J-S05003-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                     Appellee              :
                                           :
             v.                            :
                                           :
HOBART LEE WHITT,                          :
                                           :
                     Appellant             : No. 1234 WDA 2013

                     Appeal from the PCRA Order June 18, 2013,
                     Court of Common Pleas, Allegheny County,
                  Criminal Division at No. CP-02-CR-0012268-1993

BEFORE: DONOHUE, SHOGAN and STABILE, JJ.

MEMORANDUM BY DONOHUE, J.:                          FILED MARCH 03, 2015

       Appellant, Hobart Lee Whitt (“Whitt”), appeals the order entered on

June 18, 2013 in the Allegheny County Court of Common Pleas, dismissing

his second petition for relief pursuant to the Post-Conviction Relief Act

(“PCRA”).1    For the reasons set forth herein, we affirm the PCRA court’s

order.

       A brief summary of the relevant facts and procedural history is as

follows. On April 21, 1994, a jury found Whitt guilty of one count of rape.

On June 1, 1994, the trial court sentenced Whitt to six to fifteen years of

incarceration. Whitt filed a timely appeal on June 23, 1994. After a panel of

this Court affirmed the trial court’s judgment of sentence on July 19, 1995,

Whitt filed a petition for allowance of appeal to our Supreme Court, which



1
    42 Pa.C.S.A. §§ 9541-46.
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the court denied on December 19, 1995.        On July 23, 1996, Whitt timely

filed his first PCRA petition, which the PCRA court ultimately dismissed on

April 20, 2000. Whitt did not seek an appeal.

      On June 18, 2012, Whitt filed the instant PCRA petition, claiming

ineffective assistance of counsel, insufficiency of evidence, and that the trial

court imposed an illegal sentence.      On June 29, 2012, the PCRA court

appointed Scott Coffey (“Attorney Coffey”) to represent Whitt.            After

reviewing Whitt’s petition, Attorney Coffey determined that the petition was

time barred and that no meritorious issues existed.           Attorney Coffey

thereafter filed a motion to withdraw as PCRA counsel on October 2, 2012.

The PCRA court granted Attorney Coffey’s petition to withdraw on December

18, 2012.

      On June 18, 2013, the PCRA court dismissed Whitt’s PCRA petition.

Whitt timely filed an appeal to this Court on July 12, 2013.2       On appeal,

Whitt raises the following issues for our review:

            1. Was there relevancy of time-bar offered by courts
            when record of negligence and obstruction by
            government officials exists through omissions/lost
            filings of petitions, motions, statements[?]

            2. Did [the] court err to protect the witness stand
            from false testimony offered by commonwealth
            witness[?]



2
  Whitt filed a duplicate notice of appeal on July 15, 2013 and an Amended
Proof of Service pursuant to Rule 906 of the Pennsylvania Rules of Appellate
Procedure on July 24, 2013. Pa.R.A.P. 906.


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            3. Was trial counsel ineffective by denying [Whitt]
            proper representation through failure to interview
            and/or investigation of witnesses for defense, failure
            to challenge weight and sufficiency of evidence,
            failing to keep [Whitt] apprised of all case
            particulars[?]

Whitt’s Brief at 5.

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court's findings of fact, and whether the PCRA

court's determination is free of legal error.   Commonwealth v. Phillips,

31 A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry,

877 A.2d 479, 482 (Pa. Super. 2005), appeal denied, 42 A.3d 1059 (Pa.

2012)). A PCRA petitioner must establish the claim by a preponderance of

the evidence. Commonwealth v. Gibson, 925 A.2d 167, 169 (Pa. 2007).

      In this case, the PCRA court dismissed Whitt’s petition without a

hearing after receiving and reviewing Attorney Coffey’s “no-merit” letter and

petition to withdraw as counsel pursuant to Pennsylvania v. Finley, 481

U.S. 551 (1987) and Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).

