J-S57012-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                 Appellee                :
                                         :
           v.                            :
                                         :
HARRY WOLDSMIT,                          :
                                         :
                 Appellant               : No. 2757 EDA 2013

             Appeal from the PCRA Order September 12, 2013,
               Court of Common Pleas, Philadelphia County,
            Criminal Division at No(s): CP-51-CR-0205021-2006
                       and CP-51-CR-1005951-2005

BEFORE: DONOHUE, MUNDY and STABILE, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED OCTOBER 10, 2014

     Harry Woldsmit (“Woldsmit”) appeals pro se from the September 12,

2013 order entered by the Philadelphia County Court of Common Pleas

dismissing his second petition filed pursuant to the Post Conviction Relief

Act, 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”), as untimely. We affirm.

     The facts of the case, summarized by the trial court in a prior written

opinion pursuant to Pa.R.A.P. 1925(a), are as follows:

           On two different occasions, [Woldsmit], while on
           parole, drove to Kensington Avenue to pick up young
           women who were willing to perform oral sex in
           exchange for money.

           On August 22, 2005, [Woldsmit] made an agreement
           with the victim […] to receive oral sex in exchange
           for $60. [Woldsmit] drove the victim to a location
           near Venango and Richmond and the victim asked
           him for her money. [Woldsmit] held a knife to the
           victim’s throat and pulled down the victim’s pants.
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          [Woldsmit] then began vaginally penetrating the
          victim and eventually digitally penetrating the
          victim’s anus. After [Woldsmit] was finished
          attacking [the victim], he told her he was a police
          officer and that he would kill her if necessary. After
          more threats, [Woldsmit] drove [the victim] a short
          distance and let her out of the vehicle. She had to
          exit through the driver’s side door because the
          passenger side door could not be opened from the
          inside. [The victim] made a photo identification of
          [Woldsmit] to Detective Norma Serrano at the
          Special Victim’s Unit approximately two and a half
          weeks later.

          On September 2, 2005, [Woldsmit] coaxed his
          second victim […] into his car and promised to pay
          her $40 in exchange for oral sex. While in the back
          seat, [Woldsmit] took out a knife and held it against
          [the victim’s] neck. [Woldsmit] then demanded
          intercourse and threatened to kill [the victim] if she
          did not comply. [The victim] attempted to fight off
          [Woldsmit] and during the struggle, [Woldsmit]
          slightly, but not fully, penetrated her vagina.
          Eventually [the victim] was able to escape through
          the driver’s side door and flag down a passing
          motorist.

          On July 18, 2006, both victims appeared in court to
          testify   against    [Woldsmit]    at  a    scheduled
          consolidated jury trial. The two victims had never
          met each other prior to entering the courtroom on
          that day. [Woldsmit] then agreed to enter [a] guilty
          plea. A lengthy factual basis for the two incidents
          which were of course remarkably similar, was placed
          on the record with both victims in the court and
          listening. After [Woldsmit] entered his guilty plea,
          the Commonwealth requested that the court advise
          [Woldsmit] of his rights to withdraw a guilty plea,
          and also about the ‘issue of substantial prejudice.’
          [The trial court] then responded ‘I normally don’t like
          to put something out there that someone is not
          thinking about,’ to which [Woldsmit] quipped ‘I




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             already thought about it. [The district attorney] is
             not that quick.’

Trial Court Opinion, 6/30/08, at 3-5 (record citations omitted).

       On July 18, 2006, Woldsmit pled guilty to two counts each of rape and

terroristic threats and one count each of aggravated indecent assault and

impersonating a public servant.1      Although represented by counsel, on

September 8, 2006, Woldsmit filed a pro se motion to withdraw his guilty

plea, claiming therein, in relevant part, that he was innocent of the charges;

that his plea was not knowingly and intelligently entered because he “was

suffering from the effects of his psychotropic medication, depression, and

the guilty plea was the product of his deteriorated physical and mental

condition”; and that his attorney was not willing to help him.      Motion to

Withdraw Guilty Plea, 9/8/06.

       The Commonwealth filed a response in opposition to the motion,

asserting that Woldsmit did not satisfy his burden of showing that there was

a fair and just reason to permit him to withdraw his plea.                The

Commonwealth further stated that it would suffer substantial prejudice if the

trial court permitted him to withdraw his plea, as it was unable to locate the

two complainants, both of whom had drug addiction problems and worked as

prostitutes. The Commonwealth indicated that Woldsmit was aware of the

problems the Commonwealth had locating one of the complainants for trial,



1
    18 Pa.C.S.A. §§ 3121, 2706, 3125, 4912.


