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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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