J-S05003-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
HOBART LEE WHITT, :
:
Appellant : No. 1234 WDA 2013
Appeal from the PCRA Order June 18, 2013,
Court of Common Pleas, Allegheny County,
Criminal Division at No. CP-02-CR-0012268-1993
BEFORE: DONOHUE, SHOGAN and STABILE, JJ.
MEMORANDUM BY DONOHUE, J.: FILED MARCH 03, 2015
Appellant, Hobart Lee Whitt (“Whitt”), appeals the order entered on
June 18, 2013 in the Allegheny County Court of Common Pleas, dismissing
his second petition for relief pursuant to the Post-Conviction Relief Act
(“PCRA”).1 For the reasons set forth herein, we affirm the PCRA court’s
order.
A brief summary of the relevant facts and procedural history is as
follows. On April 21, 1994, a jury found Whitt guilty of one count of rape.
On June 1, 1994, the trial court sentenced Whitt to six to fifteen years of
incarceration. Whitt filed a timely appeal on June 23, 1994. After a panel of
this Court affirmed the trial court’s judgment of sentence on July 19, 1995,
Whitt filed a petition for allowance of appeal to our Supreme Court, which
1
42 Pa.C.S.A. §§ 9541-46.
J-S05003-15
the court denied on December 19, 1995. On July 23, 1996, Whitt timely
filed his first PCRA petition, which the PCRA court ultimately dismissed on
April 20, 2000. Whitt did not seek an appeal.
On June 18, 2012, Whitt filed the instant PCRA petition, claiming
ineffective assistance of counsel, insufficiency of evidence, and that the trial
court imposed an illegal sentence. On June 29, 2012, the PCRA court
appointed Scott Coffey (“Attorney Coffey”) to represent Whitt. After
reviewing Whitt’s petition, Attorney Coffey determined that the petition was
time barred and that no meritorious issues existed. Attorney Coffey
thereafter filed a motion to withdraw as PCRA counsel on October 2, 2012.
The PCRA court granted Attorney Coffey’s petition to withdraw on December
18, 2012.
On June 18, 2013, the PCRA court dismissed Whitt’s PCRA petition.
Whitt timely filed an appeal to this Court on July 12, 2013.2 On appeal,
Whitt raises the following issues for our review:
1. Was there relevancy of time-bar offered by courts
when record of negligence and obstruction by
government officials exists through omissions/lost
filings of petitions, motions, statements[?]
2. Did [the] court err to protect the witness stand
from false testimony offered by commonwealth
witness[?]
2
Whitt filed a duplicate notice of appeal on July 15, 2013 and an Amended
Proof of Service pursuant to Rule 906 of the Pennsylvania Rules of Appellate
Procedure on July 24, 2013. Pa.R.A.P. 906.
-2-
J-S05003-15
3. Was trial counsel ineffective by denying [Whitt]
proper representation through failure to interview
and/or investigation of witnesses for defense, failure
to challenge weight and sufficiency of evidence,
failing to keep [Whitt] apprised of all case
particulars[?]
Whitt’s Brief at 5.
Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court's findings of fact, and whether the PCRA
court's determination is free of legal error. Commonwealth v. Phillips,
31 A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry,
877 A.2d 479, 482 (Pa. Super. 2005), appeal denied, 42 A.3d 1059 (Pa.
2012)). A PCRA petitioner must establish the claim by a preponderance of
the evidence. Commonwealth v. Gibson, 925 A.2d 167, 169 (Pa. 2007).
In this case, the PCRA court dismissed Whitt’s petition without a
hearing after receiving and reviewing Attorney Coffey’s “no-merit” letter and
petition to withdraw as counsel pursuant to Pennsylvania v. Finley, 481
U.S. 551 (1987) and Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
See Order of Court, 6/18/12. In its opinion filed pursuant to Pa.R.A.P.