See Order of Court, 6/18/12.      In its opinion filed pursuant to Pa.R.A.P.

1925(a), the PCRA court determined that Whitt’s PCRA petition was untimely

and that no cognizable exception existed to overcome its untimeliness.

PCRA Court Opinion, 7/9/14, at 4.

      Before reaching the merits of a petitioner’s claim, section 9545 of the

PCRA requires that “[a]ny petition under this subchapter, including a second




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or subsequent petition, shall be filed within one year of the date the

judgment becomes final.” 42 Pa.C.S.A. § 9545(b)(1). 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).

      This Court has held that the timeliness requirement of the PCRA is

“mandatory and jurisdictional in nature.”    Commonwealth v. McKeever,

947 A.2d 782, 784-85 (Pa. Super. 2008) (citing Commonwealth v. Davis,

916 A.2d 1206, 1208 (Pa. Super. 2007)). Therefore, “no court may properly

disregard or alter them in order to reach the merits of the claims raised in a

PCRA petition that is filed in an untimely manner.” Id.

      In this case, Whitt’s judgment became final on March 19, 1996, ninety

days after our Supreme Court denied his petition for allowance of appeal.

See Commonwealth v. Feliciano, 69 A.3d 1270, 1275 (Pa. Super. 2013)

(“under the PCRA, petitioner’s judgment of sentence becomes final ninety

days after our Supreme Court rejects his or her petition for allowance of

appeal since petitioner had ninety additional days to seek review with the

United States Supreme Court.”). Thus, under the timeliness requirement of

the PCRA, Whitt’s petition must have been filed by March 19, 1997. Whitt

did not file the instant petition, however, until June 18, 2012, more than




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fifteen years after his judgment became final. As a result, Whitt’s petition is

facially untimely.

        Nevertheless, although the timeliness requirement is mandatory and

jurisdictional, “an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is

met.”     Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super.

2013). The three 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 Supreme Court of Pennsylvania after
             the time period provided in this section and has been
             held by that court to apply retroactively.

Id. at n.1 (citing 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii)). The petition invoking

an exception “shall be filed within 60 days of the date the claim could have

been presented.” Commonwealth v. Davis, 86 A.3d 883, 888 (Pa. Super.

2014) (citing 42 Pa.C.S.A. § 9545(b)(2)).

        In this case, Whitt attempts to invoke two of the exceptions to the

timeliness requirement.      First, Whitt argues that “government official



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obstruction has so harmed [Whitt] that he has no idea of the time

calculations which regard his appeal being filed on time.” Whitt’s Brief at 9.

Thus, Whitt asserts that the government interference exception under

42 Pa.C.S.A. § 9545(b)(1)(i) applies in this case.

      In support of his assertion, Whitt argues that trial counsel and

Attorney Coffey failed to perform their required duties and abandoned him.

Attorney   abandonment     does   not   constitute   government   interference,

however, as the PCRA provides that “‘government officials’ shall not include

defense counsel, whether appointed or retained.” 42 Pa.C.S.A. § 9545(b)(4).

Whitt fails to name any government officials or provide any argument as to

how government officials obstructed his ability to timely file a petition.

Accordingly, Whitt fails to establish that the government interference

exception applies to the case herein.

      Second, Whitt argues that the after-discovered evidence exception

under 42 Pa.C.S.A. § 9545(b)(1)(ii) applies in this case. Whitt asserts that

Attorney Coffey’s abandonment and failure to file an appellate brief

constitutes a “newly discovered fact for purposes of a timeliness exception.”

Whitt’s Brief at 9. In support of his claim, Whitt cites to Commonwealth v.

Bennett, 930 A.2d 1264 (Pa. 2007) for the proposition that abandonment

by counsel can be a newly discovered fact for purposes of a timeliness

exception. Whitt’s Brief at 9.




