J-S23014-18

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TRACY WHITAKER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3129 EDA 2017

Appeal from the PCRA Order August 31, 2017

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

No(s): CP-23-CR-0001147-1994

BEFORE: SHOGAN, J., NICHOLS, J., and STEVENS*, P.J.E.

MEMORANDUM BY SHOGAN, J.: FILED JUNE 08, 2018

Appellant, Tracy Whitaker, appeals pro se from the order denying his 

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

§§ 9541-9546. We affirm.

A previous panel of this Court summarized the procedural history of this 

case as follows:

[Appellant] was found guilty by a jury of first-degree 

murder, and related charges [on December 8, 1994], regarding 

the beating death of nine-month-old Robert Pringle, his girlfriend’s 

son.[1] [Appellant], who was not subject to the death penalty, was 

subsequently sentenced to a mandatory sentence of life 

imprisonment. He filed a direct appeal, and this Court affirmed 

the judgment of sentence on August 15, 1995. Commonwealth 

v. Whitaker, 668 A.2d 1199 (Pa. Super. 1995) (unpublished 

memorandum). The Pennsylvania Supreme Court denied 

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1

 As the facts of the crime are not germane to the issues raised, we do not 

repeat them here.
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allowance of appeal on January 26, 1996. Commonwealth v. 

Whitaker, 672 A.2d 307 (Pa. 1996). [Appellant’s] sentence 

became final 90 days later, April 25, 1996, when time expired to 

seek review by the United States Supreme Court. See

U.S.Sup.Ct.R. 13. . . . [T]he instant petition is [Appellant’s] eighth 

PCRA petition.[2] The prior . . . petitions[3] were all denied as being 

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2

 In actuality, the prior petition was Appellant’s ninth PCRA petition. See n.3, 

infra.

3

 Appellant’s first PCRA petition was filed on October 22, 1997, this Court 

affirmed on May 21, 1998, and our Supreme Court denied review on March 5, 

1999. Commonwealth v. Whitaker, 575 PHL 98 (Pa. Super. 1998), appeal 

denied, 334 MD Misc. Dkt. 98. Appellant’s second PCRA petition was filed on 

March 26, 2001, and denied on November 1, 2001. Appellant did not appeal 

the denial. The third PCRA petition was filed on April 25, 2003, denied on 

June 25, 2003, and affirmed by this Court on January 22, 2004. 

Commonwealth v. Whitaker, 847 A.2d 762, 2317 EDA 2003 (Pa. Super. 

2004) (unpublished memorandum). Appellant filed a fourth PCRA petition on 

June 22, 2007, which the PCRA court dismissed on October 11, 2007. 

Appellant filed a notice of appeal. Commonwealth v. Whitaker, 1676 EDA 

2008 (Pa. Super. 2008). While the appeal was pending, Appellant filed a fifth 

petition on February 21, 2008. The PCRA court dismissed the fifth petition 

pursuant to Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000). 

Commonwealth v. Whitaker, 682 EDA 2008 (Pa. Super. 2008). Appellant 

then sought discontinuance of both his fourth and fifth PCRA petitions, which 

this Court granted on September 10, 2008, and July 23, 2008, respectively. 

Appellant filed a petition for writ of habeas corpus, which the common pleas 

court treated as Appellant’s sixth PCRA petition. The PCRA court denied the 

petition, and this Court affirmed on August 26, 2009. Commonwealth v. 

Whitaker, 984 A.2d 1025, 646 EDA 2009 (Pa. Super. 2009) (unpublished 

memorandum). Appellant filed a seventh petition captioned as a petition for 

writ of habeas corpus on April 2, 2011, which was denied by operation of law. 

We quashed Appellant’s appeal sua sponte on December 22, 2011, “as having 

been taken from a purported order which is not entered upon the appropriate 

docket in the lower court. See Pa.R.A.P. 301(a)(1).” Commonwealth v. 

Whitaker, 2504 EDA 2011 (Pa. Super. 2011). Appellant filed his eighth PCRA 

petition on May 4, 2013. The PCRA court dismissed the petition on September 

20, 2013, and Appellant did not appeal. Appellant filed a ninth PCRA petition 

on October 16, 2014. The PCRA court dismissed the petition on January 12, 

2016. Appellant filed an appeal, this Court affirmed on November 10, 2016, 

and our Supreme Court denied further review on May 9, 2017. 
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untimely, except for petition number five which was filed while the 

appeal from petition number four was still pending.2

2 [Appellant] filed at least five petitions for habeas 

corpus with the federal courts, all of which afforded 

[Appellant] no relief.

