J-S12014-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF 

PENNSYLVANIA

v.

LARRY WOODSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 672 MDA 2017

Appeal from the PCRA Order March 29, 2017

In the Court of Common Pleas of Luzerne County Criminal Division at 

No(s): CP-40-CR-0002033-2007

BEFORE: LAZARUS, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.: FILED APRIL 23, 2018

Larry Woodson appeals, pro se, from the order, entered in the Court of 

Common Pleas of Luzerne County, dismissing as untimely his third petition 

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

9541-9546. Upon review, we affirm based upon the opinion authored by the 

Honorable Tina Polachek Gartley. 

On October 10, 2009, a jury found Woodson guilty of multiple drug 

charges stemming from an investigation into drug trafficking in Luzerne 

County. Woodson was sentenced on November 19, 2009, to an aggregate 

term of 210 to 420 months’ incarceration. This Court affirmed his judgment 

of sentence on August 25, 2010 and he did not seek allowance of appeal to 

the Supreme Court. Thus, Woodson’s judgment of sentence became final on 

September 24, 2010. 
J-S12014-18

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Woodson subsequently filed two PCRA petitions, both of which were 

denied by the PCRA court, whose orders were affirmed by this Court. Woodson 

filed the instant petition, his third, on March 8, 2016. Following a Grazier

hearing, Woodson was allowed to proceed pro se, and standby counsel was 

appointed. Following a hearing, the PCRA court denied relief by order dated 

March 29, 2017. This timely appeal follows, in which Woodson raises the 

following issues for our review, verbatim:

1

1. Whether the United States Supreme Court’s decision in 

Montgomery v. Louisiana, 136 S.Ct. 718 (2016), which 

[Woodson] contends is a new rule of [c]onstitutional law that 

require[s] the retroactive application of Alleyne v. United 

States, [570 U.S. 99] (2013), [] which is an extension of the 

United States Supreme Court’s decision in Apprendi v. New 

Jersey, [530 U.S. 466 (2000)]. 

2. Whether the PCRA [c]ourt erred in denying [Woodson’s] [p]ost 

[c]onviction [r]elief petition as “untimely” filed where [Woodson] 

established that his after-discovered evidence claim was within 

the plain language of the timeliness exception set forth in 42 

Pa.C.S.A. 9545(b)(1)(ii) and [s]ection 9545(b)(2) in accordance 

with Commonwealth v. Lark, [] 746 A.2d 585 (Pa. 1999), where 

under [s]ection [] 9545(b)(2), a petitioner has (60) days to file a 

petition from the date the claim could have been presented.

Brief of Appellant, at 3 (some brackets and italicization omitted). 

We begin by noting our well-settled standard of review: 

On appeal from the denial of PCRA relief, our standard and scope 

of review is limited to determining whether the PCRA court’s 

findings are supported by the record and without legal error. Our 

scope of review is limited to the findings of the PCRA court and 

the evidence of record, viewed in the light most favorable to the 

____________________________________________

1 By order dated March 13, 2018, this Court granted Woodson’s application 

to strike the Commonwealth’s brief as untimely, pursuant to Pa.R.A.P. 2188.
J-S12014-18

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prevailing party at the PCRA court level. The PCRA court’s 

credibility determinations, when supported by the record, are 

binding on this Court. However, this Court applies a de novo

standard of review to the PCRA court’s legal conclusions.

Additionally, courts will not entertain a second or subsequent 

request for PCRA relief unless the petitioner makes a strong prima 

facie showing that a miscarriage of justice may have occurred. 

Appellant makes a prima facie showing of entitlement to relief only 

if he demonstrates either that the proceedings which resulted in 

his conviction were so unfair that a miscarriage of justice occurred 

which no civilized society could tolerate, or that he was innocent 

of the crimes for which he was charged.

Commonwealth v. Medina, 92 A.3d 1210, 1214–15 (Pa. Super. 2014) 

(citations, quotation marks, and brackets omitted). 

