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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TRACY E. WATTS
Appellant No. 2032 EDA 2016
Appeal from the PCRA Order June 10, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0707102-2001
BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD*, J.
MEMORANDUM BY PANELLA, J. FILED APRIL 06, 2017
Appellant, Tracy E. Watts, appeals from the order denying his second
petition for relief pursuant to the Post Conviction Relief Act ("PCRA"), 42
Pa.C.S.A. §§ 9541-9546. We affirm.
We summarize the relevant facts and procedural history as follows. In
2001, Appellant shot and killed Marquis Henson. Appellant also robbed Mr.
Henson of $3,000.00 before fleeing with a cohort. He was apprehended and
brought to trial before a jury, which convicted him of first -degree murder,
robbery, conspiracy, and possessing an instrument of crime. Just prior to
sentencing, Appellant agreed, to avoid a possible sentence of death by lethal
* Former Justice specially assigned to the Superior Court.
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injection, to waive his appellate rights in exchange for a life sentence.
Appellant signed a written colloquy, which the court reviewed with Appellant
prior to accepting his waiver. The court then formally sentenced Appellant on
March 13, 2003, to life imprisonment without parole on Appellant's first -
degree murder conviction.' Appellant attempted to file a direct appeal, which
he later withdrew. Appellant then timely filed his first PCRA petition. The
court ultimately dismissed that petition without a hearing, and our Court
affirmed the decision. See Commonwealth v. Watts, 2109 EDA 2005 (Pa.
Super., filed January 24, 2007) (unpublished memorandum). Appellant filed
a writ of habeas corpus, and was denied relief.
Appellant filed the instant PCRA petition, his second, on October 29,
2010. Following counsel's entry of appearance, Appellant filed an amended
PCRA petition. Neither writing acknowledged the untimeliness of Appellant's
PCRA petition, save to say that Appellant purportedly presented "newly -
discovered evidence," without any dates or times of the discovery.
The PCRA court held a hearing, and Appellant presented two witnesses
who claimed to know of a close relationship between Appellant's trial counsel
and the victim's father. One witness, Thomas Davis, claimed the two men
frequented the same "motorcycle club" bar. N.T., 6/10/16, at 10. The other
' Appellant was also sentenced on his remaining charges at that time. As
Appellant previously waived his direct appeal rights, we find his judgment of
sentence became final for our purposes on March 13, 2003.
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witness, James Brooks, whose testimony the court found entirely incredible,
stated he heard a close friend of counsel discussing with the victim's father
how Appellant's counsel planned to "throw the case." Id., at 24. Appellant's
trial counsel testified he did not have a relationship with the victim's father,
and that he never agreed to "throw" Appellant's case. Id., at 40. Appellant
then testified that he had been threatened while in prison during the trial,
and he felt pressured to waive his appellate rights. See id., at 51. The PCRA
court ultimately dismissed Appellant's petition on the merits.
On appeal, Appellant argues the trial court erred in denying his PCRA
petition, given his presentation of newly discovered evidence regarding
counsel's conflict of interest.
As a threshold matter, we note that the timeliness of a PCRA petition
is a jurisdictional requisite. See Commonwealth v. Hackett, 956 A.2d 978,
983 (Pa. 2008). A court cannot hear an untimely petition. See
Commonwealth v. Flanagan, 854 A.2d 489, 509 (Pa. 2004). Therefore, a
PCRA petition must be filed within one year of the date the underlying
judgment becomes final. See 42 Pa.C.S.A. § 9545(b)(1). A judgment is
deemed final at the conclusion of direct review or at the expiration of time
for seeking review. See 42 Pa.C.S.A. § 9545(b)(3).
Three statutory exceptions to the PCRA's timeliness provisions allow
for very limited circumstances under which the late filing of a petition will be
excused. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petitioner asserting a
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timeliness exception must file a petition within 60 days of the date the claim
could have been presented. See 42 Pa.C.S.A. § 9545(b)(2).
As noted, Appellant's judgment of sentence became final on March 13,
2003. Thus, Appellant's petition filed on October 29, 2010, is patently
untimely. The PCRA court did not conduct a timeliness inquiry, but rather
dismissed Appellant's petition on the merits.
We, however, will address the timeliness issue based on the single
exception cited in the amended PCRA petition. See also Commonwealth v.