[4]

Whitaker, 159 A.3d 582, 369 EDA 2016 (unpublished memorandum at *1).

On June 26, 2017, Appellant filed the instant pro se Petition for 

Collateral Relief.5 The Commonwealth responded on July 27, 2017. On 

August 7, 2017, the PCRA court issued a notice of intent to dismiss the petition 

without a hearing. Appellant responded on August 18, 2017, and the PCRA 

court dismissed the petition on August 30, 2017. Appellant filed this timely 

appeal. The PCRA court did not direct Appellant to file a Pa.R.A.P. 1925(b)

statement; it filed an opinion on November 17, 2017.6

Appellant raises the following issues on appeal:

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Commonwealth v. Whitaker, 159 A.3d 582, 369 EDA 2016 (Pa. Super. 

2016) (unpublished memorandum), appeal denied, 169 A.3d 516, 885 MAL 

2016 (Pa. 2017).

4

 Appellant sought federal habeas corpus relief twelve times, all to no avail.

5

 While the petition is docketed as filed on June 26, 2017, the document in 

the record certified to us on appeal was Appellant’s Memorandum of Law in 

Support of Petitioner’s Motion for Post Conviction Relief (“Appellant’s 

Memorandum of Law”), which also was docketed on June 26, 2017. Through 

the efforts of our Prothonotary, we obtained the PCRA petition as a 

supplemental certified record.

6 The PCRA court, in its opinion, determined Appellant’s PCRA petition was 

untimely, but it wholly failed to address Appellant’s purported applicability of 

one of the exceptions to the timeliness requirement.
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I. Whether the PCRA Court err’d [sic] in dismissing Appellant’s 

PCRA Motion under the auspice it lacked jurisdiction to rule 

on a timely filed PCRA Petition under the newly discovered 

fact doctrine pursuant to 42 Pa.C.S. § 9545(b)(1)(i),(ii),(2), 

and whether PCRA Court err’d [sic] in not conducting a 

hearing to determine if Appellant’s argument suffered a 

complete 14th Amendment violation employed under 

Brady/Bagley Doctrine?

II. Whether Appellant suffered a 14th Amendment violation 

when the State withheld exculpatory and impeaching 

material evidence under Brady/Bagley Doctrine, violates 

Appellant’s right to due process of law where the 

Commonwealth seeks to withhold impeaching material 

evidence in violation of the 14th Amendment’s Federal 

Constitution?

Appellant’s Brief at 4.

When reviewing the propriety of an order denying PCRA relief, we 

consider the record “in the light most favorable to the prevailing party at the 

PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super. 

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) 

(en banc)). This Court is limited to determining whether the evidence of 

record supports the conclusions of the PCRA court and whether the ruling is 

free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 

2016). The PCRA court’s findings will not be disturbed unless there is no 

support for them in the certified record. Commonwealth v. Lippert, 85 A.3d 

1095, 1100 (Pa. Super. 2014).

Moreover, “[t]here is no absolute right to an evidentiary hearing on a 

PCRA petition, and if the PCRA court can determine from the record that no 

genuine issues of material fact exist, then a hearing is not necessary.” 
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Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (quoting 

Commonwealth v. Barbosa, 819 A.2d 81 (Pa. Super. 2003)). “[S]uch a 

decision is within the discretion of the PCRA court and will not be overturned 

absent an abuse of discretion.” Commonwealth v. Mason, 130 A.3d 601, 

617 (Pa. 2015).

Initially, we must determine whether the PCRA court had jurisdiction to 

review the merits of Appellant’s issue based on the timing of Appellant’s 

petition. The timeliness of a PCRA petition is a jurisdictional threshold that 

may not be disregarded in order to reach the merits of the claims raised in a 

PCRA petition that is untimely. Commonwealth v. Lawson, 90 A.3d 1, 4 

(Pa. Super. 2014) (citing Commonwealth v. Murray, 753 A.2d 201, 203 

(Pa. 2000)). Appellant’s judgment of sentence became final on April 25, 

1996,7 when the time expired to seek relief in the United States Supreme 

Court. See 42 Pa.C.S. § 9545(b)(3) (for purposes of calculating the timeliness 

of a petition, a “judgment becomes final at the conclusion of direct review, 

including discretionary review in the Supreme Court of the United States and 

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7

 Appellant’s judgment of sentence became final more than three months 

after the effective date of the 1995 amendments to the PCRA. Therefore, the 

proviso for cases where the judgment of sentence became final before the 

effective date of the 1995 amendments to the PCRA, i.e., that a first petition 

shall be deemed timely if it was filed within one year of the effective date of 

the 1995 amendments, is not applicable. Commonwealth v. Voss, 838 A.2d 

795, 799 (Pa. Super. 2003) (“Because the effective date of the amendments

is January 16, 1996, the operative deadline for first-time PCRA petitions is 

January 16, 1997.”).
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the Supreme Court of Pennsylvania, or at the expiration of time for seeking 