Here, the PCRA court concluded that Woodson’s petition was untimely 

and, thus, it lacked jurisdiction to consider its merits. The timeliness of a 

post-conviction petition is jurisdictional. Commonwealth v. Lewis, 63 A.3d 

1274, 1280–81 (Pa. Super. 2013), quoting Commonwealth v. Chester, 895 

A.2d 520, 522 (Pa. 2006) (“[I]f a PCRA petition is untimely, neither this Court 

nor the [PCRA] court has jurisdiction over the petition. Without jurisdiction, 

we simply do not have the legal authority to address the substantive claims.”). 

Generally, a PCRA petition, including a second or subsequent petition, must 

be filed within one year of the date the judgment of sentence is final unless 

the petition alleges, and the petitioner proves, that an exception to the time 

for filing the petition2is met, and that the claim was raised within 60 days of 

____________________________________________

2 The statutory exceptions to the time bar are as follows:
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the date on which it became available. 42 Pa.C.S.A. § 9545(b) and (c). Here, 

Woodson’s judgment of sentence became final on or about September 24, 

2010, when the time for filing a petition for allowance of appeal to our 

Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 1113. 

Thus, his March 2016 petition, filed almost 51⁄2 years after his judgment of 

sentence became final, was patently untimely. Unless Woodson pled and 

proved one of the timeliness exceptions under 42 Pa.C.S.A. § 9545(b)(1), the 

PCRA court was without jurisdiction to consider the merits of the petition.

In an attempt to overcome the time bar, Woodson invokes both the 

newly-discovered facts and newly-recognized constitutional right exceptions 

to the PCRA time bar. First, Woodson asserts that the U.S. Supreme Court’s 

decision in Alleyne, in which the Court held that any fact that increases the 

penalty for a crime must be treated as an element of the offense and found 

____________________________________________

(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).
J-S12014-18

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beyond a reasonable doubt by a jury, is a new rule of constitutional law made 

retroactively applicable to his case by virtue of the Court’s ruling in 

Montgomery. Accordingly, Woodson argues his petition is subject to the 

exception to the time bar set forth in section 9545(b)(1)(iii). Second, 

Woodson asserts that his alleged discovery in September 2016 of a 

photograph showing a scar on his face, taken in prison in 2006 prior to trial in 

this matter, is a newly-discovered fact under, section 9545(b)(1)(ii), which 

casts doubt on his identity as the person who sold the drugs to a confidential 

informant. 

Upon consideration of Woodson’s brief, the relevant law, and the 

certified record in this matter, we conclude that Judge Polachek Gartley’s 

opinion thoroughly, comprehensively and correctly disposes of the issues 

Woodson raises on appeal. Specifically, we concur with the trial court’s 

conclusions that: (1) pursuant to Commonwealth v. Washington, 142 A.3d 

810 (Pa. 2016), Alleyne does not apply retroactively to cases pending on 

collateral review; and (2) the photograph taken in 2006 is not newlydiscovered evidence, as Woodson was present when the photograph was 

taken and he could have obtained the photograph earlier with the exercise of 

due diligence. Moreover, Woodson’s face was present at trial and the jury had 

an opportunity to observe his scar. Accordingly, we affirm based on the 

opinion of the PCRA court. The parties are directed to attach a copy of that 

opinion in the event of further proceedings in this matter.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/23/18
Circulated 03/29/2018 01:18 PM

IN THE COURT OF COMMON PLEAS 

OF LUZERNE COUNTY 

COIVIMOl\lVVEALTH OF PENNSYLVANIA 

v. CRIMINAL DIVISION 

LPRRY VVOOlJSON No. 2033 of 2007 

OPINION 

Defendant appeals from the denial of his PCRA Petition on March 29, 2017. 

l�i�g_:(UAL AI\ID PROCEDURAL HISTORY: 

In January 2006, the Bureau of Narcotics Investigation and Drug Control and the 

Luzerne County Drug Task Force conducted a joint investigation into drug trafficking in 

Luzerne County. In August 2006, three (3) separate buys of cocaine were completed 

between two (2) different task force officers and the Defendant, Larry Woodson. 

