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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT 

OF PENNSYLVANIA 

v. 

HARRY WOLDSMIT 

Appellee 

Appellant No. 2789 EDA 2018 

Appeal from the PCRA Order Entered September 10, 2018 

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No: CP-51-CR-1005951-2005 

BEFORE: OLSON, J., STABILE, J. and STRASSBURGER, J.* 

MEMORANDUM BY STABILE, J.: FILED AUGUST 12, 2019 

Appellant, Harry Woldsmit, appeals from an order dismissing his petition 

for relief under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 

9541-9546, as untimely. We affirm. 

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

are as follows: 

On two different occasions, [Appellant], 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, 

[Appellant] made an agreement with the victim [...] to receive 

oral sex in exchange for $60. [Appellant] drove the victim to a 

location near Venango and Richmond and the victim asked him for 

her money. [Appellant] held a knife to the victim's throat and 

pulled down the victim's pants. 

* Retired Senior Judge assigned to the Superior Court. 
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[Appellant] then began vaginally penetrating the victim and 

eventually digitally penetrating the victim's anus. After 

[Appellant] was finished attacking [the victim], he told her he was 

a police officer and that he would kill her if necessary. After more 

threats, [Appellant] 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 [Appellant] to 

Detective Norma Serrano at the Special Victim's Unit 

approximately two and a half weeks later. 

On September 2, 2005, [Appellant] coaxed his second victim [...] 

into his car and promised to pay her $40 in exchange for oral sex. 

While in the back seat, [Appellant] took out a knife and held it 

against [the victim's] neck. [Appellant] then demanded 

intercourse and threatened to kill [the victim] if she did not 

comply. [The victim] attempted to fight off [Appellant] and during 

the struggle, [Appellant] 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 

[Appellant] at a scheduled consolidated jury trial. The two victims 

had never met each other prior to entering the courtroom on that 

day. [Appellant] 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 [Appellant] entered his guilty plea, 

the Commonwealth requested that the court advise [Appellant] 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 [Appellant] quipped 'I 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, Appellant pleaded guilty to two counts each of rape 

and terroristic threats and one count each of aggravated indecent assault and 

impersonating a public servant. On September 8, 2006, Appellant filed a pro 

se motion to withdraw his guilty plea, claiming that (1) he was innocent of the 

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charges; (2) 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 (3) his attorney was not willing to help him. Motion to 

Withdraw Guilty Plea, 9/8/06. In response, the Commonwealth argued that 

it would suffer substantial prejudice if the court permitted Appellant to 

withdraw his plea, because it could no longer locate the two complainants, 

both of whom had drug addiction problems and worked as prostitutes. The 

Commonwealth indicated that Appellant was aware of the problems the 

Commonwealth had locating one of the complainants for trial, which led to the 

issuance of a bench warrant for her arrest and an initial dismissal of the 

charges against Appellant relating to her assault. 

On October 18, 19 and 20, 2006, the trial court held hearings on 

Appellant's motion. The Commonwealth presented testimony from detectives 

that they were unable to locate the victims following Appellant's guilty plea.' 

1- While not directly relevant to the present appeal, the Commonwealth 

introduced a recording of a telephone conversation that Appellant had with his 

ex-wife following his incarceration in which he admitted raping one of the 

victims. During the hearing on his motion to withdraw his plea, Appellant 

argued that his ex-wife acted as an agent of the Commonwealth in procuring 

his confession. The Commonwealth informed the court that (1) Appellant's 

ex-wife contacted the prosecutor and related what Appellant said on the 

phone, (2) the prosecutor informed the ex-wife that all calls made and 

received by inmates were recorded, (3) the prosecutor asked the ex-wife if 

she wished to cut off Appellant's ability to contact her, and (4) she replied that 

she did not want access cut off. The court determined that Appellant's ex- 

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Appellant took the position that the complainants were available to testify 

during trial. 

