J-S23014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TRACY WHITAKER                             :
                                               :
                       Appellant               :   No. 3129 EDA 2017

                 Appeal from the PCRA Order August 31, 2017
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0001147-1994



BEFORE:      SHOGAN, J., NICHOLS, J., and STEVENS*, P.J.E.

MEMORANDUM BY SHOGAN, J.:                                 FILED JUNE 08, 2018

       Appellant, Tracy Whitaker, appeals pro se from the order denying his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. We affirm.

       A previous panel of this Court summarized the procedural history of this

case as follows:

             [Appellant] was found guilty by a jury of first-degree
       murder, and related charges [on December 8, 1994], regarding
       the beating death of nine-month-old Robert Pringle, his girlfriend’s
       son.[1] [Appellant], who was not subject to the death penalty, was
       subsequently sentenced to a mandatory sentence of life
       imprisonment. He filed a direct appeal, and this Court affirmed
       the judgment of sentence on August 15, 1995. Commonwealth
       v. Whitaker, 668 A.2d 1199 (Pa. Super. 1995) (unpublished
       memorandum).         The Pennsylvania Supreme Court denied
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1 As the facts of the crime are not germane to the issues raised, we do not
repeat them here.
____________________________________
* Former Justice specially assigned to the Superior Court.
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       allowance of appeal on January 26, 1996. Commonwealth v.
       Whitaker, 672 A.2d 307 (Pa. 1996). [Appellant’s] sentence
       became final 90 days later, April 25, 1996, when time expired to
       seek review by the United States Supreme Court.                    See
       U.S.Sup.Ct.R. 13. . . . [T]he instant petition is [Appellant’s] eighth
       PCRA petition.[2] The prior . . . petitions[3] were all denied as being
____________________________________________


2 In actuality, the prior petition was Appellant’s ninth PCRA petition. See n.3,
infra.

3  Appellant’s first PCRA petition was filed on October 22, 1997, this Court
affirmed on May 21, 1998, and our Supreme Court denied review on March 5,
1999. Commonwealth v. Whitaker, 575 PHL 98 (Pa. Super. 1998), appeal
denied, 334 MD Misc. Dkt. 98. Appellant’s second PCRA petition was filed on
March 26, 2001, and denied on November 1, 2001. Appellant did not appeal
the denial. The third PCRA petition was filed on April 25, 2003, denied on
June 25, 2003, and affirmed by this Court on January 22, 2004.
Commonwealth v. Whitaker, 847 A.2d 762, 2317 EDA 2003 (Pa. Super.
2004) (unpublished memorandum). Appellant filed a fourth PCRA petition on
June 22, 2007, which the PCRA court dismissed on October 11, 2007.
Appellant filed a notice of appeal. Commonwealth v. Whitaker, 1676 EDA
2008 (Pa. Super. 2008). While the appeal was pending, Appellant filed a fifth
petition on February 21, 2008. The PCRA court dismissed the fifth petition
pursuant to Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000).
Commonwealth v. Whitaker, 682 EDA 2008 (Pa. Super. 2008). Appellant
then sought discontinuance of both his fourth and fifth PCRA petitions, which
this Court granted on September 10, 2008, and July 23, 2008, respectively.
Appellant filed a petition for writ of habeas corpus, which the common pleas
court treated as Appellant’s sixth PCRA petition. The PCRA court denied the
petition, and this Court affirmed on August 26, 2009. Commonwealth v.
Whitaker, 984 A.2d 1025, 646 EDA 2009 (Pa. Super. 2009) (unpublished
memorandum). Appellant filed a seventh petition captioned as a petition for
writ of habeas corpus on April 2, 2011, which was denied by operation of law.
We quashed Appellant’s appeal sua sponte on December 22, 2011, “as having
been taken from a purported order which is not entered upon the appropriate
docket in the lower court. See Pa.R.A.P. 301(a)(1).” Commonwealth v.
Whitaker, 2504 EDA 2011 (Pa. Super. 2011). Appellant filed his eighth PCRA
petition on May 4, 2013. The PCRA court dismissed the petition on September
20, 2013, and Appellant did not appeal. Appellant filed a ninth PCRA petition
on October 16, 2014. The PCRA court dismissed the petition on January 12,
2016. Appellant filed an appeal, this Court affirmed on November 10, 2016,
and our Supreme Court denied further review on May 9, 2017.



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       untimely, except for petition number five which was filed while the
       appeal from petition number four was still pending.2

              2 [Appellant] filed at least five petitions for habeas
              corpus with the federal courts, all of which afforded
              [Appellant] no relief.[4]

Whitaker, 159 A.3d 582, 369 EDA 2016 (unpublished memorandum at *1).

