Com. v. Polanco, R.

• Court: Superior Court of Pennsylvania
• Decided: June 4, 2024
• Docket: 1691 MDA 2022
• Status: Unpublished

Opinion

J-S01045-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RAFAEL MORA POLANCO : : Appellant : No. 1691 MDA 2022

Appeal from the PCRA Order Entered November 10, 2022 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0002569-2015

BEFORE: PANELLA, P.J.E., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED: JUNE 4, 2024

Appellant, Rafael Mora Polanco, appeals from the November 10, 2022

order denying as untimely filed his serial petition for relief under the Post-

Conviction Relief Act, 42 Pa.C.S. § 9541 et seq. (the “PCRA”). We affirm the

order and grant leave for counsel to withdraw.

On direct appeal, this Court provided a detailed summary of the factual

circumstances of this case. See Commonwealth v. Polanco, 990 MDA 2017,

2018 WL 831851 at *1-*2 (Pa. Super., filed Feb. 13, 2018) (unpublished

memorandum decision) (the “Direct Appeal”). In sum, this case concerns:

… the shooting death of Jorge Marrero (“the victim”), in Hazelton, Pennsylvania, on the evening of June 11, 2015. … Specifically, the shooting was reported to police at 10:30 p.m., and the victim was pronounced dead at an area hospital at 11:00 p.m. Id. at 1. The Commonwealth’s subsequent investigation quickly revealed that Appellant killed the victim over a disputed cocaine transaction in ____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S01045-24

front of several eyewitnesses. Id. at 1-2. In connection with these events, Appellant was arrested and charged with criminal homicide.

Commonwealth v. Polanco, 90 MDA 2020, 2021 WL 929945, *1 (Pa.

Super., filed Mar. 11, 2021) (unpublished memorandum decision) (the “PCRA

Appeal”), appeal denied, 262 A.3d 1255 (Pa. 2021).

Appellant put forth an alibi defense, and testified that at the time of the

murder:

… he walked five to seven blocks from his mother’s house to a Turkey Hill to purchase cigarettes. He then obtained a ride from a former girlfriend … to the hospital due to a cough he was experiencing. Appellant did not know when this occurred. A loss prevention manager for Turkey Hill testified that a video from June 11, 2015 shows a vehicle identified by [Appellant’s former girlfriend] as hers, entering the Turkey Hill parking lot at 10:58 p.m.

Id. (quoting the Direct Appeal at 2). Appellant, however, had relied on an

incorrect time stamp – one hour earlier – on the video to support his alibi. Id.

at *2. It did not, because the former girlfriend testified that Appellant had

called her at 10:41 p.m. and that she resided approximately 10 to 15 minutes

away from the Turkey Hill where she met Appellant. Id. at *1. Her testimony

was supportive of the correct time for the video. The shooting took place

eleven minutes before Appellant called his former girlfriend. Id.

A jury convicted Appellant of murder in the first degree. The trial court

sentenced Appellant to a term of life imprisonment without the possibility of

parole. Appellant filed a timely direct appeal to this Court challenging the

sufficiency of the Commonwealth’s evidence. Id. On February 13, 2018, this

-2- J-S01045-24

Court affirmed Appellant's judgment of sentence. Direct Appeal at *5.

Appellant did not file a petition for allowance appeal with the Supreme Court

of Pennsylvania. PCRA Appeal at *1.

On February 8, 2019, Appellant filed a timely pro se petition for relief

under the PCRA. Counsel was appointed and filed a supplemental petition,

which alleged that trial counsel was ineffective for failing to realize and/or

advise Appellant that the time stamp on the video was incorrect, and, as a

result of his misapprehension, caused Appellant to reject a Commonwealth

offer to enter a guilty plea to murder in the third degree in exchange for a

sentence recommendation of 20 to 40 years’ imprisonment. After an

evidentiary hearing, at which trial counsel testified that he had alerted

Appellant to the inconsistent time stamp, the PCRA court denied the petition.

On March 11, 2021, this Court affirmed the PCRA court’s order denying relief.

