J-S57012-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
HARRY WOLDSMIT, :
:
Appellant : No. 2757 EDA 2013
Appeal from the PCRA Order September 12, 2013,
Court of Common Pleas, Philadelphia County,
Criminal Division at No(s): CP-51-CR-0205021-2006
and CP-51-CR-1005951-2005
BEFORE: DONOHUE, MUNDY and STABILE, JJ.
MEMORANDUM BY DONOHUE, J.: FILED OCTOBER 10, 2014
Harry Woldsmit (“Woldsmit”) appeals pro se from the September 12,
2013 order entered by the Philadelphia County Court of Common Pleas
dismissing his second petition filed pursuant to the Post Conviction Relief
Act, 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”), as untimely. We affirm.
The facts of the case, summarized by the trial court in a prior written
opinion pursuant to Pa.R.A.P. 1925(a), are as follows:
On two different occasions, [Woldsmit], while on
parole, drove to Kensington Avenue to pick up young
women who were willing to perform oral sex in
exchange for money.
On August 22, 2005, [Woldsmit] made an agreement
with the victim […] to receive oral sex in exchange
for $60. [Woldsmit] drove the victim to a location
near Venango and Richmond and the victim asked
him for her money. [Woldsmit] held a knife to the
victim’s throat and pulled down the victim’s pants.
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[Woldsmit] then began vaginally penetrating the
victim and eventually digitally penetrating the
victim’s anus. After [Woldsmit] was finished
attacking [the victim], he told her he was a police
officer and that he would kill her if necessary. After
more threats, [Woldsmit] drove [the victim] a short
distance and let her out of the vehicle. She had to
exit through the driver’s side door because the
passenger side door could not be opened from the
inside. [The victim] made a photo identification of
[Woldsmit] to Detective Norma Serrano at the
Special Victim’s Unit approximately two and a half
weeks later.
On September 2, 2005, [Woldsmit] coaxed his
second victim […] into his car and promised to pay
her $40 in exchange for oral sex. While in the back
seat, [Woldsmit] took out a knife and held it against
[the victim’s] neck. [Woldsmit] then demanded
intercourse and threatened to kill [the victim] if she
did not comply. [The victim] attempted to fight off
[Woldsmit] and during the struggle, [Woldsmit]
slightly, but not fully, penetrated her vagina.
Eventually [the victim] was able to escape through
the driver’s side door and flag down a passing
motorist.
On July 18, 2006, both victims appeared in court to
testify against [Woldsmit] at a scheduled
consolidated jury trial. The two victims had never
met each other prior to entering the courtroom on
that day. [Woldsmit] then agreed to enter [a] guilty
plea. A lengthy factual basis for the two incidents
which were of course remarkably similar, was placed
on the record with both victims in the court and
listening. After [Woldsmit] entered his guilty plea,
the Commonwealth requested that the court advise
[Woldsmit] of his rights to withdraw a guilty plea,
and also about the ‘issue of substantial prejudice.’
[The trial court] then responded ‘I normally don’t like
to put something out there that someone is not
thinking about,’ to which [Woldsmit] quipped ‘I
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already thought about it. [The district attorney] is
not that quick.’
Trial Court Opinion, 6/30/08, at 3-5 (record citations omitted).
On July 18, 2006, Woldsmit pled guilty to two counts each of rape and
terroristic threats and one count each of aggravated indecent assault and
impersonating a public servant.1 Although represented by counsel, on
September 8, 2006, Woldsmit filed a pro se motion to withdraw his guilty
plea, claiming therein, in relevant part, that he was innocent of the charges;
that his plea was not knowingly and intelligently entered because he “was
suffering from the effects of his psychotropic medication, depression, and
the guilty plea was the product of his deteriorated physical and mental
condition”; and that his attorney was not willing to help him. Motion to
Withdraw Guilty Plea, 9/8/06.
The Commonwealth filed a response in opposition to the motion,
asserting that Woldsmit did not satisfy his burden of showing that there was
a fair and just reason to permit him to withdraw his plea. The
Commonwealth further stated that it would suffer substantial prejudice if the
trial court permitted him to withdraw his plea, as it was unable to locate the
two complainants, both of whom had drug addiction problems and worked as
prostitutes. The Commonwealth indicated that Woldsmit was aware of the
problems the Commonwealth had locating one of the complainants for trial,
1
18 Pa.C.S.A. §§ 3121, 2706, 3125, 4912.
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which led to the issuance of a bench warrant for her arrest and an initial
dismissal of the charges against Woldsmit relating to her assault.