Subsequent thereto, on May 7, 2007 a statewide investigating grand jury 

recommended that charges be brought against Defendant. As a result, on July 25, 2007 

the Attorney General's Office issued an Information against Defendant, which included 

,· _l. 

, thrt-?·e (3) counts of possession of a controlled substance, three (3) counts of delivery of 

. . 

. cocaine, c1np three (3) counts of conspiracy to deliver cocaine. 

i : 

; At the conclusion of a three (3) day jury trial before the Honorable Peter Paul 

. 

• ' < 

Olszewski, .lr., Defendant was found guilty of all the charges on October 10, 2009. He 

was sentenced by Judge Olszewski, Jr., on l\lovember 19, 2009 

.as follows: 

Count IV-Possession With Intent to Deliver-thirty-five (35) to 

seventy (70) months; 
' 

' 

Count V-Possession With Intent to Deliver-thirty-five (35) to 

seventy (70) months consecutive to Count IV; 

Count VI-Possession With Intent to Deliver-thirty-five (35) to 

seventy (70) months consecutive to Count V; 

Count VII- Conspiracy to Commit Possession With Intent to 

Deliver-thirty-five (35) to seventy (70) months consecutive to 

Count VI; 

Count Viti-Conspiracy to Commit Possession With Intent to 

Deliver-thirty-five (35) to seventy (70) months consecutive to 

Count Vil; 

Count IX-Conspiracy to Commit Possession With Intent to 

Deliver-thirty-five (35) to seventy (70) months consecutive to 

Count VIII; 

Count I, Possession of a Controlled Substance-merged with 

Count IV; 

Count 11, Possession of a Controlled Substance-merged with 

CountV; 

Count Ill, Possession of a Controlled Substance-merqed with 

Count VI. 

The result was a sentence of four hundred twenty (420} months in a State 

Correctional Institution. The Defendant filed a motion to modify his sentence which was 

denied by the Court A timely appeal was filed. On August 25, 2010, the Superior 

Court aifirmed Defendant's Judgment of Sentence. 

On June 30, 20'10, Defendant filed his first a Motion for Post Conviction Collateral 

Helief. On December 7, 20'10 and January 23, 20-11, a PCRA hearing was held. On 

June 30, 20·1 ·1, an Opinion and Order was filed denying Defendant's PCRA. On July 

27, 20·1 ·j, a Notice of Appeal was filed to the Superior Court. O� April 11, 2013, 

Defendant filed a Petition for Allowance of Appeal with the Supreme Court of 

Pennsylvania. 

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On April 25, 20'13, Defendant filed a second Motion for Post Conviction Collateral 

f{elief. On July ·10, 20·13, Defendant's PCCH Petition was-dlsmiased due to 

Defendant's pending pro se Petition for Allowance of Appeal with the Supreme Court of 

Pennsylvania. On October 9, 20'13, the Supreme Court of Pennsylvania denied 

Defendant's Petition for Allowance of Appeal. On November 4, 2013, the Superior 

Court affirmed the decision of the trial court denying Defendant's PCRA. 

On IVlarch 8, 2016, Defendant filed a third Motion for Post Conviction Collateral 

F{elief seeldnq relief as to: 

VVhether a "violation of the constitution of this commonwealth 

or the constitution or laws of the United States", pursuant to 

42 Pa. C.S.A. 9543 (a)(2)(i), "the imposition of a sentence 

greater than the lawful maximum", pursuant to 42 Pa. C.S.A. 

9543 (a)(2)(vii), and based on the findings of the United States 

Supreme Court and ruled to be retroactive in Montgomery v. 

Louisiana, 'I 38 S. Ct. 7·1 a (2016). 

