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### -S35026-19
NON-PRECEDENTIAL DECISION - SEE 

### SUPERIOR COURT 

### I.O.P. 

### 65.37 COMMONWEALTH OF PENNSYLVANIA

1 IN THE SUPERIOR COURT OF PENNSYLVANIA

v. HARRYWOLDSMIT 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.: 

### FILEDAUGUST 

### 12, 

### 2019 Appellant, HarryWoldsmit,appeals 

### from an

### orderdismissing 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 nearVenango 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 SeniorJudge assigned to the Superior Court.J

### -S35026-19 [Appellant] then began 

### vaginally penetrating the 

### victim and 

### eventually 

### digitally penetrating the 

### victim's anus. 

### After [Appellant] wasfinished 

### attacking 

### [the

### victim], hetold her he was a police 

### officer and 

### that hewould kill her if necessary. 

### After more 

### threats, [Appellant] drove 

### [the

### victim] a

### short distance and lether 

### outof 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 

### approximatelytwo and a halfweeks later. On 

### September 2, 2005, 

### [Appellant] coaxed his second 

### victim 

### [...] into his car and promised to payher $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] attemptedto

### 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. OnJuly 18, 2006, both

### victims appeared in 

### courtto

### testify against 

### [Appellant] at a scheduled consolidated

### jurytrial. Thetwo 

### victims had never 

### met each 

### other priorto 

### 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

### thatthe 

### courtadvise 

### [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 putsomething out

### there

### thatsomeone 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 

### terroristicthreats and one 

### count each 

### of aggravated indecent assaultand 

### impersonating a public 

### servant. On 

### September 8, 2006, 

### Appellantfiled a 

### pro
se 

### motion to 

### withdraw his 

### guilty plea, claiming

### that (1) hewas innocent ofthe

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### -S35026-19 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 ofthe 

### complainants

### fortrial, which ledto 

### the issuance 

### of a bench 

### warrant for her 

### arrest and an 

### initial dismissal of the charges 

### againstAppellant relating to her assault. On October 18, 19 and 20, 2006, 

### the 

### trial court held hearings on 

### Appellant's motion. The 

### Commonwealth presented

### testimonyfrom 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 

### telephoneconversation

### thatAppellant 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 ofthe 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 shewished to cut

### offAppellant'sabilityto 

### contact her, and 

### (4) she replied 

### that she did not 

### want access cut off. The 

### court determined 

### that Appellant's ex- 

## -3J

### -S35026-19 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 knewthetwo

### victimswere key witnesses

### fortheCommonwealth 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 tothe 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. Appellantfiled a 

### timely notice of appeal, but 

### this Court dismissed the appeal

on October 17, 2012 due to 

### Appellant'sfailure 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) (enbanc). 

## -4J

### -S35026-19

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

### Appellantadmitted raping one

### ofthe

### victims. Seefootnote 1,

### supra. On 

### September 12,2013, the PCRA 

### courtdismissed

### 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 

### satisfythe newlydiscovered evidenceexception 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. 

### Appellantalso 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 

## -5J

### -S35026-19

statementof 

### matters complained ofon appeal, the PCRA 

### courtfiled 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 Briefat 6 

### (with minor grammatical revisions). Before we may address the 

### merits of this appeal, we 

### must determine 

### whetherthe PCRA

### court had

### jurisdictionto 

### entertainAppellant's PCRA

### petition. Underthe PCRA,the 

### petitionermust move 

### forpost

### -conviction reliefwithin 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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### -S35026-19

United States and 

### the Supreme Court of Pennsylvania, orat 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 ofthe

### Constitutionor lawsof

### this Commonwealth orthe 

### Constitution or laws 

### ofthe United 

### States; (ii) the facts upon which

### the claim is predicated were unknown to the 

### petitionerand could not have been ascertained by

### theexercise ofdue 

### diligence; or 

### (iii) the 

### rightasserted is a

### constitutional right

### thatwas recognized bythe Supreme Court ofthe United States or the Supreme Court of Pennsylvania

### after the 

### time period provided in 

### this section and has been held by

### thatcourt to 

### apply retroactively. 42 Pa.C.S.A. § 

### 9545(b)(1)(i)-(iii). Any 

### petition 

### attempting to invoke one 

### of theseexceptions"shall befiled 

### within 60 days

### ofthedatethe claim could have been 

### presented." 42 Pa.C.S.A. § 

### 9545(b)(2). Here, 

### Appellant's 

### judgment of sentence became final in March 2009, 

### thirtydays 

### afterthis Courtaffirmed his

### judgment ofsentence on

### direct appeal. His 

### present 

### petition, filed in 2016, is 

### facially untimely. Thus, 

### forthis Courtto 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 

## -7J

### -S35026-19

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, 

### Appellantargued 

### thatdefense counsel could have ascertained the 

### victims'whereabouts at the 

### time Appellantsought 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 exerciseofdue 

### diligence." 

### Commonwealth v. 

### Hart, 199A.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

### "pleadand 

### provethe facts grounding 

### [his] claim were unknown to 

## -8J

### -S35026-19 

### [him] and 

### [he] could not have discovered those factssooner

### with theexercise of due diligence

. . 

### ." 

### Commonwealth v. 

### Shiloh, 170 A.3d 553, 559 (Pa. Super. 

### 2017) (emphasis in 

### original). In his PCRA 

### petition, Appellantfailed to 

### state the date he obtained the publicdocuments in question. He also failed to allege

### that he could not have discoveredthese

### documents sooner

### through theexerciseofduediligence. 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 lackof

### jurisdiction. Order

### affirmed.

3 Even if 

### Appellant's petition satisfied the newly discovered evidence to the 

### statuteof 

### limitations, his claims lacked arguable 

### merit. As

### theCommonwealth points out, 

### the documents appended to 

### Appellant's PCRA 

### petition show 

### that the earliest contact between police and 

### either ofthe women was October 31, 2006, 

### almosttwoweeks

### afterthe 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 

### timeAppellant presented his 

### motion to 

### withdraw his plea. As 

### forAppellant'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 

### thatthe Commonwealth was 

### virtually certain to 

### prevail, because the 

### victims appeared in 

### court, ready and 

### willing to 

### testify against him. 

## -9J

### -S35026-19

Judgment Entered.

J seph D. 

### Seletyn, Prothonotary

Date: 

### 8/12/19

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