PCRA Appeal at *2-*4.1

On August 24, 2022, Appellant filed pro se a second petition for PCRA

relief.2 On October 4, 2022, the PCRA court issued a Notice of Intention to ____________________________________________

1 On February 10, 2022, Appellant filed a Petition for a Writ of Habeas Corpus

in federal court, approximately 120 days after the statute of limitations had expired. It was dismissed as time barred. See Polanco v. Commonwealth, 2022 WL 16540079, *2-*4 (M.D. Pa, filed Oct. 28, 2022).

2 Appellant’s pro se second PCRA petition alleged the ineffective assistance of;

trial counsel for not having shown him documents produced in discovery, including the evidence that the date stamp on the video was incorrect; and direct appeal counsel for not having raised a weight of the evidence claim. In addition, Appellant alleged PCRA court error in making a credibility ruling in (Footnote Continued Next Page)

-3- J-S01045-24

Dismiss in accordance with Rule of Criminal Procedure 907 and served the

notice on Appellant the same date. Supplemental PCRA Court Opinion, 2.

Appellant sought an extension of time to amend his petition. On November

10, 2022, the PCRA court dismissed the petition because it was not timely

filed and lacked merit. Id.

Appellant filed a timely appeal of the order dismissing his serial petition.

Initially, he failed to file an ordered Rule 1925(b) Statement. See PCRA Court

Opinion, dated Jan. 27, 2023. While this appeal was pending, present counsel

was appointed to represent Appellant and permitted to file a Rule 1925(b)

Statement. See Supplemental PCRA Court Opinion, 2-3. Counsel raised two

claims in the Rule 1925(b) Statement. See Certified Record – S11, Statement

of Matters Complained of on Appeal, filed May 9, 2023. Subsequently, in

response to Appellant’s pro se motion for the removal of appointed counsel,

this Court issued an order dated on April 26, 2023, to the PCRA court to hold

____________________________________________

trial counsel’s favor, and alleged a putative newly-discovered evidence in concert with a Brady v. Maryland, 373 U.S. 83 (1963), claim against trial counsel for failing to disclose to Appellant discovery concerning the incorrect time stamp on the video that had been produced by the Commonwealth prior to his rejection of a plea deal. Appellant’s Second Motion for Post Conviction Relief, 3-6. Two of these allegations were encompassed within Appellant’s first PCRA petition for which a hearing was held. The allegation of direct appeal counsel’s ineffectiveness could have been raised in the first PCRA petition. Yet, Appellant did not allege first PCRA counsel’s ineffective assistance. The allegation of PCRA court error could have, and properly should have been raised, during the first PCRA appeal. As discussed, infra, Appellant did not assert an exception to the time bar and none of the allegations made would qualify as an exception under the circumstances of this case as all of the claims were ascertainable no later than the litigation of the first PCRA petition.

-4- J-S01045-24

an on-the-record inquiry pursuant to Commonwealth v. Grazier, 713 A.3d

81 (Pa. 1998), to determine whether Appellant wished to proceed with

appointed counsel or pro se. Superior Court Order, filed April 26, 2023. The

order stayed the briefing schedule. On June 6, 2023, the PCRA court reported

to this Court that after a Grazier hearing, Appellant had decided to proceed

with assigned counsel. See Response to Order, filed June 6, 2023.

Counsel filed a brief pursuant to Commonwealth v. Turner, 544 A.2d

927 (Pa. 1998), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.

1988) (en banc), addressing the two allegations of trial counsel’s ineffective

assistance: (1) “failing to properly advise [Appellant] with regard to a plea

deal”; and, (2) “in failing to properly prepare for trial in failing to disclose

discovery material” to Appellant. Rule 1925(b) Statement. Counsel explained

that Appellant’s second PCRA petition was facially untimely for which no

exception was apparent, there was no merit to Appellant’s previously litigated

claims, and filed a motion to withdraw as counsel. The motion to withdraw

was served on Appellant after an order issued by this Court. See

Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2006). To date,

Appellant has not filed a response to counsel’s letter.