1925(a), the PCRA court determined that Whitt’s PCRA petition was untimely
and that no cognizable exception existed to overcome its untimeliness.
PCRA Court Opinion, 7/9/14, at 4.
Before reaching the merits of a petitioner’s claim, section 9545 of the
PCRA requires that “[a]ny petition under this subchapter, including a second
-3-
J-S05003-15
or subsequent petition, shall be filed within one year of the date the
judgment becomes final.” 42 Pa.C.S.A. § 9545(b)(1). 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).
This Court has held that the timeliness requirement of the PCRA is
“mandatory and jurisdictional in nature.” Commonwealth v. McKeever,
947 A.2d 782, 784-85 (Pa. Super. 2008) (citing Commonwealth v. Davis,
916 A.2d 1206, 1208 (Pa. Super. 2007)). Therefore, “no court may properly
disregard or alter them in order to reach the merits of the claims raised in a
PCRA petition that is filed in an untimely manner.” Id.
In this case, Whitt’s judgment became final on March 19, 1996, ninety
days after our Supreme Court denied his petition for allowance of appeal.
See Commonwealth v. Feliciano, 69 A.3d 1270, 1275 (Pa. Super. 2013)
(“under the PCRA, petitioner’s judgment of sentence becomes final ninety
days after our Supreme Court rejects his or her petition for allowance of
appeal since petitioner had ninety additional days to seek review with the
United States Supreme Court.”). Thus, under the timeliness requirement of
the PCRA, Whitt’s petition must have been filed by March 19, 1997. Whitt
did not file the instant petition, however, until June 18, 2012, more than
-4-
J-S05003-15
fifteen years after his judgment became final. As a result, Whitt’s petition is
facially untimely.
Nevertheless, although the timeliness requirement is mandatory and
jurisdictional, “an untimely petition may be received when the petition
alleges, and the petitioner proves, that any of the three limited exceptions to
the time for filing set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is
met.” Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super.
2013). The three exceptions to the timeliness requirement 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. at n.1 (citing 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii)). The petition invoking
an exception “shall be filed within 60 days of the date the claim could have
been presented.” Commonwealth v. Davis, 86 A.3d 883, 888 (Pa. Super.
2014) (citing 42 Pa.C.S.A. § 9545(b)(2)).
In this case, Whitt attempts to invoke two of the exceptions to the
timeliness requirement. First, Whitt argues that “government official
-5-
J-S05003-15
obstruction has so harmed [Whitt] that he has no idea of the time
calculations which regard his appeal being filed on time.” Whitt’s Brief at 9.
Thus, Whitt asserts that the government interference exception under
42 Pa.C.S.A. § 9545(b)(1)(i) applies in this case.
In support of his assertion, Whitt argues that trial counsel and
Attorney Coffey failed to perform their required duties and abandoned him.
Attorney abandonment does not constitute government interference,
however, as the PCRA provides that “‘government officials’ shall not include
defense counsel, whether appointed or retained.” 42 Pa.C.S.A. § 9545(b)(4).
Whitt fails to name any government officials or provide any argument as to
how government officials obstructed his ability to timely file a petition.
Accordingly, Whitt fails to establish that the government interference
exception applies to the case herein.
Second, Whitt argues that the after-discovered evidence exception
under 42 Pa.C.S.A. § 9545(b)(1)(ii) applies in this case. Whitt asserts that
Attorney Coffey’s abandonment and failure to file an appellate brief
constitutes a “newly discovered fact for purposes of a timeliness exception.”
Whitt’s Brief at 9. In support of his claim, Whitt cites to Commonwealth v.
Bennett, 930 A.2d 1264 (Pa. 2007) for the proposition that abandonment
by counsel can be a newly discovered fact for purposes of a timeliness
exception. Whitt’s Brief at 9.