On May ·13, 20'16, a Grazier hearing was held and after colloquy Defendant 

· stated he wanted to represent himself. On July 29, 2016, Attorney Watt was appointed 

as stand-by counsel for Defendant. On August 2, 20'16, Defendant filed a supplemental. 

petition for leave to amend his PCRA. On September 3, 2016, Defendant filed a motion 

for funds and private investigator and an amended PCRA Memorandum. On 

Septernber ·16, 20·1 s, Defendant flied a comprehensive brief in support of his PCRA. 

On December 8, 20'16, the Commonwealth filed a motion to bifurcate the PCRA 

and lirnit the scope of the first PCRA hearing to jurisdiction and the Court granted the 

motion. 

3. 
After multiple continuances were granted, the PCRA hearing date was set for 

February '13, 20·17. On 1Vlarch 29, 20-11, the Court denied Defendant's PCRA without 

prejudice based on the Supreme Court of Pennsylvania decision, Commonwealth v. 

·vvashington, ·142 A3d s-10, 20-16 WL 3909088 (July 19, 2016). (See July 19, 2014 Trial 

Court Order). On April ·10, 2017, Defendant filed a Notice of Appeal to the Superior 

Court. 

The Court entered an Order on April 24, 2017 directing befendant to file of 

record a Concise Statement of Errors Complained of on Appeal pursuant to Pa. R.A.P. 

·i 925(b) cll�d serve a copy of same upon the District Attorney and this Court pursuant to 

Pa. R.A. P. ·1925(b )('I). The Order required the Statement to concisely identify each 

,:uling or error Appellant intends to challenge with sufficient detail to identify all pertinent 

issues for the Court to consider. Further, the Order provided that any issue not properly 

included in the Concise Statement and timely filed and served within twenty-one (21) 

clays of the date of the Order shall be deemed waived pursuant to Rule 1925(b). On 

IVlay 8, 20-17, Defendant filed a Concise Statement of Matters Complained of on Appeal 

Pursuant to Rule 'I 925(b). The Commonwealth did not respond to Defendant's Concise 

Statement of Matters Complained of on Appeal. 

QUESTIONS AT ISSUE: 

·J. 'U\/h0fher the United States Supreme Court's decision in 

Jllfrmtgomery v. Louisiana, 136 S. Ct 718 (2016), which 

Appellant contends is a new rule of Constitutional law that 

rnquirn the retroactive application of Alleyne v. United 

Sinies, ·!33.S.Ct 2'15·1 {2013), in which is an extension of 

the United States Supreme Court's decision in Apprendi v. 

Naw Jersey, 120 S. Ct. 2348 (U.S. N.J. 2000)? 

2. "\J\/h�'i:her the PCRA Court erred in denying Appellant's postconviction petition as "untlmoly'' filed where Appellant 

4 
established that his [after-discovered evidence] claim [was] 

within the [plain language of the timeliness exception] set 

forth at 42 PA. C.S.A. (b} (•I) (ii} and Section 9545 (b)(2} in 

accordance with Commonwealth v. Lark, 560 Pa. 487, 7 46 

A.2d 585, (Pa. "1999}, where under Section 42 Pa. C.S.A 9545 

(b)(1}, a petitioner has (60) days to file a petition from the 

dute that the claim could have been presented? 

(Defendant's Concise Statement of Errors Complained of.on Appeal Pursuant to PA 

RAP. ·1925(b). 

·1. \J\/hether the United States Supreme Court's decision in 

Montgomery v. Louisiana, 136 S. Ct. 718 (2016), which 

Appellant contends is a new rule of Constitutional law 

that require the retroactive application of Alleyne v. 

United States, ·t 33 S.Ct. 2151 (2013), in which is an 

extension of the United States Supreme Court's decision 

in Apprendi v. New Jersey, 120 S. Ct. 2348 (U.S. N.J. 

