J-S52037-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CRAIG WILLIAMS                             :
                                               :
                       Appellant               :   No. 2415 EDA 2018

               Appeal from the PCRA Order Entered July 20, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0525631-1987


BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                           Filed: December 13, 2019

       Craig Williams appeals pro se from the order dismissing as untimely his

petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§

9541-9546. Williams asserts his trial counsel was ineffective for failing to

communicate the Commonwealth’s plea offer and that his petition is timely

because he recently discovered that the Commonwealth made the plea offer.

We affirm.

       A jury convicted Williams of first-degree murder1 for the 1987 shooting

of Gordon Russel. The court initially sentenced Williams to death,2 but, in
____________________________________________


1 See 18 Pa.C.S.A. § 2502(a). The jury also convicted Russel of recklessly
endangering another person and possession of an instrument of crime. See
id. at §§ 2705 and 907, respectively.

2The Supreme Court affirmed Williams’ conviction and sentence in 1992. See
Commonwealth v. Williams, 615 A.2d 716 (Pa. 1992).
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2006, following PCRA proceedings, the court granted Williams a new

sentencing hearing.3 On May 1, 2012, the trial court resentenced Williams to

life without parole. Williams did not file a direct appeal from his 2012 judgment

of sentence.

        On November 18, 2016, Williams filed the instant PCRA petition, pro se.

In the petition, Williams alleged that his trial attorney never told him there

was a plea offer, and the offer was never placed on the record in open court.

Williams alleged that he learned a guilty plea offer had been made through a

request under the Right-To-Know Law (“RTKL”).4

        Williams attached to his PCRA petition a copy of the alleged response to

his RTKL request—an affidavit from an employee of the Philadelphia District

Attorney’s Office, dated September 23, 2016. Although it is unclear, the

affidavit appears to deny Williams’ request for various documents. Relevant

here, the affidavit states that the various documents Williams requested,

including “the guilty plea offer,” “relate to a criminal investigation” and

“contain information assembled as a result of the performance of an inquiry
____________________________________________


3 Williams filed a PCRA petition in 1996, which the PCRA court denied by
adopting the reasoning in the Commonwealth’s motion to dismiss. On appeal
of the denial of relief, the Supreme Court remanded for a new PCRA court
opinion. See Commonwealth v. Williams, 782 A.2d 517 (Pa. 2001). Upon
remand, the Commonwealth consented to a new capital penalty hearing. The
PCRA court granted the request for resentencing, but denied relief on Williams’
other PCRA claims, and the Supreme Court affirmed. See Commonwealth v.
Williams, 980 A.2d 510 (Pa. 2009).

4   See 65 P.S. §§ 67.101-67.3104.



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into a criminal incident or an allegation of criminal wrongdoing.” Affidavit,

9/23/16, at 1.5

        Following his PCRA petition, Williams filed a pro se Motion for Discovery

and Second Motion for Discovery, asking the court to compel the District

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5   The affidavit stated as follows:

                I, [redacted], am the Chief of the Civil Litigation Unit for the
        City of Philadelphia’s District Attorney’s Office (“DAO”), and am
        authorized to execute this affidavit. I state the following to the
        best of my knowledge, information and belief under penalty of
        perjury pursuant to 18 Pa. Const. Stat. § 4904 relating to unsworn
        falsification of authorities:

           1. I am the open-records officer for the DAO.

           2. I am familiar with the request at issue in the above-
              captioned appeal.

           3. The guilty plea offer, witness statements, venire list, voir
              dire notes, and weapon item receipt that Appellant seeks
              all relate to a criminal investigation.

           4. The guilty plea offer and witness statements that
              Appellant seeks contain information assembled as a
              result of the performance of an inquiry into a criminal
              incident or an allegation of criminal wrongdoing.

           5. The venire list that Appellant seeks is not created by
              employees of the DAO. It is created by employees of the
              Pennsylvania judiciary.

           6. The venire list contains the names of jurors who voted to
              convict Appellant. Accordingly, providing it to Appellant
              would endanger the safety of those jurors.

Affidavit, 9/23/16, at 1.




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Attorney’s Office to provide documentation related to a guilty plea offer, citing

Pa.R.Crim.P. 902(E)(1) and Commonwealth v. Frey, 41 A.3d 605, 607

(Pa.Super. 2012).

       Williams also filed several pro se documents in which he asserted he had

submitted his RTKL request on August 16, 2016, and had submitted a similar

request in 2012. See “Memorandum of Law in Support of 2nd PCRA,” filed

11/30/16; “Motion to include concise state[ment] of material facts,” filed

12/20/16; “Memorandum of Law in Support of Second PCRA,” filed 11/9/17.

Williams argued that his petition was timely because he had acted with due

diligence in discovering the existence of the plea offer, through his RTKL

requests in 2012 and 2016, and had filed his petition within 60 days of

receiving the affidavit admitting a guilty plea offer had existed. Williams

attached copies of his 2012 RTKL request and two 2012 responses from the

District Attorney’s Office stating that his request was being reviewed.

       The court appointed counsel,6 who filed a motion to withdraw and no-

merit letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.

