J. S50004/14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

REGINALD WORTHY, : No. 775 WDA 2013

:

 Appellant :

Appeal from the Order, March 6, 2013,

in the Court of Common Pleas of Allegheny County

Criminal Division at No. CP-02-CR-0009966-1987

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND ALLEN, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 14, 2014

This is a pro se appeal of an order dated March 6, 2013, in the Court 

of Common Pleas of Allegheny County that dismissed appellant’s first 

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

§§ 9541-9546. Finding no error, we will affirm.

Appellant entered a general plea to criminal homicide on February 24, 

1988, for the murder of an unarmed security guard during the robbery of a 

convenience store. He was found guilty of first degree murder after a 

subsequent degree of guilt hearing, and was sentenced to life imprisonment 

on March 8, 1989. Post-trial motions were filed and denied on May 22, 

1989. No direct appeal was taken. 

On August 9, 2012, appellant filed the subject PCRA petition, and 

Charles R. Pass, III, Esq., was appointed to represent him. On November 5, 
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2012, Attorney Pass filed a motion to withdraw as counsel and a “no-merit 

letter” pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), 

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

Attorney Pass asserted the petition was untimely and not subject to any 

exceptions under the PCRA. By order dated February 12, 2013, and 

docketed on February 21, 2013, the PCRA court granted the motion to 

withdraw and gave notice of intention to dismiss the PCRA petition in 

accordance with Pa.R.Crim.P. 907, 42 Pa.C.S.A. The PCRA petition was 

dismissed on March 7, 2013. This appeal followed in which appellant raises 

several claims of PCRA counsel’s ineffectiveness.1

Counsel may withdraw at any stage of collateral proceedings if, in the 

exercise of his or her professional judgment, counsel determines that the 

issues raised in those proceedings are without merit, and if the court concurs 

with counsel’s assessment. Commonwealth v. Bishop, 645 A.2d 274, 275 

(Pa.Super. 1994). However, before PCRA counsel may withdraw, he must 

provide the PCRA petitioner with a copy of the petition to withdraw that 

includes a copy of both the no-merit letter and a statement advising the 

petitioner that, in the event the PCRA court grants the petition to withdraw, 

the petitioner has the right to proceed pro se, or with the assistance of 

privately retained counsel. Commonwealth v. Widgins, 29 A.3d 816, 818 

 

1 Appellant’s concise statement of errors complained of on appeal lists three 

issues. Appellant’s pro se brief raises five issues two of which were not 

preserved.
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(Pa.Super. 2011). Instantly, our review of the record indicates that both 

PCRA counsel and the PCRA court have fulfilled their legal obligations 

pursuant to Turner/Finley. 

Our standard of review for an order denying post-conviction relief is 

whether the record supports the PCRA court’s determination, and whether 

the PCRA court’s determination is free of legal error. Commonwealth v. 

Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings 

will not be disturbed unless there is no support for the findings in the 

certified record. Id. A PCRA petition must be filed within one year of the 

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

§ 9545(b)(1). This time requirement is mandatory and jurisdictional in 

nature, and the court may not ignore it in order to reach the merits of the 

petition. Commonwealth v. Taylor, 933 A.2d 1035, 1038 (Pa.Super. 

2007), appeal denied, 597 Pa. 715, 951 A.2d 1163 (2008).

Here, appellant had until January 16, 1997 to file a timely PCRA 

petition pursuant to a grace proviso provided for first PCRA petitions under 

the PCRA. See Commonwealth v. Alcorn, 703 A.2d 1054 (Pa.Super. 

1997), appeal denied, 724 A.2d 348 (Pa. 1998). The instant petition, filed 

August 9, 2012, is manifestly untimely and cannot be reviewed unless 

appellant invokes a valid exception to the time bar of the PCRA. See

42 Pa.C.S.A. § 9545(b)(1)(i-iii). Appellant specifically invoked the 

after-discovered facts exception asserting he was incompetent at the time of 
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trial and “only recently” regained his competence. Appellant relies on the 

case of Commonwealth v. Cruz, 852 A.2d 287 (Pa. 2003). In Cruz, 

appellant shot and killed three people and injured four others. Appellant 

then attempted suicide and shot himself in the head. Id. at 288. The 

Pennsylvania Supreme Court found that “mental incompetence at the 

relevant times, if proven, may satisfy the requirements of 

Section 9545(b)(1)(ii), in which case, the claims defaulted by operation of 

that incompetence may be entertained.” Id. (emphasis in original).

In Commonwealth v. Liebensperger, 904 A.2d 40 (Pa.Super. 

2006), this court further analyzed the Cruz decision. We reasoned:

Unlike the appellant in Cruz, whose defense 

counsel admitted he could not meaningfully 

participate in his own defense, Appellant was 

deemed able to cooperate with his attorney in his 

own defense by Dr. Rotenberg. Also unlike the 

appellant in Cruz, who was at no point deemed 

competent to stand trial, Appellant was determined 

to be competent by Dr. Rotenberg prior to the guilty 

plea and sentencing. The type of chronic mental 

illness suffered by Appellant is fundamentally 

different than the effects and circumstances 

surrounding the appellant’s indisputable physical 

injury to his brain in Cruz, where the self-inflicted 

gun shot wound resulted in impaired brain function 

such that, during the several years preceding his 

appeal, the appellant was unable to understand the 

facts of his case, and could only file a PCRA petition 

years later, after the injury to his brain had healed. 