The trial court held three days of hearings on the motion. At those
hearings, the Commonwealth presented evidence regarding its claim of
substantial prejudice. It further presented recordings of phone
conversations between Woldsmit and his now-ex-wife while Woldsmit was
incarcerated, during which Woldsmit admitted to raping one of the victims.
An issue arose surrounding the Commonwealth’s role in Woldsmit’s ex-wife
procuring Woldsmit’s confession on the taped recordings. The prosecutor
informed that trial court that Woldsmit’s ex-wife contacted him and let him
know what Woldsmit was saying on the phone. The prosecutor stated that
he informed the ex-wife that all calls made and received by inmates were
recorded. The prosecutor asked her if she wished to have Woldsmit’s access
to contact her shut off, to which she replied that she did not want that at
that time.
Unconvinced that Woldsmit’s ex-wife was acting at the
Commonwealth’s behest during these conversations, the trial court denied
Woldsmit’s request to withdraw his guilty plea on October 20, 2006.
Specifically, the trial court found “that the mere assertion of innocence under
the facts and circumstances of this case does not establish a just cause or
reason to withdraw the plea,” and that the Commonwealth would be
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prejudiced by permitting Woldsmit to withdraw his plea. N.T., 10/20/06, at
21-22.
On January 18, 2006, the trial court sentenced Woldsmit to 20 to 40
years of imprisonment. The trial court further found that he met the criteria
for classification as a sexually violent predator.
Woldsmit appealed his judgment of sentence and this Court affirmed
on February 3, 2009. Woldsmit did not file a petition for allowance of appeal
with the Pennsylvania Supreme Court.
On January 27, 2010, Woldsmit filed a timely pro se PCRA petition. He
filed a second pro se petition on April 8, 2010, which the PCRA court
accepted as an amended petition. The PCRA court appointed counsel, who
filed a Turner/Finley2 “no merit” letter and a request to withdraw. On July
1, 2011, the PCRA court dismissed the pro se petitions and granted counsel
permission to withdraw.
Woldsmit filed a timely notice of appeal, but did not comply with the
PCRA court’s order for a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). This Court ultimately dismissed the appeal
on October 17, 2012, as Woldsmit failed to file an appellate brief.
On October 10, 2012, a week prior to the dismissal of his PCRA
appeal, Woldsmit filed the instant pro se PCRA petition. He asserted that the
2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988)
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trial court denied his request to withdraw his guilty plea based on his
admission to his ex-wife over the phone from prison that he was guilty, and
that he has new evidence that his ex-wife and the Philadelphia District
Attorney’s Office “set the whole phone call up.” PCRA Petition, 10/10/12, at
3. He appended to his petition several Facebook messages from his ex-wife
to someone named Maria Laura Knight Woldsmit, wherein his ex-wife states
that she “set him up.” Id. at Exhibit B.
On June 19, 2013, the PCRA court issued notice of its intention to
dismiss Woldsmit’s petition without a hearing. Woldsmit did not file a
response. The PCRA court dismissed the PCRA petition on September 12,
2013. Woldsmit filed a notice of appeal that same day.
On appeal, Woldsmit raises the following issues for our review:
A. Did the trial court err in denying [Woldsmit]’s
request for relief through the P.C.R.A.?
1. Did [the] trial judge violate [Woldsmit]’s right to
present [an] alibi-witness [sic]?
2. Did [the] trial judge violate ex parte
communications rules?
3. Has [the] trial judge abused his discretion?
B. Did the Commonwealth violate [Woldsmit]’s due
process rights?
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Woldsmit’s Brief at 6.3
We review the denial of a PCRA petition on timeliness grounds
according to the following standard:
In reviewing the denial of PCRA relief, we examine
whether the PCRA court’s determination is supported
by the record and free of legal error. The PCRA
timeliness requirement, however, is mandatory and
jurisdictional in nature. The court cannot ignore a
petition’s untimeliness and reach the merits of the
petition. Section 9545(b)(1) requires a petitioner to
file a PCRA petition within one year of the date the
judgment [became] final.
Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013) (internal
citations and quotations omitted). “[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.A. § 9545(b)(3).
The judgment of sentence in the case at bar became final on March 5,
2009 – 30 days after this Court affirmed Woldsmit’s judgment of sentence
on direct appeal. See Pa.R.A.P. 1113(a) (A petition for allowance of appeal
to the Pennsylvania Supreme Court must be filed within 30 days of the entry
of the Superior Court order to be reviewed.). Thus, the instant PCRA
petition, filed on October 10, 2012, is facially untimely.
3
Woldsmit’s appellate brief is not paginated. For ease of reference, we
have assigned numbers to each page, beginning with the first page after the
cover as page 1.
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Section 9545(b)(1) provides three statutory exceptions to the
timeliness provisions that allow for very limited circumstances under which
the late filing of a PCRA petition will be excused:
(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.
42 Pa.C.S.A. § 9545(b)(1). “Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S.A. § 9545(b)(2).
The PCRA court attempted to give Woldsmit the benefit of the second
exception – commonly known as the newly discovered fact exception to the
timeliness requirements. See PCRA Court Opinion, 6/19/13, at 3, 7. The
PCRA court concluded, in relevant part, that the fact that Woldsmit’s ex-wife
set Woldsmit up to confess his guilt over the phone in prison was known in
2006. Id. at 8. The PCRA court goes on to say that the motion to withdraw
his plea was not denied based upon the phone call, but was really based
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upon the prejudice that would befall the Commonwealth if Woldsmit
withdrew his plea. Id.
In his appellate brief, Woldsmit argues against the Facebook
messages being considered as a newly discovered fact and chastises the
PCRA court for referring to this as new evidence. Woldsmit’s Brief at 18-19.
Woldsmit appears to agree that the PCRA court was aware in 2006 that his
wife set him up. Woldsmit details how the prosecutor admitted on the
record that he was aware that Woldsmit’s wife was speaking with Woldsmit
about the charges and that the prosecutor informed her that the calls were
being recorded. Id. at 19. The prosecutor stated at the hearing that
Woldsmit’s ex-wife was acting only with the prosecutor’s “knowledge,” and
was not fulfilling any request he made for her to question Woldsmit about
anything. Id. (citing PCRA Court Opinion, 6/19/13, at 7); see N.T.,
10/20/06, at 7. According to Woldsmit, “[Stevie] Wonder could see that
that was a request [by the prosecutor] for help.” Woldsmit’s Brief at 19.
Our courts have previously explained the newly discovered fact
exception as follows:
Exception (b)(1)(ii) requires petitioner to allege and
prove that there were ‘facts’ that were ‘unknown’ to
him and that he could not have ascertained those
facts by the exercise of ‘due diligence.’ The focus of
the exception is on the newly discovered facts, not
on a newly discovered or newly willing source for
previously known facts.
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Commonwealth v. Johnston, 42 A.3d 1120, 1128 (Pa. Super. 2012)
(quoting Commonwealth v. Marshall, 947 A.2d 714, 720 (2008)) (internal
citations and quotations omitted; emphasis supplied).
By Woldsmit’s own admission, there was nothing “new” about the
information contained in the Facebook messages. The messages were
simply a new source indicating what was already known in 2006 – that
Woldsmit’s ex-wife set him up to confess his guilt. Moreover, contrary to
Woldsmit’s claim, these messages are not proof that the Commonwealth
enlisted Woldsmit’s ex-wife to set Woldsmit up to admit that he was guilty –
they do not reveal any collaboration or collusion between the prosecutor and
Woldsmit’s ex-wife, only that Woldsmit’s ex-wife set Woldsmit up to admit
his guilt over the phone while in prison. Thus, this evidence does not
constitute a newly discovered fact.
As Woldsmit does not satisfy any of the exceptions to the PCRA’s
timeliness requirements, this Court does not have jurisdiction to address the
merits of the issues raised on appeal. As the PCRA court likewise was
without jurisdiction to entertain the merits of Woldsmit’s PCRA petition, we
find no error in its dismissal of his petition without a hearing on timeliness
grounds.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/2014
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Com. v. Woldsmit, H.
Combined Opinion