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      In Bennett, the PCRA court appointed counsel to the appellant,

Bennett, after he filed a timely pro se PCRA petition.   Id. at 1266.   After

appointed counsel failed to file an appellate brief, this Court dismissed

Bennett’s appeal. Id. Our Supreme Court determined that counsel’s failure

to file an appellate brief and perfect the appeal, which resulted in this

Court’s dismissal of the appeal, constituted abandonment as it was “the

functional equivalent of having no counsel at all.”      Id. at 1273.    Our

Supreme Court further concluded that counsel’s abandonment could serve as

a newly discovered fact, as

            allowing such claims to go forward would not
            eviscerate the time requirements crafted by the
            Legislature [in the PCRA].         Rather, subsection
            (b)(1)(ii) is a limited extension of the one-year time
            requirement under circumstances when a petitioner
            has not had the review to which he was entitled due
            to a circumstance that was beyond his control.

Id.

      In this case, the record does not support Whitt’s assertion that

Attorney Coffey abandoned him and failed to file an appellate brief, such

that Attorney Coffey’s representation amounted to “the functional equivalent

of having no counsel at all.” See Id. To the contrary, the record reflects

that Attorney Coffey appropriately filed a Turner/Finley letter and a motion

to withdraw as counsel in lieu of an appellate brief.

      Whitt also contends that evidence consisting of “at least one (1)

independent witness who had been in the company of the victim when she



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confessed to perjury at [Whitt’s] trial[,]” proves that he is innocent, and

qualifies as newly discovered evidence.     Whitt’s Brief at 11.   Whitt claims

that he did not discover the evidence until after litigation of his prior PCRA

petition and could not previously discover the evidence because trial and

appellate counsel abandoned him. Id. at 12.

      This Court has established that

            [i]n order to sustain an untimely PCRA petition under
            the after-discovered evidence exception, a petitioner
            must show that the evidence: (1) has been
            discovered after the trial and could not have been
            obtained prior to the conclusion of the trial by the
            exercise of reasonable diligence; (2) is not merely
            corroborative or cumulative; (3) will not be used
            solely for impeachment purposes; and (4) is of such
            a nature and character that a different verdict will
            likely result if a new trial is granted.

Commonwealth v. Johnson, 841 A.2d 136, 140-41 (Pa. Super. 2003).

      Attorney Coffey, in his Turner/Finley letter, determined that the

evidence provided by the newly discovered witness “would simply be solely

used to impeach the victim’s testimony.”         Attorney Coffey’s Motion to

Withdraw as Counsel, 10/2/12, at 4 (Turner/Finley No-Merit Letter); See

also PCRA Court Opinion, 7/9/14, at 5. In his appellate brief, Whitt does

not offer any argument to support a contrary determination, and our review

of the certified record on appeal has not disclosed any basis for a contrary

determination. As a result, Whitt failed to satisfy the four factors established




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in Johnson and consequently fails to establish that the newly discovered

evidence exception applies.

     Finally, we note that Whitt advances several arguments that trial

counsel and appellate counsel provided ineffective assistance of counsel,

including a claim that counsel failed to investigate witnesses, such as the

aforementioned witness, and evidence that exonerate him. See Whitt’s Brief

at 11-13.   This Court has held, however, that “allegations of ineffective

assistance of counsel will not overcome the jurisdictional timeliness

requirements of the PCRA.”    Commonwealth v. Pollard, 911 A.2d 1005,

1007 (Pa. Super. 2006) (quoting Commonwealth v. Wharton, 886 A.2d

1120, 1127 (Pa. 2005)).    Accordingly, we conclude that Whitt’s ineffective

assistance of counsel arguments do not invoke one of the timeliness

exceptions to the PCRA.

     Whitt’s failure to prove that at least one of the three timeliness

exceptions in section 9545 applies to his PCRA petition renders his petition

untimely and therefore, the petition must be dismissed.      Accordingly, we

conclude that the PCRA court did not err when it dismissed Whitt’s petition.

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/3/2015




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