-6-
J-S05003-15
In Bennett, the PCRA court appointed counsel to the appellant,
Bennett, after he filed a timely pro se PCRA petition. Id. at 1266. After
appointed counsel failed to file an appellate brief, this Court dismissed
Bennett’s appeal. Id. Our Supreme Court determined that counsel’s failure
to file an appellate brief and perfect the appeal, which resulted in this
Court’s dismissal of the appeal, constituted abandonment as it was “the
functional equivalent of having no counsel at all.” Id. at 1273. Our
Supreme Court further concluded that counsel’s abandonment could serve as
a newly discovered fact, as
allowing such claims to go forward would not
eviscerate the time requirements crafted by the
Legislature [in the PCRA]. Rather, subsection
(b)(1)(ii) is a limited extension of the one-year time
requirement under circumstances when a petitioner
has not had the review to which he was entitled due
to a circumstance that was beyond his control.
Id.
In this case, the record does not support Whitt’s assertion that
Attorney Coffey abandoned him and failed to file an appellate brief, such
that Attorney Coffey’s representation amounted to “the functional equivalent
of having no counsel at all.” See Id. To the contrary, the record reflects
that Attorney Coffey appropriately filed a Turner/Finley letter and a motion
to withdraw as counsel in lieu of an appellate brief.
Whitt also contends that evidence consisting of “at least one (1)
independent witness who had been in the company of the victim when she
-7-
J-S05003-15
confessed to perjury at [Whitt’s] trial[,]” proves that he is innocent, and
qualifies as newly discovered evidence. Whitt’s Brief at 11. Whitt claims
that he did not discover the evidence until after litigation of his prior PCRA
petition and could not previously discover the evidence because trial and
appellate counsel abandoned him. Id. at 12.
This Court has established that
[i]n order to sustain an untimely PCRA petition under
the after-discovered evidence exception, a petitioner
must show that the evidence: (1) has been
discovered after the trial and could not have been
obtained prior to the conclusion of the trial by the
exercise of reasonable diligence; (2) is not merely
corroborative or cumulative; (3) will not be used
solely for impeachment purposes; and (4) is of such
a nature and character that a different verdict will
likely result if a new trial is granted.
Commonwealth v. Johnson, 841 A.2d 136, 140-41 (Pa. Super. 2003).
Attorney Coffey, in his Turner/Finley letter, determined that the
evidence provided by the newly discovered witness “would simply be solely
used to impeach the victim’s testimony.” Attorney Coffey’s Motion to
Withdraw as Counsel, 10/2/12, at 4 (Turner/Finley No-Merit Letter); See
also PCRA Court Opinion, 7/9/14, at 5. In his appellate brief, Whitt does
not offer any argument to support a contrary determination, and our review
of the certified record on appeal has not disclosed any basis for a contrary
determination. As a result, Whitt failed to satisfy the four factors established
-8-
J-S05003-15
in Johnson and consequently fails to establish that the newly discovered
evidence exception applies.
Finally, we note that Whitt advances several arguments that trial
counsel and appellate counsel provided ineffective assistance of counsel,
including a claim that counsel failed to investigate witnesses, such as the
aforementioned witness, and evidence that exonerate him. See Whitt’s Brief
at 11-13. This Court has held, however, that “allegations of ineffective
assistance of counsel will not overcome the jurisdictional timeliness
requirements of the PCRA.” Commonwealth v. Pollard, 911 A.2d 1005,
1007 (Pa. Super. 2006) (quoting Commonwealth v. Wharton, 886 A.2d
1120, 1127 (Pa. 2005)). Accordingly, we conclude that Whitt’s ineffective
assistance of counsel arguments do not invoke one of the timeliness
exceptions to the PCRA.
Whitt’s failure to prove that at least one of the three timeliness
exceptions in section 9545 applies to his PCRA petition renders his petition
untimely and therefore, the petition must be dismissed. Accordingly, we
conclude that the PCRA court did not err when it dismissed Whitt’s petition.
Order affirmed.
-9-
J-S05003-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/3/2015
- 10 -