Before we consider Appellant's issues, we must review counsel’s request

to withdraw. Pursuant to Turner/Finley, independent review of the record by

competent counsel is necessary before this Court will permit withdrawal on

collateral appeal. Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa.

2009), abrogated on other grounds by Commonwealth v. Bradley, 261

-5- J-S01045-24

A.3d 381 (Pa. 2021). Counsel is then required to submit a “no merit” brief (1)

detailing the nature and extent of review; (2) listing each issue the petitioner

wishes to have raised on review; and (3) explaining why the petitioner’s issues

are meritless. Id. The Court then conducts its own independent review of the

record to determine if the petition is meritless. Id. Counsel must also send to

the petitioner: “(1) a copy of the ‘no merit’ letter/brief; (2) a copy of counsel’s

petition to withdraw; and (3) a statement advising petitioner of the right to

proceed pro se or by new counsel.” Commonwealth v. Wrecks, 931 A.2d

717, 721 (Pa. Super. 2007).

Our review of the record discloses that Appellant’s counsel has complied

with each of the above requirements. Counsel discussed the two issues raised

on appeal and addressed the PCRA court’s analysis where appropriate.

Turner/Finley Brief, at 6-8. Based on this analysis, counsel concludes that

Appellant’s claims are time-barred and meritless. Id.

In addition, counsel sent Appellant copies of the Turner/Finley Brief,

and separately by letter his petition to withdraw in which he advised Appellant

of his rights in lieu of representation. See id. at 9-10; Petition to Withdraw as

Counsel, filed 10/26/2023; Response to Order - Letter to Appellant, filed

10/27/2023. Because counsel has complied with the Turner/Finley

requirements, we proceed with the analysis of Appellant’s claims based on our

independent review of the record.

We review an order denying a PCRA petition to determine whether the

PCRA court’s decision is supported by the evidence of record and free of legal

-6- J-S01045-24

error. Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa. Super. 2016).

“This Court grants great deference to the findings of the PCRA court if the

record contains any support for those findings.” Commonwealth v.

Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010).

We begin with the PCRA court’s finding that Appellant untimely filed his

PCRA Petition and failed to plead and prove an exception to the PCRA’s time

bar. Supplemental PCRA Court Opinion, 6/29/22, 4-5. Indeed, at no point

before the PCRA court did Appellant raise the possibility that an exception to

the PCRA time bar might apply. Id. As a result, the PCRA court determined it

was without jurisdiction to address the merits of Appellant’s petition. Id. at 5.

We agree.

The timeliness of a PCRA petition is a threshold jurisdictional matter that

must be addressed. Commonwealth v. Gandy, 38 A.3d 899, 902 (Pa. Super.

2012). The timeliness restrictions of the PCRA “are jurisdictional in nature and

are to be strictly construed.” Commonwealth v. Stokes, 959 A.2d 306, 309

(Pa. 2008). Whether a petition is timely raises a question of law. See

Commonwealth v. Fahy, 959 A.2d 312, 316 (Pa. 2008). Our standard of

review for a question of law is de novo and our scope of review plenary.

Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013). An untimely

petition renders this Court without jurisdiction to afford relief. Taylor, 65 A.3d

at 468; Gandy, 38 A.3d at 903.

Any petition for relief under the PCRA, including a second or subsequent

petition, “shall be filed within one year of the date on which the judgment of

-7- J-S01045-24

sentence becomes final.” 42 Pa.C.S. § 9545(b)(1).3 Here, Appellant’s sentence

became final on March 15, 2018 – the last day on which he could have sought

review by the Pennsylvania Supreme Court but did not do so. Thus, Appellant’s

serial petition, filed on August 24, 2022, was facially untimely by three years.

Petitioner had to plead and prove the applicability of one of the three

exceptions to the PCRA timeliness requirements in the petition. See 42 Pa.C.S.

§ 9545(b)(1); Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa. Super.

2008); Commonwealth v. Geer, 936 A.2d 1075, 1078–1079 (Pa. Super.

