J-S08022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
                v.                        :
                                          :
                                          :
 TRACY E. WATTS,                          :
                                          :
                     Appellant.           :   No. 1758 EDA 2018


                      Appeal from the Order, June 1, 2018,
              in the Court of Common Pleas of Philadelphia County,
              Criminal Division at No(s): CP-51-CR-0707102-2001.


BEFORE:       BENDER, P.J.E., KUNSELMAN, J., and STEVENS*, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                            FILED MAY 03, 2019

      Tracy E. Watts appeals pro se from the order denying as untimely his

serial petition filed pursuant to the Post Conviction Relief Act (“PCRA”). 42

Pa.C.S.A. §§ 9541-46. We affirm.

      The PCRA court summarized the pertinent facts and procedural history

as follows:

             On November 26, 2002, following a capital jury trial
          before the Honorable James Lineberger, [Watts] was
          convicted of one count each of first-degree murder, robbery,
          conspiracy, and possessing an instrument of crime. [Watts’]
          convictions stem from the May 5, 2001, fatal shooting of
          Marquis Henson, whom [Watts] shot five times and robbed
          of a large amount of U.S. currency before fleeing with a co-
          conspirator. On November 27, 2002, before the Court
          began a penalty phase hearing, [Watts] agreed to waive his
          appellate rights in exchange for a life sentence. The Court
          accepted this agreement and, on March 13, 2003, imposed
          an aggregate sentence of life in prison without parole.


____________________________________
* Former Justice specially assigned to the Superior Court.
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        [Watts] was represented at trial and sentencing by Fred
        Harrison, Esquire.

           [Watts] filed a direct appeal in this matter, but the appeal
        was discontinued on March 8, 2004. [Watts] then filed a
        pro se petition under the [PCRA] on March 15, 2004 (“First
        Petition”), arguing that his appellate waiver was involuntary
        due to counsel’s ineffectiveness. [Watts’] First Petition was
        dismissed by the PCRA Court on June 15, 2005. The
        Superior Court affirmed the dismissal of [Watts’] First
        Petition on January 24, 2007. [Watts] sought federal review
        of his involuntary waiver claim through a petition for a writ
        of habeas corpus, which was denied by the federal court on
        November 21, 2008. On October 29, 2010, [Watts] filed a
        second pro se PCRA petition. On March 30, 2015, [Watts’]
        appointed counsel filed an Amended PCRA Petition (“Second
        Petition”) raising the sole claim that newly discovered
        evidence revealed that trial counsel had a relationship with
        the decedent’s father and failed to disclose the conflict of
        interest at trial. As Judge Lineberger had since left the
        bench, this matter was reassigned to the undersigned
        judge. On June 10, 2016, following an evidentiary hearing,
        the Court entered an order dismissing [Watts’] Second
        Petition. The Superior Court affirmed the dismissal of
        [Watts’] Second Petition on April 6, 2017, and on August 23,
        2017, the [Pennsylvania] Supreme Court denied [allocatur].

           On October 24, 2017, [Watts] filed a third pro se PCRA
        Petition (“Third Petition”), in which he claimed he possessed
        newly discovered evidence of police misconduct and
        prosecutorial misconduct.

PCRA Court Opinion, 9/17/18 at 1-2 (citations omitted).

     On May 11, 2018, the PCRA court issued notice pursuant to Pa.R.Crim.P.

907 of its intention to dismiss Watts’ third PCRA petition without a hearing

because it was untimely and otherwise without merit. Watts filed a response.

By order entered June 22, 2018, the PCRA court dismissed the petition. This




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timely appeal followed. Both Watts and the PCRA court have complied with

Pa.R.A.P. 1925.

      Although Watts now claims he has newly discovered evidence of police

misconduct, the issue he raises in his brief is as follows:

         Did the PCRA Court err and/or abuse its discretion when it
         denied [Watts’] petition under the PCRA seeking a new trial
         based upon the ineffective assistance of counsel?

Watts’ Brief at 4.

      This Court’s standard of review regarding an order dismissing a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.         Commonwealth v.

Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will not

be disturbed unless there is no support for the findings in the certified record.

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

      Before addressing the merits of Watts’ issue, we must first determine

whether the PCRA court correctly concluded that Watt’s third PCRA petition

was untimely filed.