       On June 26, 2017, Appellant filed the instant pro se Petition for

Collateral Relief.5    The Commonwealth responded on July 27, 2017.           On

August 7, 2017, the PCRA court issued a notice of intent to dismiss the petition

without a hearing. Appellant responded on August 18, 2017, and the PCRA

court dismissed the petition on August 30, 2017. Appellant filed this timely

appeal. The PCRA court did not direct Appellant to file a Pa.R.A.P. 1925(b)

statement; it filed an opinion on November 17, 2017.6

       Appellant raises the following issues on appeal:



____________________________________________


Commonwealth v. Whitaker, 159 A.3d 582, 369 EDA 2016 (Pa. Super.
2016) (unpublished memorandum), appeal denied, 169 A.3d 516, 885 MAL
2016 (Pa. 2017).

4   Appellant sought federal habeas corpus relief twelve times, all to no avail.

5 While the petition is docketed as filed on June 26, 2017, the document in
the record certified to us on appeal was Appellant’s Memorandum of Law in
Support of Petitioner’s Motion for Post Conviction Relief (“Appellant’s
Memorandum of Law”), which also was docketed on June 26, 2017. Through
the efforts of our Prothonotary, we obtained the PCRA petition as a
supplemental certified record.

6 The PCRA court, in its opinion, determined Appellant’s PCRA petition was
untimely, but it wholly failed to address Appellant’s purported applicability of
one of the exceptions to the timeliness requirement.

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         I.   Whether the PCRA Court err’d [sic] in dismissing Appellant’s
              PCRA Motion under the auspice it lacked jurisdiction to rule
              on a timely filed PCRA Petition under the newly discovered
              fact doctrine pursuant to 42 Pa.C.S. § 9545(b)(1)(i),(ii),(2),
              and whether PCRA Court err’d [sic] in not conducting a
              hearing to determine if Appellant’s argument suffered a
              complete 14th Amendment violation employed under
              Brady/Bagley Doctrine?

      II.     Whether Appellant suffered a 14th Amendment violation
              when the State withheld exculpatory and impeaching
              material evidence under Brady/Bagley Doctrine, violates
              Appellant’s right to due process of law where the
              Commonwealth seeks to withhold impeaching material
              evidence in violation of the 14th Amendment’s Federal
              Constitution?

Appellant’s Brief at 4.

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”     Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc)).    This Court is limited to determining whether the evidence of

record supports the conclusions of the PCRA court and whether the ruling is

free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.

2016).    The PCRA court’s findings will not be disturbed unless there is no

support for them in the certified record. Commonwealth v. Lippert, 85 A.3d

1095, 1100 (Pa. Super. 2014).

      Moreover, “[t]here is no absolute right to an evidentiary hearing on a

PCRA petition, and if the PCRA court can determine from the record that no

genuine issues of material fact exist, then a hearing is not necessary.”

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Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (quoting

Commonwealth v. Barbosa, 819 A.2d 81 (Pa. Super. 2003)). “[S]uch a

decision is within the discretion of the PCRA court and will not be overturned

absent an abuse of discretion.” Commonwealth v. Mason, 130 A.3d 601,

617 (Pa. 2015).

       Initially, we must determine whether the PCRA court had jurisdiction to

review the merits of Appellant’s issue based on the timing of Appellant’s

petition. The timeliness of a PCRA petition is a jurisdictional threshold that

may not be disregarded in order to reach the merits of the claims raised in a

PCRA petition that is untimely. Commonwealth v. Lawson, 90 A.3d 1, 4

(Pa. Super. 2014) (citing Commonwealth v. Murray, 753 A.2d 201, 203

(Pa. 2000)).     Appellant’s judgment of sentence became final on April 25,

1996,7 when the time expired to seek relief in the United States Supreme

Court. See 42 Pa.C.S. § 9545(b)(3) (for purposes of calculating the timeliness

of a petition, a “judgment becomes final at the conclusion of direct review,

including discretionary review in the Supreme Court of the United States and



____________________________________________


7  Appellant’s judgment of sentence became final more than three months
after the effective date of the 1995 amendments to the PCRA. Therefore, the
proviso for cases where the judgment of sentence became final before the
effective date of the 1995 amendments to the PCRA, i.e., that a first petition
shall be deemed timely if it was filed within one year of the effective date of
the 1995 amendments, is not applicable. Commonwealth v. Voss, 838 A.2d
795, 799 (Pa. Super. 2003) (“Because the effective date of the amendments
is January 16, 1996, the operative deadline for first-time PCRA petitions is
January 16, 1997.”).

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the Supreme Court of Pennsylvania, or at the expiration of time for seeking

the review”); U.S.Sup.Ct.R. 13 (petition for a writ of certiorari seeking review

of a judgment of a lower state court that is subject to discretionary review by

the state court of last resort is timely when it is filed with the Clerk within 90

days after entry of the order denying discretionary review).           Therefore,

Appellant had until April 25, 1997, to file a timely PCRA petition.       See 42

Pa.C.S. § 9545(b)(1) (A PCRA petition, “including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes

final. . . .”). Appellant filed the instant PCRA petition on June 26, 2017, over

twenty years after his judgment of sentence became final. Hence, the petition

is facially untimely.