Because the record in Cruz indicated that the injury 

suffered by the appellant could heal over time, he 

may have been able to establish that he filed his 

petition within the sixty day requirement for 

exceptions to the PCRA time bar. Cruz, supra, at 

329, 852 A.2d at 288; 42 Pa.C.S.A. § 9545(b)(2). 
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Accordingly, the Court in Cruz remanded the matter 

for a limited hearing where the appellant was 

afforded the opportunity to prove that he was and 

remained incompetent throughout the period during 

which his right to file a PCRA petition had lapsed, 

and the appellant’s current petition was filed within 

sixty days of his return to competence.

¶ Comparatively, Appellant in the instant case 

has offered nothing to indicate when, if ever, the 

crucial point in time at which he passed from 

incompetence to competence may have actually 

occurred, discussing only his chronic mental illness. 

Appellant has failed to offer any evidence or 

suggested reasons as to the cause of his lapse into 

incompetence after Dr. Rotenberg’s evaluation. 

Similarly, Appellant has not asserted in his petition 

even an estimate of the timing or duration of the 

periods of incompetence he allegedly suffered after 

his evaluation. Further, Appellant has made no 

assertions, and there is nothing in the record to 

indicate, that his condition is of the type that may 

have recently improved or changed so that he has 

only recently returned to the degree of competence 

required to file a PCRA petition. Since Appellant has 

not provided the aforementioned evidence or proofs, 

he is unable to establish that he filed his petition 

within the sixty-day requirement of the PCRA, or that 

he requires a hearing to determine if he has met this 

requirement. Therefore, Appellant has failed to meet 

his pleading requirements under the PCRA. 

42 Pa.C.S.A. § 9545(b).

Id. at 48.

Instantly, the record indicates appellant had a bullet lodged in his 

brain at the time of trial,2and while one doctor “more or less” opined that 

appellant might seek to be found guilty but mentally ill, at no time was 

 

2 Defense counsel indicated this injury was the result of an accident. (Id. at 

5.)
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appellant found incompetent to stand trial or to be sentenced. (Notes of 

testimony, 3/8/89 at 5-6.) The record shows appellant sent a letter to the 

trial court judge dated October 22, 1998, stating, “I have filed a Petition for 

Notes of Testimony and Sentencing Note, in order to effectuate a collateral 

appeal.” (Certified record, Document #A32.) On November 24, 1998, the 

trial court judge entered an order directing the requested records be 

provided to appellant. 

In his pro se PCRA petition, appellant stated:

. . . after 20 years of suffering numerous mental 

disorders, and medical treatment for the recorded 

mental disorders, as recorded by the Mental Health 

Department as S.C.I. Cresson, PA, Petitioner gained 

enough competency to address Attorney Thomassey; 

about his appeal, and on September 23, 2010, 

Attorney Thomassey finally responded . . .

Document #26 at 7. Appellant acknowledges an improvement in his 

condition at some point prior to September 23, 2010. Appellant proceeded 

to file a motion for transcripts on November 19, 2010. Yet, the record 

indicates appellant’s pro se PCRA petition was filed on August 9, 2012.3 

Clearly, appellant failed to file his PCRA petition within 60 days of returning 

to competence. See 42 Pa.C.S.A. § 9545(b)(2). 

The PCRA court addressed appellant’s competency as follows:

[T]he record contradicts any assertion that 

[appellant] suffered from a period of incompetency 

since his trial which rendered the facts upon which 

 

3 According to Attorney Pass, a pro se filing on March 4, 2011, does not 

appear in the Department of Court Records’ files. (No-merit brief at 4.)
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his substantive PCRA claims would be based 

unknowable to him. [Appellant] repeatedly asserted 

that he intended to file a PCRA petition, clearly 

cognizant of his right to do so, and yet failed to file a 

timely petition.

Finally, even assuming that [appellant] was 

suffering from some degree of incompetency in 1989 

and 1998, despite stating his intention to file PCRA 

petitions, his allegations in the instant petition and 

his letter to Attorney Thomassey sometime before 

June 23, 2010, as referred to above, establish a date 

prior thereto when he regained his competency. As 

required by Cruz, [appellant] was required to file a 

PCRA petition within 60 days of the time when he 

became competent. [Appellant] has acknowledged 

that he “gained enough competency to address 

Attorney Thomassey, about his appeal sometime 

before June 23, 2010 but fails to state any specific 

date. Even assuming that the date was June 22, 

2010, which is unlikely given that their 

communication was by mail, [appellant] would have 

had to have filed his PCRA Petition on or before 

August 22, 2010. The earliest date that any filing is 

recorded after June 22, 2010 is November 19, 2010, 

which is the Motion for Transcripts, which does not 

constitute a PCRA Petition, and would be untimely in 

any event. Further, assuming that [appellant] 

attempted to file a PCRA petition, which was not 

recorded, as referred to in his letter of March 1, 

2011 to the Department of Court Records, any such 

Petition would likewise have been untimely. 

[Appellant] states in his letter that it was filed 

“approximately four months ago” which would have 

placed the filing of this alleged PCRA petition on 

approximately November 1, 2010, prior to his third 

request for the trial transcripts, which was recorded 

in the docket on November 19, 2010.

Trial court opinion, 1/9/14 at 9-10.
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Based on the foregoing, appellant’s PCRA petition was untimely, and 

the PCRA court was without jurisdiction to consider appellant’s substantive 

claims. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/14/2014