Com. v. Burgos, N. (memorandum)
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J-S31033-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. NAZARIO BURGOS, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 2916 EDA 2013 Appeal from the PCRA Order entered on October 4, 2013 in the Court of Common Pleas of Philadelphia County, Criminal Division, No. CP-51-CR-0507951-1995 BEFORE: BOWES, SHOGAN and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED JUNE 19, 2014 pro se, from the Order dismissing his fourth Petition for relief pursuant to the Post Conviction Relief Act See 42 Pa.C.S.A. §§ 9541-9546. We affirm. Burgos was convicted of first-degree murder and sentenced to life in prison on May 20, 1996. No direct appeal was filed. On April 13, 2012, Burgos filed the instant PCRA Petition, claiming that he had obtained exculpatory evidence. After appropriate Notice, the PCRA court dismissed timely Notice of Appeal. On appeal, Burgos raises the following questions for our review: 1. [evidence] claim is only being used for -discovered impeachment J-S31033-14 purposes[,] are supported by the record and free of legal error?[;] 2. Whether []: (1) the lower court committed, inter alia, and timely filed, after-discovered claim, [and] therefore, [it] continues to retain original jurisdiction over the matter, 42 Pa.C.S.A. § 9545(a); and (2) if the instant claim creates factual changes that involve[s] a genuine material issue for record and [are] in legal error with regard to the afterdiscovered [evidence] claim it did address? Brief for Appellant at vii. We review an order dismissing a petition under the PCRA in the light most favorable to the Commonwealth. Commonwealth v. Ford, 44 A.3d 11 Id. Id. (citation omitted). 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 Id. jurisdictional in nature and a court may not address the merits raised if the PCRA petition was not timely filed. Commonwealth v. Albrecht, 944 A.2d 1091, 1093 (Pa. 2010). -2- J-S31033-14 Burgos had until June 20, 1997, to file the instant PCRA Petition, but did not untimely under the PCRA. Pennsylvania courts may consider an untimely petition if the appellant can plead and prove one of three exceptions set forth under 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any PCRA petition invoking one of these exceptions Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094. In the instant case, Burgos invokes the newly discovered evidence exception set forth at 42 Pa.C.S.A. § 9545(b)(i). Brief for Appellant at 2. Burgos claims that Terry Singletary is an eyewitness whose proposed testimony will exonerate him. Id. at 7. However, Burgos has failed to demonstrate that the eyewitness testimony could not have been obtained through the exercise of due diligence at the time of his trial. Indeed, Burgos fails to state the reason why he did not previously question or investigate the eyewitness. Thus, Burgos has failed to invoke the newly discovered exception to the timeliness requirement. Because Burgos has failed to plead and prove any exception to the ourth PCRA Petition as untimely. Order affirmed. -3- J-S31033-14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/19/2014 -4-
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