      The   timeliness   of   a   post-conviction   petition    is   jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

becomes final unless the petition alleges, and the petitioner proves, that an

exception to the time for filing the petition, set forth at 42 Pa.C.S.A. sections



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9545(b)(1)(i), (ii), and (iii), is met.1 42 Pa.C.S.A. § 9545. A PCRA petition

invoking one of these statutory exceptions must “be filed within 60 days of

the date the claims could have been presented.” See Hernandez, 79 A.3d

651-52 (citations omitted); see also 42 Pa.C.S.A. § 9545(b)(2).2            Finally,

exceptions to the PCRA’s time bar must be pled in the petition, and may not

be raised for the first time on appeal. Commonwealth v. Burton, 936 A.2d

521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (providing that issues

not raised before the lower court are waived and cannot be raised for the first

time on appeal).



____________________________________________


1   The exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of 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)(i), (ii), and (iii).

2 Our legislature recently amended this section of the PCRA to provide
petitioner’s one year to file a petition invoking at time-bar exception. See Act
of 2018, October 24, P.L. 894, No. 146. This amendment does not apply to
Watts’ serial petition.


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      Here, this Court has previously stated that because Watts “previously

waived his direct appeal rights, we find his judgment of sentence became final

for [PCRA] purposes on March 13, 2002.” Commonwealth v. Watts, 169

A.3d 1141 (Pa. Super. 2017), unpublished memorandum at 2, n.1.              Thus,

Watts had until March 13, 2003, to file a timely PCRA petition. As he filed the

petition at issue in 2017, it is untimely, unless Watts has satisfied his burden

of pleading and proving that one of the enumerated exceptions applies. See

Hernandez, supra.

      As noted above, Watts claims that he his third PCRA petition is not time-

barred because he possesses newly discovered evidence of police and

prosecutorial misconduct. The PCRA court determined that it did not have to

address this contention because Watts was not entitled to post-conviction

relief. The PCRA court summarized:

             [Watts] is not entitled to relief on any of [his] claims, as
         he previously waived his appellate rights, including his
         rights to collateral relief, in exchange for a life sentence in
         the instant case. In affirming the dismissal of [Watts’] First
         Petition, the Superior Court upheld that waiver, finding that
         [Watts’] decision to enter into the agreement was knowing,
         voluntary, and “well-reasoned.” Superior Court Opinion,
         filed January 24, 2007, at p. 9. Accordingly, the Court’s
         order dismissing [Watts’] Third Petition should be affirmed.
         See Commonwealth v. Barnes, 687 A.2d 1163, 1166-67
         (Pa. Super. 1996) (upholding the validity of such waivers so
         long as they are entered into knowingly and voluntarily).

PCRA Court Opinion, 9/17/18, at 3 (footnote omitted).




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       Our review of the record supports the PCRA court’s conclusions. Before

affirming the PCRA court’s denial of Watts’ first PCRA petition, this Court

thoroughly discussed Watt’s verbal and written colloquies and concluded that

they “dictate that we find his acceptance of the agreement both knowing and

voluntary.”     See Watts, 919 A.2d. 978 (Pa. Super. 2007), unpublished

memorandum at 6-8. In addition, we noted comments made by trial counsel

at this time, as well as Watts’ own comments to the victim’s family, in which

he understood he was waiving his right to seek a new trial. Id. at 9.

       In sum, because Watts voluntary waived his right to seek relief in

exchange for the Commonwealth’s agreement not to seek the death penalty,

we affirm the order denying post-conviction relief. See Commonwealth v.

Byrne, 833 A.2d 729, 735 (Pa. Super. 2003) (noting, “a defendant is

permitted to waive valuable rights in exchange for important concessions by

the Commonwealth when the defendant is facing a slim possibility of

acquittal”); see also Commonwealth v. Nobles, 198 A.3d 1101, 1105 (Pa.

Super. 2018) (citing Byrne, 833 A.2d at 735) (explaining, “it would

undermine the designs and goals of plea bargaining, and would make a sham

of the negotiated plea process” if the defendant were to avoid “a specific term

negotiated as part” of his plea).3

____________________________________________


3 To the extent that Watts attempts to challenge the validity of the waiver of
his appellate and collateral rights in his reply brief, we additionally note that
this issue was previously litigated under the PCRA, and may not be re-litigated
again. 42 Pa.C.S.A. § 9544(a).


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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/19




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