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which led to the issuance of a bench warrant for her arrest and an initial

dismissal of the charges against Woldsmit relating to her assault.

      The trial court held three days of hearings on the motion.            At those

hearings, the Commonwealth presented evidence regarding its claim of

substantial   prejudice.     It   further   presented   recordings     of        phone

conversations between Woldsmit and his now-ex-wife while Woldsmit was

incarcerated, during which Woldsmit admitted to raping one of the victims.

An issue arose surrounding the Commonwealth’s role in Woldsmit’s ex-wife

procuring Woldsmit’s confession on the taped recordings.       The prosecutor

informed that trial court that Woldsmit’s ex-wife contacted him and let him

know what Woldsmit was saying on the phone. The prosecutor stated that

he informed the ex-wife that all calls made and received by inmates were

recorded. The prosecutor asked her if she wished to have Woldsmit’s access

to contact her shut off, to which she replied that she did not want that at

that time.

      Unconvinced     that   Woldsmit’s     ex-wife     was   acting        at     the

Commonwealth’s behest during these conversations, the trial court denied

Woldsmit’s request to withdraw his guilty plea on October 20, 2006.

Specifically, the trial court found “that the mere assertion of innocence under

the facts and circumstances of this case does not establish a just cause or

reason to withdraw the plea,” and that the Commonwealth would be




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prejudiced by permitting Woldsmit to withdraw his plea. N.T., 10/20/06, at

21-22.

      On January 18, 2006, the trial court sentenced Woldsmit to 20 to 40

years of imprisonment. The trial court further found that he met the criteria

for classification as a sexually violent predator.

      Woldsmit appealed his judgment of sentence and this Court affirmed

on February 3, 2009. Woldsmit did not file a petition for allowance of appeal

with the Pennsylvania Supreme Court.

      On January 27, 2010, Woldsmit filed a timely pro se PCRA petition. He

filed a second pro se petition on April 8, 2010, which the PCRA court

accepted as an amended petition. The PCRA court appointed counsel, who

filed a Turner/Finley2 “no merit” letter and a request to withdraw. On July

1, 2011, the PCRA court dismissed the pro se petitions and granted counsel

permission to withdraw.

      Woldsmit filed a timely notice of appeal, but did not comply with the

PCRA court’s order for a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). This Court ultimately dismissed the appeal

on October 17, 2012, as Woldsmit failed to file an appellate brief.

      On October 10, 2012, a week prior to the dismissal of his PCRA

appeal, Woldsmit filed the instant pro se PCRA petition. He asserted that the



2
   Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988)


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trial court denied his request to withdraw his guilty plea based on his

admission to his ex-wife over the phone from prison that he was guilty, and

that he has new evidence that his ex-wife and the Philadelphia District

Attorney’s Office “set the whole phone call up.” PCRA Petition, 10/10/12, at

3. He appended to his petition several Facebook messages from his ex-wife

to someone named Maria Laura Knight Woldsmit, wherein his ex-wife states

that she “set him up.” Id. at Exhibit B.

      On June 19, 2013, the PCRA court issued notice of its intention to

dismiss Woldsmit’s petition without a hearing.         Woldsmit did not file a

response.   The PCRA court dismissed the PCRA petition on September 12,

2013. Woldsmit filed a notice of appeal that same day.

      On appeal, Woldsmit raises the following issues for our review:

         A. Did the trial court err in denying [Woldsmit]’s
            request for relief through the P.C.R.A.?

            1. Did [the] trial judge violate [Woldsmit]’s right to
               present [an] alibi-witness [sic]?

            2. Did [the]   trial   judge     violate     ex   parte
               communications rules?

            3. Has [the] trial judge abused his discretion?

         B. Did the Commonwealth violate [Woldsmit]’s due
            process rights?




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Woldsmit’s Brief at 6.3

      We review the denial of a PCRA petition on timeliness grounds

according to the following standard:

            In reviewing the denial of PCRA relief, we examine
            whether the PCRA court’s determination is supported
            by the record and free of legal error. The PCRA
            timeliness requirement, however, is mandatory and
            jurisdictional in nature. The court cannot ignore a
            petition’s untimeliness and reach the merits of the
            petition. Section 9545(b)(1) requires a petitioner to
            file a PCRA petition within one year of the date the
            judgment [became] final.