       The jurisdictional time bar can be overcome only by satisfaction of one

of the three statutory exceptions codified at 42 Pa.C.S. § 9545(b)(1)(i)–(iii).8




____________________________________________


8   The 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



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Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017). Further, “[a]ny

petition invoking an exception . . . shall be filed within 60 days of the date the

claim could have been presented.”              42 Pa.C.S. § 9545(b)(2).   The PCRA

petitioner bears the burden of proving the applicability of one of the

exceptions. Commonwealth v. Edmiston, 65 A.3d 339, 346 (Pa. 2013).

       Appellant alleges his PCRA claim is predicated on previously unknown

facts, and he asserts the applicability of 42 Pa.C.S. § 9545(b)(1)(ii). This

Court recently reiterated that whether a PCRA petitioner has satisfied the

Section 9545(b)(1)(ii) time-bar exception “is analytically distinct from the

merits of any substantive claim seeking relief.”               Commonwealth v.

Robinson, ___ A.3d ___, 2018 PA Super 109, *3 (Pa. Super. filed May 2,

2018) (en banc).

       The text of the relevant subsection provides that “the facts upon
       which the claim is predicated were unknown to petitioner and
       could not have been ascertained by due diligence.” 42 Pa.C.S.
       §9545(b)(1)(ii). . . . The plain language of subsection (b)(1)(ii)
       does not require the petitioner to allege and prove a claim of
       “after-discovered evidence.” Rather, it simply requires petitioner
       to allege and prove that there were “facts” that were “unknown”
       to him and that he exercised “due diligence.”

Id. (quoting Commonwealth v. Bennett, 930 A.2d 1264, 1270 (Pa. 2007)).



____________________________________________


       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. § 9545(b)(1)(i), (ii), and (iii).




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       In July of 2016, Appellant sought information from Delaware County

Children and Youth Services (“CYS”) under Pennsylvania’s Right-to-Know Law9

(“RTKL”) regarding possible investigations of his girlfriend, the mother of his

victim, by CYS and Philadelphia County Children Welfare Unit (“CWU”).

Memorandum of Law, 6/26/16, at Exhibit B. By letter dated August 19, 2016,

Delaware County Open Records Officer Anne Coogan responded with an

“Attestation of Nonexistence of Records,” noting that Appellant also had

previously submitted this same request to CYS, and the Open Records Office

had received it on July 15, 2015. Id. (emphasis added). The fifteen reasons

cited in the Attestation of Nonexistence of Records included references to 65

P.S.    67.708(b)(17)(i–vi),      65    P.S.   67.708(b)(28)(i–ii)   and   65   P.S.

67.708(b)(30).

       In addition, Appellant requested review of the Department of Human

Services case record related to his girlfriend, as acknowledged by Jonathan

Houlon, Chief Deputy City Solicitor of the City of Philadelphia, CWU, by letter

dated August 4, 2016. Id. Appellant asserts the information was “denied and

affirmed by the Office of Open Records, Kelley C. Issenberg, Esq. on

September 22, 2016,” but the denial is not in the certified record. Appellant’s

Brief at 5.




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9   Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101–67.3104.

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      Appellant contends that such denials, for “numerous statutory reasons

under the RTKL,” suggest that: (1) such records must exist; (2) they must be

favorable to Appellant in terms of providing either a basis for impeaching the

victim’s mother or exculpating Appellant; and (3) the Commonwealth was in

violation of the requirements of Brady v. Maryland, 373 U.S. 83 (1963), by

not providing Appellant with the contents of the CYS and CWU files.

Appellant’s Brief at 7–9.

      Contrary to Appellant’s suggestion, nothing in Ms. Coogan’s response

suggested, let alone established, that: (1) there were records of an

investigation into the victim’s mother regarding alleged child abuse; (2) that

the records which Appellant sought were ever in the possession of the

prosecution; (3) that there are any records that were either a source of

impeachment of the victim’s mother or exculpatory of Appellant; or (4)

Appellant was entitled to obtain information, if any existed, that was contained

in the CYS and/or CWU records.

      We reject Appellant’s assertion of the applicability of 42 Pa.C.S.

§ 9545(b)(1)(ii) because his assertions are based on nothing but unsupported

speculation. This does not provide a basis for overcoming the untimeliness of

his PCRA petition. Moreover, it also is apparent from the two-decade delay

that Appellant failed to seek out the information in a duly diligent manner.

See Robinson, ___ A.3d at ___, 2018 PA Super 109, at *8.              Surely, the

alleged files Appellant sought to review, if they existed at all, existed in 1995,


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in the year following the murder of nine-month-old Robert Pringle. Thus, the

absence of due diligence additionally “serves to affirm the instant order.” Id.

at n.5. Because Appellant’s PCRA petition was untimely and no exceptions

apply, the PCRA court lacked jurisdiction to address the claims presented and

grant relief. Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super.

2002) (PCRA court lacks jurisdiction to hear untimely petition).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/8/18




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