On October 20, 2006, the trial court denied Appellant's motion to 

withdraw his plea. On January 18, 2007, the court sentenced Appellant to 

twenty to forty years' imprisonment. Appellant appealed to this Court and 

argued that the trial court erred by refusing to permit him to withdraw his 

guilty plea. On February 3, 2009, this Court affirmed, reasoning: "Appellant 

knew the two victims were key witnesses for the Commonwealth and virtually 

assured their absence at any future proceeding by initially pleading guilty. 

Appellant's actions, therefore, substantially prejudiced the Commonwealth." 

Commonwealth v. Woldsmit, 440 EDA 2008, at 8-9 (Pa. Super., 2/3/09) 

(unpublished memorandum). Appellant did not appeal to the Supreme Court. 

In 2010, Appellant filed a timely PCRA petition and then 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 petitions and granted counsel permission to withdraw. 

Appellant filed a timely notice of appeal, but this Court dismissed the appeal 

on October 17, 2012 due to Appellant's failure to file an appellate brief. 

wife did not act as an agent of the Commonwealth during the telephone 

conversation. 

2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. 

Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 

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On October 10, 2012, shortly before the dismissal of his PCRA appeal, 

Appellant filed a second pro se PCRA petition. Appellant claimed that he had 

newly discovered evidence that his wife "set up" the telephone conversation 

in which Appellant admitted raping one of the victims. See footnote 1, supra. 

On September 12, 2013, the PCRA court dismissed Appellant's petition without 

a hearing. Appellant appealed to this Court, which affirmed on October 10, 

2014 on the basis that the petition was untimely under the PCRA's statute of 

limitations and did not satisfy the newly discovered evidence exception to the 

one-year limitation period. Commonwealth v. Woldsmit, 2757 EDA 2013 

(Pa. Super., 10/10/14) (unpublished memorandum). 

On September 19, 2016, Appellant filed his third PCRA petition, the 

petition presently under review, claiming that trial counsel was ineffective by 

failing to adequately investigate the complainants' whereabouts prior to 

arguing Appellant's motion to withdraw his guilty plea. Appellant also alleged 

that counsel was ineffective for failing to object to a misstatement in the 

affidavit of probable cause underlying Appellant's criminal complaint that 

Appellant was African American instead of Caucasian. On July 25, 2018, the 

PCRA court issued a notice of intent to dismiss Appellant's petition without 

further proceedings pursuant to Pa.R.Crim.P. 907. On August 14, 2018, 

Appellant filed a response to the notice of intent. On September 10, 2018, 

the PCRA court dismissed Appellant's petition. Appellant timely appealed to 

this Court. On December 6, 2018, without ordering Appellant to file a 

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statement of matters complained of on appeal, the PCRA court filed an opinion 

concluding that it properly dismissed Appellant's petition as untimely. 

In this Court, Appellant raises the following issues: 

1) Did the Judge err by dismissing Appellant's petition as time - barred? 

I) Did Appellant file his PCRA petition with the court 

correctly? 

II) Did the Judge abuse his discretion? 

2) Did the Commonwealth's misconduct create a violation of 

Appellant's due process rights? 

I) Did the Commonwealth make statements through a 

third party that misled the court into making the 

wrong decision? 

3) Did Appellant's attorney's ineffectiveness hinder his client's due 

process rights of law? 

I) Did the attorney follow Appellant's wishes in his 

defense? 

II) Did Appellant's attorney investigate all strategies of 

defense? 

Appellant's Brief at 6 (with minor grammatical revisions). 

Before we may address the merits of this appeal, we must determine 

whether the PCRA court had jurisdiction to entertain Appellant's PCRA petition. 

Under the PCRA, the petitioner must move for post -conviction relief within one 

year of the date the judgment of sentence becomes final. 42 Pa.C.S.A. § 

9545(b)(1). A judgment becomes final under the PCRA "at the conclusion of 

direct review, including discretionary review in the Supreme Court of the 

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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 one-year 

limitation period does not apply, however, when the petitioner pleads and 

proves that: 

(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)(i)-(iii). Any petition attempting to invoke one of 

these exceptions "shall be filed within 60 days of the date the claim could have 

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

Here, Appellant's judgment of sentence became final in March 2009, 

thirty days after this Court affirmed his judgment of sentence on direct appeal. 