2007). Where “the petition is untimely and the petitioner has not pled and

proven an exception, the petition must be dismissed without a hearing

because Pennsylvania courts are without jurisdiction to consider the merits of

the petition.” Commonwealth v. Woods, 179 A.3d 37, 42 (Pa. Super. 2017);

Taylor, 65 A.3d at 468; Perrin, 947 A.2d at 1285.

In his serial petition, Appellant did not address the time bar, much less

invoke an exception to the timeliness requirements of the PCRA. He referenced

“newly discovered evidence” and asserted a putative Brady claim (alleged

against trial counsel, not the Commonwealth), which references were only to

evidence produced by the Commonwealth in discovery prior to trial and about

which Appellant either knew at trial or by the time he filed his first PCRA

petition. In any event, neither reference invoked an exception to the time bar,

nor could they satisfy the only plausibly relevant exception for newly ____________________________________________

3 A “second or subsequent petition must present a strong prima facie showing

that a miscarriage of justice may have occurred.” Stokes, 959 A.2d at 309.

-8- J-S01045-24

discovered evidence. See 42 Pa.C.S. § 9545(b)(1)(ii). Moreover, as both the

PCRA court and appointed counsel recognized, the specific claims raised were

previously litigated in the first PCRA proceeding and thereby not a proper basis

for relief. 42 Pa.C.S. § 9543(a)(3) (a petitioner must plead and prove, among

other things, that “the allegation of error has not been previously litigated or

waived”).

We note further that Appellant did not assert any exception to the time

bar to permit review of his serial petition in response to the court’s Rule 907

notice. The court’s notice specified the petition was untimely without an

applicable exception, among other reasons, for dismissal. Rule 907 Notice, 2.

Instead, Appellant sought an extension of time and leave to amend his

petition, which motion was filed on October 28, 2022. Within the motion, he

cited that the additional time would be used to amend the petition, seek relief

through a writ of habeas corpus, research and raise issues with the court, and

respond to the Rule 907 Notice. Appellant’s Motion for Extension of Time and

Leave to Amend, 2.

Even if we were to assume, despite his silence, that Appellant intended

to assert an exception to the time bar in a future amendment, counsel did not

preserve that issue for appeal. Taylor, 65 A.3d at 468. Additionally, a PCRA

court’s decision to dismiss an untimely petition, even absent directing an

amendment, would not warrant reversal where our review indicates that the

claim does not fall within a timeliness exception. Id.; Commonwealth v.

Hromek, 232 A.3d 881, 885 (Pa. Super. 2020).

-9- J-S01045-24

As the Pennsylvania Supreme Court has explained, the decision to grant

leave to amend a PCRA petition is an act of discretion:

Pursuant to this Rule, PCRA courts are invested with the discretion to permit amendment of a pending, timely-filed post- conviction petition which must be exercised consistently with the command of Rule 905(A) that amendment should be freely allowed to achieve substantial justice. Adherence to this liberal standard for amendment is essential because criminal defendants may have just one opportunity to pursue collateral relief in state court.

Commonwealth v. Crispell, 193 A.3d 919, 930 (Pa. 2018) (citation and

internal quotation marks omitted). See also Commonwealth v. Porter, 35

A.3d 4, 12 (Pa. 2012) (leave to amend must be sought and obtained, and

hence, amendments are not “self-authorizing”). Here, Appellant’s petition was

a facially untimely serial petition which did not have any arguably meritorious

claims to present based on the existing record. Because amendment of the

petition would only serve to delay resolution, this Court would conclude, even

if the question had been raised, that the PCRA court had not abused its

discretion. See, e.g., Commonwealth v. Williams, 732 A.2d 1167, 1191-

92 (Pa. 1999) (discerning no abuse of the PCRA court’s discretion in denying

leave to amend a petition “[g]iven the generality of th[e] claim and the timing

of its assertion” after the PCRA court indicated its intent to dismiss the

petition).

Application to withdraw granted. Order affirmed.

- 10 - J-S01045-24

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 06/04/2024

- 11 -