKeever, supra, is analogous. McKeever entered a
guilty plea to several crimes and was sentenced in 1995. In 2005, long after
his judgment of sentence became final, a federal court granted his petition for
a writ of habeas corpus, concluding that one of the convictions was invalid.
McKeever, 947 A.2d at 783. The Court of Common Pleas of Erie County
thereafter resentenced McKeever. Id. McKeever filed an appeal from that
new judgment of sentence and, afterwards, filed for PCRA relief and sought to
challenge aspects of the case which remained undisturbed by the federal
courts. Id. at 784. We concluded that his petition was untimely. Id. at 785.
Although [McKeever] successfully challenged his corrupt organizations convictions and sentences successfully in federal court, the remainder of his convictions, each having a distinct sentence, were not disturbed by the Eastern District Court’s grant of habeas corpus relief or by the trial court when it vacated the corrupt organizations sentences in its resentencing order.
Id. The McKeever Court therefore held that the judgment of sentence as to
the non-vacated sentences became final in 1995.
The McKeever case involves a grant of relief in federal proceedings as
opposed to the reinstatement at issue here, but the case implicitly holds that,
since McKeever had a full opportunity to raise issues unrelated to the federal
relief under the “normal” finality calculation, granting additional opportunities
for PCRA review would undermine legislative intent. See also
Commonwealth v. Lesko, 15 A.3d 345, 362 (Pa. 2011) (holding that “a
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limited grant of federal habeas sentencing relief does not give rise to a ‘right’
to full-blown serial PCRA review”).
We similarly conclude that “resetting” the clock under the circumstances
of the case at bar would frustrate legislative intent. We start by noting that a
complete restoration of appellate rights furthers legislative intent by
promoting uniform treatment. In Commonwealth. v. Lantzy, 736 A.2d 564,
567 (Pa. 1999), our Supreme Court held that the PCRA’s provision authorizing
relief for ineffective assistance of counsel permitted reinstatement of appellate
rights where the attorney failed to file an appeal as requested by the client.
“Since the failure to perfect a requested appeal is the functional equivalent of
having no representation at all,” id. at 571, the deprivation of counsel
warrants restoring the right to seek appeal, and “the petitioner is not required
to establish his innocence or demonstrate the merits of the issue or issues
which would have been raised on appeal.” Id. at 572.
“Resetting” the clock where the accused has not received any sort of
appellate review thus ensures that the convicted defendant has a full
opportunity to litigate a direct appeal of his judgment of sentence, followed
by collateral review. This scheme ensures that the individual can also raise
ineffective assistance of counsel claims related to direct appeal counsel’s
stewardship. Furthermore, it eliminates any uncertainty of when the clock
should start running. In such circumstances, a “reset” simply puts the
convicted defendant back to the same position they would have enjoyed had
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the requested appeal been filed and treats such individuals identically to all
other PCRA petitioners.
Conversely, “resetting” the clock when an accused was merely denied
the opportunity to petition our Supreme Court for a discretionary appeal and
then chose to litigate PCRA claims unrelated to that failure would frustrate
legislative intent regarding restrictions on collateral review by granting PCRA
review beyond the express terms of the statute. Appellant received a direct
appeal and there was no barrier whatsoever to filing a PCRA petition within
one year of the date his judgment of sentence became final. Significantly,
Appellant sought PCRA review in 2018 and we affirmed the denial of all claims
aside from the PAA reinstatement. Applying the judicial “reset” rule at this
time would award Appellant a second bite at the apple. This outcome is
disfavored. Cf. Commonwealth v. Holmes, 79 A.3d 562, 578 (Pa. 2013)
(authorizing unitary review of direct appeal claims and collateral claims in
some circumstances; “Permitting broad and unitary review where there is a
waiver of PCRA rights does not raise the prospect of arbitrarily affording some
defendants two rounds of collateral review as of right, while denying that
option to other defendants[.]”)
Additionally, in Commonwealth v. Sepulveda, 144 A.3d 1270, 1280
(Pa. 2016), our Supreme Court held that when an appellate court remands to
the PCRA court for limited proceedings, the PCRA court “does not have
discretion to treat new claims raised by a PCRA petitioner as an amended
PCRA petition following remand … unless such amendment is expressly
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authorized in the remand order.” The Court added: “To hold otherwise would
allow ‘an extra round of collateral attack for certain defendants, unauthorized
by the General Assembly,’ which this Court has expressly condemned.” Id.
at 1280 n.21 (citing Holmes). Similarly, Appellant cannot receive an extra
round of collateral review.
Finally, we note that our constitution guarantees a right of appeal. Pa.
Const. Art. 5, § 9. In non-capital criminal cases, that appeal is to this Court.
See 42 Pa.C.S. § 742 (“The Superior Court shall have exclusive appellate
jurisdiction of all appeals from final orders of the courts of common pleas …
except such classes of appeals as are by any provision of this chapter within
the exclusive jurisdiction of the Supreme Court or the Commonwealth
Court.”); Id. § 722(4) (conferring jurisdiction in direct appeals from capital
cases with the Supreme Court). Thus, when a defendant does not receive
that appeal as of right, he or she loses their one guaranteed opportunity to
have trial court errors reviewed by the appellate courts.
However, there is no corresponding constitutional right to have the
Supreme Court hear an appeal from this Court’s criminal docket. See
Pa.R.A.P. 1114(a) (“[R]eview of a final order of the Superior Court ... is not a
matter of right, but of sound and judicial discretion, and an appeal will be
allowed only when there are special and important reasons therefor.”). This
standard generally does not encompass error correction. Commonwealth v.
King, 212 A.3d 507, 517 (Pa. 2019) (Donohue, J., concurring) (noting that
our Supreme Court’s review “generally is not focused on correcting errors
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committed by the lower courts, but on determining the substantive law to be
followed by courts analyzing similar issues in the future”). Accordingly, the
total loss of an appeal warrants “resetting” the clock due to the importance of
the right involved. See Commonwealth v. Halley, 870 A.2d 795, 801 (Pa.
2005) (“As indicated in Lantzy, the remedy for the deprivation of the
fundamental right to appeal is its restoration.”) (emphasis added).
In sum, we decline to “reset” the clock where, as here, the individual
received their constitutional right to an appeal and a full review of his initial
PCRA claims following the expiration of his direct appeal rights. 5
Finally, we will assume for purposes of our disposition that Appellant
could have raised claims involving counsel’s stewardship with respect to the
PAA proceeding. Because he has not done so and purports to raise issues
beyond the PAA proceedings, his petition is time-barred.
Orders affirmed.
Date: 3/12/2026
5 We emphasize that our holding does not establish a categorical rule. We do not foreclose the possibility that some other circumstance may justify treating the subsequent petition as a “first” petition such that legislative intent would not be frustrated. For example, we do not address a scenario where a petitioner seeks and/or receives only reinstatement of the right to file a PAA.
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