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013) (internal

citations and quotations omitted). “[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).

      The judgment of sentence in the case at bar became final on March 5,

2009 – 30 days after this Court affirmed Woldsmit’s judgment of sentence

on direct appeal. See Pa.R.A.P. 1113(a) (A petition for allowance of appeal

to the Pennsylvania Supreme Court must be filed within 30 days of the entry

of the Superior Court order to be reviewed.).          Thus, the instant PCRA

petition, filed on October 10, 2012, is facially untimely.




3
   Woldsmit’s appellate brief is not paginated. For ease of reference, we
have assigned numbers to each page, beginning with the first page after the
cover as page 1.


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      Section   9545(b)(1)   provides   three   statutory   exceptions   to   the

timeliness provisions that allow for very limited circumstances under which

the late filing of a PCRA petition will be excused:

            (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.

42 Pa.C.S.A. § 9545(b)(1). “Any petition invoking an exception provided in

paragraph (1) shall be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S.A. § 9545(b)(2).

      The PCRA court attempted to give Woldsmit the benefit of the second

exception – commonly known as the newly discovered fact exception to the

timeliness requirements. See PCRA Court Opinion, 6/19/13, at 3, 7. The

PCRA court concluded, in relevant part, that the fact that Woldsmit’s ex-wife

set Woldsmit up to confess his guilt over the phone in prison was known in

2006. Id. at 8. The PCRA court goes on to say that the motion to withdraw

his plea was not denied based upon the phone call, but was really based




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upon the prejudice that would befall the Commonwealth if Woldsmit

withdrew his plea. Id.

     In his appellate brief, Woldsmit argues against the Facebook

messages being considered as a newly discovered fact and chastises the

PCRA court for referring to this as new evidence. Woldsmit’s Brief at 18-19.

Woldsmit appears to agree that the PCRA court was aware in 2006 that his

wife set him up.    Woldsmit details how the prosecutor admitted on the

record that he was aware that Woldsmit’s wife was speaking with Woldsmit

about the charges and that the prosecutor informed her that the calls were

being recorded.    Id. at 19.   The prosecutor stated at the hearing that

Woldsmit’s ex-wife was acting only with the prosecutor’s “knowledge,” and

was not fulfilling any request he made for her to question Woldsmit about

anything.   Id. (citing PCRA Court Opinion, 6/19/13, at 7); see N.T.,

10/20/06, at 7.    According to Woldsmit, “[Stevie] Wonder could see that

that was a request [by the prosecutor] for help.” Woldsmit’s Brief at 19.

     Our courts have previously explained the newly discovered fact

exception as follows:

            Exception (b)(1)(ii) requires petitioner to allege and
            prove that there were ‘facts’ that were ‘unknown’ to
            him and that he could not have ascertained those
            facts by the exercise of ‘due diligence.’ The focus of
            the exception is on the newly discovered facts, not
            on a newly discovered or newly willing source for
            previously known facts.




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Commonwealth v. Johnston, 42 A.3d 1120, 1128 (Pa. Super. 2012)

(quoting Commonwealth v. Marshall, 947 A.2d 714, 720 (2008)) (internal

citations and quotations omitted; emphasis supplied).

      By Woldsmit’s own admission, there was nothing “new” about the

information contained in the Facebook messages.           The messages were

simply a new source indicating what was already known in 2006 – that

Woldsmit’s ex-wife set him up to confess his guilt.      Moreover, contrary to

Woldsmit’s claim, these messages are not proof that the Commonwealth

enlisted Woldsmit’s ex-wife to set Woldsmit up to admit that he was guilty –

they do not reveal any collaboration or collusion between the prosecutor and

Woldsmit’s ex-wife, only that Woldsmit’s ex-wife set Woldsmit up to admit

his guilt over the phone while in prison.        Thus, this evidence does not

constitute a newly discovered fact.

      As Woldsmit does not satisfy any of the exceptions to the PCRA’s

timeliness requirements, this Court does not have jurisdiction to address the

merits of the issues raised on appeal.         As the PCRA court likewise was

without jurisdiction to entertain the merits of Woldsmit’s PCRA petition, we

find no error in its dismissal of his petition without a hearing on timeliness

grounds.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/10/2014




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