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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
REGINALD WORTHY, : No. 775 WDA 2013
:
Appellant :
Appeal from the Order, March 6, 2013,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0009966-1987
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND ALLEN, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 14, 2014
This is a pro se appeal of an order dated March 6, 2013, in the Court
of Common Pleas of Allegheny County that dismissed appellant’s first
petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546. Finding no error, we will affirm.
Appellant entered a general plea to criminal homicide on February 24,
1988, for the murder of an unarmed security guard during the robbery of a
convenience store. He was found guilty of first degree murder after a
subsequent degree of guilt hearing, and was sentenced to life imprisonment
on March 8, 1989. Post-trial motions were filed and denied on May 22,
1989. No direct appeal was taken.
On August 9, 2012, appellant filed the subject PCRA petition, and
Charles R. Pass, III, Esq., was appointed to represent him. On November 5,
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2012, Attorney Pass filed a motion to withdraw as counsel and a “no-merit
letter” pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
Attorney Pass asserted the petition was untimely and not subject to any
exceptions under the PCRA. By order dated February 12, 2013, and
docketed on February 21, 2013, the PCRA court granted the motion to
withdraw and gave notice of intention to dismiss the PCRA petition in
accordance with Pa.R.Crim.P. 907, 42 Pa.C.S.A. The PCRA petition was
dismissed on March 7, 2013. This appeal followed in which appellant raises
several claims of PCRA counsel’s ineffectiveness.1
Counsel may withdraw at any stage of collateral proceedings if, in the
exercise of his or her professional judgment, counsel determines that the
issues raised in those proceedings are without merit, and if the court concurs
with counsel’s assessment. Commonwealth v. Bishop, 645 A.2d 274, 275
(Pa.Super. 1994). However, before PCRA counsel may withdraw, he must
provide the PCRA petitioner with a copy of the petition to withdraw that
includes a copy of both the no-merit letter and a statement advising the
petitioner that, in the event the PCRA court grants the petition to withdraw,
the petitioner has the right to proceed pro se, or with the assistance of
privately retained counsel. Commonwealth v. Widgins, 29 A.3d 816, 818
1
Appellant’s concise statement of errors complained of on appeal lists three
issues. Appellant’s pro se brief raises five issues two of which were not
preserved.
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(Pa.Super. 2011). Instantly, our review of the record indicates that both
PCRA counsel and the PCRA court have fulfilled their legal obligations
pursuant to Turner/Finley.
Our standard of review for an order denying post-conviction relief is
whether the record supports the PCRA court’s determination, and whether
the PCRA court’s determination is free of legal error. Commonwealth v.
Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings
will not be disturbed unless there is no support for the findings in the
certified record. Id. A PCRA petition must be filed within one year of the
date that the judgment of sentence becomes final. 42 Pa.C.S.A.
§ 9545(b)(1). This time requirement is mandatory and jurisdictional in
nature, and the court may not ignore it in order to reach the merits of the
petition. Commonwealth v. Taylor, 933 A.2d 1035, 1038 (Pa.Super.
2007), appeal denied, 597 Pa. 715, 951 A.2d 1163 (2008).
Here, appellant had until January 16, 1997 to file a timely PCRA
petition pursuant to a grace proviso provided for first PCRA petitions under
the PCRA. See Commonwealth v. Alcorn, 703 A.2d 1054 (Pa.Super.
1997), appeal denied, 724 A.2d 348 (Pa. 1998). The instant petition, filed
August 9, 2012, is manifestly untimely and cannot be reviewed unless
appellant invokes a valid exception to the time bar of the PCRA. See
42 Pa.C.S.A. § 9545(b)(1)(i-iii). Appellant specifically invoked the
after-discovered facts exception asserting he was incompetent at the time of
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trial and “only recently” regained his competence. Appellant relies on the
case of Commonwealth v. Cruz, 852 A.2d 287 (Pa. 2003). In Cruz,
appellant shot and killed three people and injured four others. Appellant
then attempted suicide and shot himself in the head. Id. at 288. The
Pennsylvania Supreme Court found that “mental incompetence at the
relevant times, if proven, may satisfy the requirements of
Section 9545(b)(1)(ii), in which case, the claims defaulted by operation of
that incompetence may be entertained.” Id. (emphasis in original).
In Commonwealth v. Liebensperger, 904 A.2d 40 (Pa.Super.
2006), this court further analyzed the Cruz decision. We reasoned:
Unlike the appellant in Cruz, whose defense
counsel admitted he could not meaningfully
participate in his own defense, Appellant was
deemed able to cooperate with his attorney in his
own defense by Dr. Rotenberg. Also unlike the
appellant in Cruz, who was at no point deemed
competent to stand trial, Appellant was determined
to be competent by Dr. Rotenberg prior to the guilty
plea and sentencing. The type of chronic mental
illness suffered by Appellant is fundamentally
different than the effects and circumstances
surrounding the appellant’s indisputable physical
injury to his brain in Cruz, where the self-inflicted
gun shot wound resulted in impaired brain function
such that, during the several years preceding his
appeal, the appellant was unable to understand the
facts of his case, and could only file a PCRA petition
years later, after the injury to his brain had healed.