1000)? · 

. Defendant relies on Montgomery v. Louisiana, 136 S. Ct. 718 (2016) for his 

application for retroactive relief in order to attain the timeliness requirement of his PCRA 

'Petition. Comm. v. l!Vashington, '142 A.3d 810 (Pa. 2016) applied Alleyne v. United 

Stales, 570 U.S._, ·133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) to Pennsylvania law. The 

Pennsylvania Supreme Court ruled in Comm. v. Washington, 142 A.3d 810 (Pa. 2016) 

on the controlling question presented as to whether the Supreme Court of the United 

States' decision in Alleyne v. United States, 570 U.S._, 133 S.Ct. 2151, 186 L.Ed.2d 

3·14 (20'13), applies retroactively to attacks upon mandatory minimum sentences 

advanced on collateral review. The Supreme Court of the United States issued its 

Alleyne decision, overruling its prior precedent. Alleyne held that any fact that, by law, 

increases the penaliy for a crime must be treated as an element of the offense, 

5 
submitted to a jury, rather than a judge, and found beyond a reasonable doubt. See 

Alleyne, 570 U.S. at_, 133 S.Ct. at 2163. "The effect was to invalidate a range of 

Pennsylvania sentencing statutes predicating mandatory minimum penalties upon nonelemental fact_s and requiring such facts to be determined by a preponderance of the 

evidence at sentencing. See, e.g., Commonwealth v. Hopkins, 117 A.3d 247, 262 

(20'15) (holding that Section 6317 of the Crimes Code, 18 Pa.C.S. § 6317-which 

• predicates a mandatory minimum sentence upon a fact to be determined by a 

preponderance at sentencing-was constitutionally infirm, under Alleyne ). Comm. v. 

lJVashington, ·142 A.3d 8'10, 811 (Pa. 2016). The Supreme Court of Pennsylvania held 

that Alleyne does not apply retroactively to cases pending on 'collateral review, and 

'further that Appellant's judgment of sentence, therefore, is not iileqal on account of 

Alleyne. Comm. v. lJVashington, 142 A.3d 810, 820 (Pa. 2016). Furthermore, the 

Superior Court of Pennsylvania, in Commonwealth v. Porter, No. 986 WDA 2015 (nonprecedentlalj.followed the lJVashington Court and noted: 

[b]ecause Appellant's PCRA petition was untimely and no 

exceptions apply, the PCRA court correctly determined that 

it lacked jurisdiction to address the claims presented and 

grant relief. See Commonwealth v. Fairiror, 809 A.2d 396, 

398 (Pa. Super. 2002) (holding that PCRA court lacks 

jurisdiction to hear untimely petition). Likewise, we lack the 

authority to address the merits of any substantive claims 

raised in the PCRA petition. See Commonwealth v. 

Bennett, 930 A.2d ·1264, 1267 (Pa. 2007) (

11[J]urjsdictional 

time limits go to a court's right or competency to adjudicate a 

controversy."). 

Additionally, the Superior Court in Commonwealth v. Ciccone, 152 A.3d 1004 

(Pa.Sup�r2016)heW: 

Appellant's sentence was not illegal when imposed, he was 

sentenced under the statute in justifiable reliance upon 

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existing United States Supreme Court precedent that it was 

constitutional, and the statute is not a nullity. Appellant's 

sentence can be considered illegal now only if Alleyne is held 

to apply. retroactively. Our Supreme Court has clearly ruled 

in IJ\/ashington that such is not the case. 

Accordingly, the trial court did not commit an error of law or 

an abuse of discretion in concluding that Alleyne did not 

render Appellant's sentence illegal. We thus affirm the denial 

of PCHA relief. 

Id. at ·10·10. 