His present petition, filed in 2016, is facially untimely. Thus, for this Court to 

have jurisdiction to review his petition on the merits, he must prove that he 

meets one or more of the exceptions in Section 9545(b). 

Although Appellant's brief is not a model of clarity, he appears to 

contend that his present petition is timely under the newly discovered 

evidence exception to the statute of limitations, Section 9545(b)(1)(ii). We 

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hold that Appellant failed to plead facts in his PCRA petition that, if proved, 

satisfy this exception. 

In his PCRA petition, Appellant submitted the First Judicial District 

criminal docket entries for two women whose names match those of his 

victims and Facebook excerpts from one of these women. Based on these 

documents, Appellant argued that defense counsel could have ascertained the 

victims' whereabouts at the time Appellant sought to withdraw his guilty plea 

and procured their attendance at trial. 

A petitioner satisfies the newly discovered facts exception when the 

petitioner pleads and proves that "(1) the facts upon which the claim [is] 

predicated were unknown and (2) could not have been ascertained by the 

exercise of due diligence." Commonwealth v. Hart, 199 A.3d 475, 481 (Pa. 

Super. 2018). Due diligence "requires reasonable efforts by a petitioner, 

based on the particular circumstances, to uncover facts that may support a 

claim for collateral relief," but does not require "perfect vigilance [or] 

punctilious care." Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa. 

2010). In general, a presumption exists that information of public record is 

not "unknown" for purposes of proving the newly discovered fact exception, 

but this presumption does not apply to pro se prisoner petitioners. 

Commonwealth v. Burton, 158 A.3d 618, 620 (Pa. Super. 2017). Even 

though a pro se prisoner petitioner does not labor under this presumption, he 

must still "plead and prove the facts grounding [his] claim were unknown to 

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[him] and [he] could not have discovered those facts sooner with the exercise 

of due diligence . . ." Commonwealth v. Shiloh, 170 A.3d 553, 559 (Pa. 

Super. 2017) (emphasis in original). 

In his PCRA petition, Appellant failed to state the date he obtained the 

public documents in question. He also failed to allege that he could not have 

discovered these documents sooner through the exercise of due diligence. Nor 

did Appellant correct these omissions in his response to the PCRA court's 

notice of intention to dismiss his petition without a hearing. Thus, Appellant 

failed to plead facts that satisfy the newly discovered evidence exception or 

demonstrate that he filed his petition within sixty days of the date he could 

have presented this claim.3 The PCRA court properly dismissed Appellant's 

petition for lack of jurisdiction. 

Order affirmed. 

3 Even if Appellant's petition satisfied the newly discovered evidence to the 

statute of limitations, his claims lacked arguable merit. As the Commonwealth 

points out, the documents appended to Appellant's PCRA petition show that 

the earliest contact between police and either of the women was October 31, 

2006, almost two weeks after the hearings on his motion to withdraw his guilty 

plea. Commonwealth's Brief at 9-10. Consequently, the documents did not 

overcome the Commonwealth's argument that they could not locate the 

victims at the time Appellant presented his motion to withdraw his plea. As 

for Appellant's second claim-a complaint that the affidavit of probable cause 

underlying his criminal complaint identified him as African American instead 

of Caucasian-Appellant fails to demonstrate that this claim had arguable 

merit. Appellant did not plead guilty due to this clerical error. He pled guilty 

because he knew on the scheduled date of trial that the Commonwealth was 

virtually certain to prevail, because the victims appeared in court, ready and 

willing to testify against him. 

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Judgment Entered. 

J seph D. Seletyn, 

Prothonotary 

Date: 8/12/19 

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