Because the record in Cruz indicated that the injury
suffered by the appellant could heal over time, he
may have been able to establish that he filed his
petition within the sixty day requirement for
exceptions to the PCRA time bar. Cruz, supra, at
329, 852 A.2d at 288; 42 Pa.C.S.A. § 9545(b)(2).
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Accordingly, the Court in Cruz remanded the matter
for a limited hearing where the appellant was
afforded the opportunity to prove that he was and
remained incompetent throughout the period during
which his right to file a PCRA petition had lapsed,
and the appellant’s current petition was filed within
sixty days of his return to competence.
¶ Comparatively, Appellant in the instant case
has offered nothing to indicate when, if ever, the
crucial point in time at which he passed from
incompetence to competence may have actually
occurred, discussing only his chronic mental illness.
Appellant has failed to offer any evidence or
suggested reasons as to the cause of his lapse into
incompetence after Dr. Rotenberg’s evaluation.
Similarly, Appellant has not asserted in his petition
even an estimate of the timing or duration of the
periods of incompetence he allegedly suffered after
his evaluation. Further, Appellant has made no
assertions, and there is nothing in the record to
indicate, that his condition is of the type that may
have recently improved or changed so that he has
only recently returned to the degree of competence
required to file a PCRA petition. Since Appellant has
not provided the aforementioned evidence or proofs,
he is unable to establish that he filed his petition
within the sixty-day requirement of the PCRA, or that
he requires a hearing to determine if he has met this
requirement. Therefore, Appellant has failed to meet
his pleading requirements under the PCRA.
42 Pa.C.S.A. § 9545(b).
Id. at 48.
Instantly, the record indicates appellant had a bullet lodged in his
brain at the time of trial,2 and while one doctor “more or less” opined that
appellant might seek to be found guilty but mentally ill, at no time was
2
Defense counsel indicated this injury was the result of an accident. (Id. at
5.)
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appellant found incompetent to stand trial or to be sentenced. (Notes of
testimony, 3/8/89 at 5-6.) The record shows appellant sent a letter to the
trial court judge dated October 22, 1998, stating, “I have filed a Petition for
Notes of Testimony and Sentencing Note, in order to effectuate a collateral
appeal.” (Certified record, Document #A32.) On November 24, 1998, the
trial court judge entered an order directing the requested records be
provided to appellant.
In his pro se PCRA petition, appellant stated:
. . . after 20 years of suffering numerous mental
disorders, and medical treatment for the recorded
mental disorders, as recorded by the Mental Health
Department as S.C.I. Cresson, PA, Petitioner gained
enough competency to address Attorney Thomassey;
about his appeal, and on September 23, 2010,
Attorney Thomassey finally responded . . .
Document #26 at 7. Appellant acknowledges an improvement in his
condition at some point prior to September 23, 2010. Appellant proceeded
to file a motion for transcripts on November 19, 2010. Yet, the record
indicates appellant’s pro se PCRA petition was filed on August 9, 2012.3
Clearly, appellant failed to file his PCRA petition within 60 days of returning
to competence. See 42 Pa.C.S.A. § 9545(b)(2).
The PCRA court addressed appellant’s competency as follows:
[T]he record contradicts any assertion that
[appellant] suffered from a period of incompetency
since his trial which rendered the facts upon which
3
According to Attorney Pass, a pro se filing on March 4, 2011, does not
appear in the Department of Court Records’ files. (No-merit brief at 4.)
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his substantive PCRA claims would be based
unknowable to him. [Appellant] repeatedly asserted
that he intended to file a PCRA petition, clearly
cognizant of his right to do so, and yet failed to file a
timely petition.
Finally, even assuming that [appellant] was
suffering from some degree of incompetency in 1989
and 1998, despite stating his intention to file PCRA
petitions, his allegations in the instant petition and
his letter to Attorney Thomassey sometime before
June 23, 2010, as referred to above, establish a date
prior thereto when he regained his competency. As
required by Cruz, [appellant] was required to file a
PCRA petition within 60 days of the time when he
became competent. [Appellant] has acknowledged
that he “gained enough competency to address
Attorney Thomassey, about his appeal sometime
before June 23, 2010 but fails to state any specific
date. Even assuming that the date was June 22,
2010, which is unlikely given that their
communication was by mail, [appellant] would have
had to have filed his PCRA Petition on or before
August 22, 2010. The earliest date that any filing is
recorded after June 22, 2010 is November 19, 2010,
which is the Motion for Transcripts, which does not
constitute a PCRA Petition, and would be untimely in
any event. Further, assuming that [appellant]
attempted to file a PCRA petition, which was not
recorded, as referred to in his letter of March 1,
2011 to the Department of Court Records, any such
Petition would likewise have been untimely.
[Appellant] states in his letter that it was filed
“approximately four months ago” which would have
placed the filing of this alleged PCRA petition on
approximately November 1, 2010, prior to his third
request for the trial transcripts, which was recorded
in the docket on November 19, 2010.
Trial court opinion, 1/9/14 at 9-10.
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Based on the foregoing, appellant’s PCRA petition was untimely, and
the PCRA court was without jurisdiction to consider appellant’s substantive
claims.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2014
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