Defendant contends that the United States Supreme court ruling in Montgomery 

ti. Louisiana, is a new rule of constitutional law that would require the retroactive 

application of Alleyne v. United Slates. The application of the law put forth by Defendant 

is flawed. The ruling in l!Vashington clearly states that Alleyne does not apply 

retroactively to cases pending on collateral review. Therefore, Defendant's contention 

t 

that the ruling in Montgomery is a retroactive application of the law in Alleyne holds no 

merit 

. ��- \l\fhether the PCRA Court erred in denying Appellant's 

post-conviction petltion as "untimely" filed where 

Appell;,:wri: established that his [after-discovered 

evidence] claim [was] within the [plain language of the 

'timeliness exception] set forth at 42 PA. C.S.A. (b) ('I) (ii) 

and Seiction 9545 (b)(2) in accordance with 

Commonwealth v. Lnrk, 560 Pa. 4871 746 A.2d 585, (Pa. 

·1999), where under Section 42 Pa. C.S.A 9545 (b)(2), a 

potitloner has (60) days to file a petition from the date 

that the claim could have been presented? 

Under 42 Pa.C.S.A. § 9545: 

(b) Time for filing petition.- 

('I) Any petition under this subchapter, including a second or 

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

judgment becomes final, unless the petition alleges and the petitioner 

proves that: 

7 
I I 

(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 SupremEfCourt 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. 

(2) Any petition invoking an exception provided in paragraph ( 1) 

sh,:ill be filed within 60 days of the date the claim could have been 

presented. 

Id. 

Defondant contends that his "untimely" filed PCRA falls within the timeliness 

exceptions as set forth in 42 Pa. C.S. A.§ 9545 (b)(1). Defendant further asserts that 

. 

since he meets the requirement of 42 Pa. Cons. Stat.§ 9545 (b)(1)(ii), he therefore 

meets the requirement of 42 Pa. C.S.A. § 9545 (b)(2). The matter of timeliness 

reqardinq the filing of the PCRA was addressed during the PCRA hearing held on 

February ·13, 20·17 in which Defendant argues that a photograph of him taken in 2006 is 

newly discovered evidence. Defendant stated: 

... I've known that I had a scar since 1991. But for what 

photograph of me, Your Honor, this is an unrelated case. 

had no idea what SCI Cresson would retain because SCI 

Cresson has since closed. · 

I wont to SCI retreat to get these pictures through the 

department. .. 1 wrote a request to the records department. 

The first request was September 2, 2016 . . 

(See PCRJ\ Transcript of February ·13, 2017, p. 20). 

8 
Defendant argues that the newly discovered photo is indisputable new evidence 

-discovered us of September 2, 20'16. (M.T., pp. 20-21 ). defendant further argues that 

"the due diligence at "trial was a reasonable effect, according to Commonwealth versus 

l!Volfe and Commonwealth versus Selinski. It requires a reasonable effort. Your honor, 

I fried everything I knew possible." (/cl. at p. 2'1). 

The Commonwealth responded at the hearing that although the discovery of the 

picture is untimely, ii is not important because Defendant's face was present at the trial 

and-the jury had the opportunity to see Defendant's scar. The Commonwealth indicated 

that the Defendant had the opportunity to show his scar to the jury, thus, the picture is 

not newly discovered evidence. (le/. at p, 28). Furthermore, as noted above, this is 

Defendant filed multiple PCRA petitions and failed to address this issue in subsequent 

� filings. 

The court addressed both the timeliness and the due diligence aspects of the law 

at the hearing in this matter as follows: 

\/\!here I'm somewhat struggling is that this issue of his face 

and the scar is not something that was newly discovered. 

This was the photo of him that was taken of him while he 

was conscious and awake going into a State Correctional 

Institution (SCI). This picture existed, always existed, and he 

was able to get it at this juncture, just as any other lawyer or 

person would be able to get it for the purposes of the trial. 

'Id. 3[ p. L!. ·1.-2 .. 

Based on the foregoing reasons, Defendant did not perform due diligence in 

discovering the photograph which existed since 2006. 

9 
·' l 

COI\ICLUSIOS�

After review of the record, trial testimony and transcripts, the Court finds no 

substantive merit to Defendant's PCRA claims. Accordingly, no meritorious issue for 

appeal exists with regard to Defendant's instant appeal. 

END OF OPINION 

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