1988) (en banc). The PCRA court sent a Rule 907 notice of its intention to

dismiss Williams’ petition without a hearing. See Pa.R.Crim.P. 907. Williams

filed a pro se response. The PCRA court dismissed the petition as untimely,

and allowed counsel to withdraw.

____________________________________________


6Although the docket entries and certified record do not indicate when counsel
was appointed, the PCRA court opinion states counsel was appointed on
December 18, 2017.

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       Williams appealed, and raises a sole issue: “Did the lower court err on

the side of fact and law by dismissing a second P.C.R.A. without a discovery

and evidentiary hearing in violation of due process of law by claiming the issue

of after discovered fact evidence is untimely, waived, and moot[?]” Williams’

Br. at vii.

       Our standard of review of an order denying relief under the PCRA “is

limited ‘to whether the PCRA court’s determination is supported by evidence

of record and whether it is free of legal error.’” Commonwealth v. Hart, 199

A.3d 475, 481 (Pa.Super. 2018) (quoting Commonwealth v. Pew, 189 A.3d

486, 488 (Pa.Super. 2018)).

       The timeliness of a PCRA petition is a jurisdictional prerequisite; if a

petition fails to satisfy the statutory timeliness requirements, a PCRA court

has no jurisdiction to grant relief. Commonwealth v. Rizvi, 166 A.3d 344,

347 (Pa.Super. 2017). A PCRA petition must be filed within one year of the

date the petitioner’s judgment of sentence becomes final, which is at the

conclusion of direct review or the expiration of time for seeking such review.

42 Pa.C.S.A. § 9545(b)(1), (3). As Williams’ 2016 petition was not filed within

one year of the expiration of the time to seek review in the Pennsylvania

Supreme Court, it is facially untimely.

       A petition filed after the one-year deadline may be deemed timely if the

petitioner proves one of three statutory exceptions applies. The “newly

discovered facts” exception applies when “the facts upon which the claim is

predicated were unknown to the petitioner and could not have been

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ascertained by the exercise of due diligence[.]” Id. at § 9545(b)(1)(ii). A

petitioner invoking this exception must prove the petition was filed within 60

days of the earliest date it might have been filed. Id. at § 9545(b)(2).7

       Williams argues his petition is timely because his claim of ineffective

assistance of counsel is based on the District Attorney Office’s response to his

RTKL request. Williams claims the response proves there was a plea offer

made in his case, and that he filed the petition within 60 days of receiving the

response.

       In its Rule 1925(a) opinion, the PCRA court examined the affidavit from

the District Attorney’s Office, and concluded that it does not indicate the

Commonwealth ever communicated a plea offer to Williams’ counsel.8 We

agree. While the response refers to “the guilty plea offer,” it only does so

within a vague reference to Williams’ request for various pieces of information.

The affidavit does not clarify whether a guilty plea offer was made, let alone

offer any supporting documentation. This evidence is insufficient to prove

Williams’ claim of trial counsel ineffectiveness. Nor is it enough to raise an

issue of material fact such as to warrant an evidentiary hearing, which “is not

meant to function as a fishing expedition for any possible evidence that may

support some speculative claim of ineffectiveness.” Commonwealth v.
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742 Pa.C.S.A. § 9545(b)(2) has since been amended to allow a petitioner one
year to file a petition. The amendment applies to claims presented after
December 24, 2017, and thus does not apply to Williams’ 2016 petition.

8Because we affirm on this portion of the PCRA court’s reasoning, we need
not address the other findings of the PCRA court.

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Roney, 79 A.3d 595, 605 (Pa. 2013) (quoting Commonwealth v. Jones,

811 A.2d 994, 1003 n. 8 (Pa. 2002)).

      Moreover, Williams offers no explanation for why he did not submit his

first RTKL request until 2012, 20 years after his judgment of sentence became

final. He has therefore failed to plead sufficient facts to establish he was duly

diligent in seeking out the basis for his ineffectiveness claim, i.e., evidence

that the Commonwealth had made a guilty plea offer. 42 Pa.C.S.A. §

9545(b)(1)(ii).

      To the extent Williams argues the PCRA court erred in failing to grant

his Motion to Compel Discovery, see William’s Br. at 11, Williams has waived

this claim by failing to offer any legal analysis to support it. See

Commonwealth v. Miller, 212 A.3d 1114, 1131 (Pa.Super. 2019); Pa.R.A.P.

2119(a). Furthermore, discovery in the PCRA context “is only permitted upon

leave of court after a showing of exceptional circumstances.” Frey, 41 A.3d

at 611 (citing 42 Pa.C.S.A. § 9545(d)(2); Pa.R.Crim.P. 902(E)(1)). It is the

PCRA court’s discretion to determine whether “exceptional circumstances”

exist, and “mere speculation that exculpatory evidence might exist does not

constitute an exceptional circumstance warranting discovery.” Id. at 611-12.

We cannot conclude the PCRA court abused its discretion in failing to grant

the discovery motion based on Williams’ mere speculation that the District

Attorney’s Office may have evidence of a plea offer. This is particularly so due

to Williams’ failure to plead due diligence.




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      As Williams failed to plead and prove he diligently discovered new facts

that could provide a basis for PCRA relief, we conclude the PCRA court did not

err in dismissing his petition as untimely.

      Order affirmed.

Judge Kunselman joins the Memorandum.

Judge Ott concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/2019




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