Com. v. Rodriguez, F.

• Court: Superior Court of Pennsylvania
• Decided: February 10, 2025
• Docket: 1102 EDA 2024
• Status: Unpublished

Opinion

J-S47035-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : FRANKIE RODRIGUEZ : : Appellant : No. 1102 EDA 2024

Appeal from the PCRA Order Entered March 22, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1009231-2005

BEFORE: KUNSELMAN, J., SULLIVAN, J., and BECK, J.

MEMORANDUM BY BECK, J.: FILED FEBRUARY 10, 2025

Frankie Rodriguez (“Rodriguez”) appeals pro se from the order entered

by the Philadelphia County Court of Common Pleas dismissing his second

petition for relief under the Post Conviction Relief Act (“PCRA”).1 Because

Rodriguez filed an untimely PCRA petition and failed to establish an exception

to the statutory time-bar, we affirm.

In 2007, a jury convicted Rodriguez of first-degree murder and

possessing an instrument of crime. The trial court sentenced Rodriguez to an

aggregate term of life in prison without parole. This Court affirmed

Rodriguez’s judgment of sentence, and the Supreme Court of Pennsylvania

denied allowance of appeal on March 9, 2011. See Commonwealth v.

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1 42 Pa.C.S. §§ 9541-9546. J-S47035-24

Rodriguez, 846 EDA 2008 (Pa. Super. Aug. 18, 2010) (non-precedential

decision), appeal denied, 20 A.3d 486 (Pa. 2011).

In 2012, Rodriguez filed a timely PCRA petition. The PCRA court

eventually denied that petition in 2019. This Court affirmed, and our Supreme

Court denied allowance of appeal. See Commonwealth v. Rodriguez, 3181

EDA 2019 (Pa. Super. Dec. 15, 2020) (non-precedential decision), appeal

denied, 149 EAL 2021 (Pa. 2021). On June 15, 2022, Rodriguez filed the

instant PCRA petition. The PCRA court issued notice of its intent to dismiss

the petition pursuant to Pa.R.Crim.P. 907, and subsequently dismissed the

petition as untimely. Rodriguez filed a timely appeal.

“Crucial to the determination of any PCRA appeal is the timeliness of the

underlying petition. Thus, we must first determine whether the instant PCRA

petition was timely filed.” Commonwealth v. Brown, 141 A.3d 491, 499

(Pa. Super. 2016) (quotation marks and citation omitted). “The timeliness

requirement for PCRA petitions is mandatory and jurisdictional in nature, and

the court may not ignore it in order to reach the merits of the petition.” Id.

(quotation marks and citation omitted); see also Commonwealth v.

Fantauzzi, 275 A.3d 986, 994 (Pa. Super. 2022) (“[T]he timeliness of a PCRA

petition is jurisdictional . . . if the petition is untimely, courts lack jurisdiction

over the petition and cannot grant relief.”) (citations omitted). “As the

timeliness of a PCRA petition is a question of law, our standard of review is de

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novo and our scope of review is plenary.” Commonwealth v. Callahan, 101

A.3d 118, 121 (Pa. Super. 2014) (citation omitted).

All PCRA petitions, “including [] second or subsequent petition[s],” must

be filed within one year of the date when the judgment of sentence becomes

final, unless the petitioner can plead and prove an exception to that general

timeliness requirement. 42 Pa.C.S. § 9545(b)(1). The exceptions to the one-

year deadline are:

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

Id. § 9545(b)(1)(i-iii). Additionally, a PCRA petition which relies on one of

these three exceptions must be “filed within one year of the date the claim

could have been presented.” Id. § 9545(b)(2).

Rodriguez’s judgment of sentence became final in 2011. Id.

§ 9545(b)(3) (“[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

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the review.”); Sup. Ct. R. 13(1) (“A petition for a writ of certiorari seeking

review of a judgment of a lower state court that is subject to discretionary

review by the state court of last resort is timely when it is filed with the Clerk

within 90 days after entry of the order denying discretionary review.”).

Because Rodriguez filed the instant PCRA petition on June 15, 2022, it is

manifestly untimely.2

Rodriguez does not plead or prove any of the timeliness exceptions.

Instead, he baldly argues that the PCRA court judge, the Honorable Scott

DiClaudio, improperly dismissed the petition as untimely because of his bias

and partiality. See Rodriguez’s Brief at 15-16, 18. Specifically, Rodriguez

alleges that Judge DiClaudio should have recused himself based upon his prior

representation of Rodriguez in an unrelated criminal matter.3 See id. at 18.

Rodriguez’s claims of bias do not fall under any of the PCRA time-bar

exceptions.4

2 Rodriguez argues that his second PCRA petition was timely because it was

filed within one year of the date on which the denial of his first PCRA petition became final. See Rodriguez’s Brief at 16. Rodriguez misconstrues the statute: the one-year clock begins to run on a subsequent PCRA petition when the initial judgment of sentence becomes final, not when decision on the first PCRA petition becomes final. See 42 Pa.C.S. § 9545(b)(1). The statute does not provide a mechanism for serial PCRA filers to extend the one-year period indefinitely by filing new petitions. 3 Rodriguez fails to offer any evidence showing that Judge DiClaudio did in

fact represent him or even identify the matter in which the representation allegedly occurred. 4 We note that in the untimely PCRA petition, Rodriguez alleged, among other

things, that he received ineffective assistance of counsel, and that a new (Footnote Continued Next Page)

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Because the instant PCRA petition was untimely filed, and Rodriguez

failed to plead and prove that one of the exceptions under section

9545(b)(1)(i-iii) applies, this Court lacks jurisdiction to consider the merits of

his claims. See Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa.

Super. 2007) (“Without jurisdiction, we simply do not have the legal authority

to address the substantive claims.”) (citation omitted).

Order affirmed.

Date: 2/10/2025

eyewitness who was previously unavailable at trial is now able to testify on his behalf. See, e.g., PCRA Petition, 2/20/2024, at 6, 10, 11, 15. Rodriguez has waived these arguments by failing to raise them in his appellate brief. See Commonwealth v. Bennett, 517 A.2d 1248, 1250 n.4 (Pa. 1986) (stating issues raised in PCRA petition and not presented on appeal are deemed abandoned).

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