Wilson, 824 A.2d 331, 335 (Pa. Super. 2003) (en banc) ("Since Appellant's
PCRA petition is untimely, our review focuses on whether Appellant has pled
and proven that one of the three limited exceptions to the timeliness
requirements of the PCRA apply.")
In his amended petition, Appellant purportedly invokes the newly
discovered evidence exception to the PCRA's jurisdictional time bar. See 42
Pa.C.S.A. § 9545(b)(1)(ii). "In order to be entitled to the exceptions to the
PCRA's one-year filing deadline, the petitioner must plead and prove specific
facts that demonstrate his claim was raised within the sixty-day time frame
under section 9545(b)(2)." Commonwealth v. Hernandez, 79 A.3d 649,
652 (Pa. Super. 2013) (citation and internal quotation marks omitted;
emphasis added). See also Thomas M. Place, The Post Conviction Relief Act:
Practice and Procedure (2010 ed.), § 6.01[b] ("The defendant must include
the precise date in his or her petition of when he or she learned of the after-
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discovered evidence to allow the court to determine whether the exception
has been timely invoked.")
While Appellant vigorously argues that trial counsel was corrupt due to
a conflict of interest, Appellant fails even to plead, much less prove, that this
discovery and subsequent petition fell within the time allotted by the PCRA.
This is fatal to his claim. It deprived the PCRA court of jurisdiction to
proceed.
Despite Appellant's failure to include precise dates in order for the
court to evaluate whether the claim was properly filed within 60 days of the
date it could have been presented, the PCRA court nevertheless chose to
conduct an evidentiary hearing. The PCRA court should have simply rejected
Appellant's petition as untimely. The court should not have held an
evidentiary hearing.
Appellant failed to address this timeliness issue in the testimony he
presented at the hearing. Moreover, even if Appellant had filed this claim
within 60 days of learning of this newly discovered evidence, he also failed
to give any reason regarding why he could not have obtained this
information sooner with reasonable diligence. Given that Mr. Brooks is
Appellant's cousin, and Mr. Davis is Appellant's childhood friend, we find
unavailing Appellant's assertions that any of the purported newly discovered
evidence presented at the evidentiary hearing was unavailable to him prior
to his second PCRA filing.
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In response to a question about whether he had told Appellant about
counsel's alleged plan to "throw the case" prior to 2010, when Appellant filed
the instant petition, Mr. Brooks testified: "I actually seen [Appellant] before
then and I told him then too, but it was - I believe I was waiting on him to
do whatever he wanted to do." N.T., 6/10/16, at 27. Additionally, Mr. Brooks
entirely failed to note in his initial affidavit attached to Appellant's PCRA
petition that he ever heard any discussion of a plan to "throw" Appellant's
case. The court found Mr. Brooks' testimony incredible.
Appellant's childhood friend, Mr. Davis, also gave conflicting testimony
how close his relationship was with Appellant and the frequency of their
contact. Contrary to Appellant's assertions that the PCRA court specifically
found Mr. Davis "credible," the transcript from the evidentiary hearing
reveals that the PCRA court actually stated: "[E]ven accepting everything he
said to be true, it doesn't prove [] the cornerstone of the argument." Id., at
87.
Given Appellant's failure to prove the timeliness exception, in addition
to Mr. Brooks' testimony that he previously told Appellant about the alleged
conflict, the record demonstrates Appellant was aware of this supposed
ground for relief well before he filed second PCRA petition. The record does
not support the PCRA court's brief footnote stating that it found Appellant
filed his second pro se PCRA petition within 60 days of learning of his trial
counsel's alleged conflict of interest and thus "satisfied the requirements of
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the newly discovered evidence exception to the PCRA's time -bar." PCRA
Court Opinion, 8/22/16, at 2 n.1. However, we may affirm the PCRA court's
decision on any basis. See Commonwealth v. Burns, 988 A.2d 684, 690
n.6 (Pa. Super. 2009) ("[A]n appellate court may affirm the lower court on
any basis, even one not considered or presented in the court below.")
Appellant has failed to establish that his claims fall within any of the
exceptions to the PCRA's timeliness requirement. Accordingly, we affirm the
dismissal of Appellant's second PCRA petition.
Order affirmed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 4/6/2017
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Com. v. Watts, T.
Combined Opinion