the review”); U.S.Sup.Ct.R. 13 (petition for a writ of certiorari seeking review 

of a judgment of a lower state court that is subject to discretionary review by 

the state court of last resort is timely when it is filed with the Clerk within 90 

days after entry of the order denying discretionary review). Therefore, 

Appellant had until April 25, 1997, to file a timely PCRA petition. See 42

Pa.C.S. § 9545(b)(1) (A PCRA petition, “including a second or subsequent 

petition, shall be filed within one year of the date the judgment becomes 

final. . . .”). Appellant filed the instant PCRA petition on June 26, 2017, over 

twenty years after his judgment of sentence became final. Hence, the petition 

is facially untimely.

The jurisdictional time bar can be overcome only by satisfaction of one 

of the three statutory exceptions codified at 42 Pa.C.S. § 9545(b)(1)(i)–(iii).8

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8

 The 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 
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Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017). Further, “[a]ny 

petition invoking an exception . . . shall be filed within 60 days of the date the 

claim could have been presented.” 42 Pa.C.S. § 9545(b)(2). The PCRA 

petitioner bears the burden of proving the applicability of one of the 

exceptions. Commonwealth v. Edmiston, 65 A.3d 339, 346 (Pa. 2013).

Appellant alleges his PCRA claim is predicated on previously unknown 

facts, and he asserts the applicability of 42 Pa.C.S. § 9545(b)(1)(ii). This 

Court recently reiterated that whether a PCRA petitioner has satisfied the 

Section 9545(b)(1)(ii) time-bar exception “is analytically distinct from the 

merits of any substantive claim seeking relief.” Commonwealth v. 

Robinson, ___ A.3d ___, 2018 PA Super 109, *3 (Pa. Super. filed May 2, 

2018) (en banc).

The text of the relevant subsection provides that “the facts upon

which the claim is predicated were unknown to petitioner and

could not have been ascertained by due diligence.” 42 Pa.C.S. 

§9545(b)(1)(ii). . . . The plain language of subsection (b)(1)(ii)

does not require the petitioner to allege and prove a claim of 

“after-discovered evidence.” Rather, it simply requires petitioner 

to allege and prove that there were “facts” that were “unknown”

to him and that he exercised “due diligence.”

Id. (quoting Commonwealth v. Bennett, 930 A.2d 1264, 1270 (Pa. 2007)).

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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. § 9545(b)(1)(i), (ii), and (iii).
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In July of 2016, Appellant sought information from Delaware County 

Children and Youth Services (“CYS”) under Pennsylvania’s Right-to-Know Law9

(“RTKL”) regarding possible investigations of his girlfriend, the mother of his 

victim, by CYS and Philadelphia County Children Welfare Unit (“CWU”). 

Memorandum of Law, 6/26/16, at Exhibit B. By letter dated August 19, 2016, 

Delaware County Open Records Officer Anne Coogan responded with an 

“Attestation of Nonexistence of Records,” noting that Appellant also had 

previously submitted this same request to CYS, and the Open Records Office 

had received it on July 15, 2015. Id. (emphasis added). The fifteen reasons 

cited in the Attestation of Nonexistence of Records included references to 65 

P.S. 67.708(b)(17)(i–vi), 65 P.S. 67.708(b)(28)(i–ii) and 65 P.S. 

67.708(b)(30).

In addition, Appellant requested review of the Department of Human 

Services case record related to his girlfriend, as acknowledged by Jonathan 

Houlon, Chief Deputy City Solicitor of the City of Philadelphia, CWU, by letter 

dated August 4, 2016. Id. Appellant asserts the information was “denied and 

affirmed by the Office of Open Records, Kelley C. Issenberg, Esq. on 

September 22, 2016,” but the denial is not in the certified record. Appellant’s 

Brief at 5.

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9

 Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101–67.3104.
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Appellant contends that such denials, for “numerous statutory reasons

under the RTKL,” suggest that: (1) such records must exist; (2) they must be 

favorable to Appellant in terms of providing either a basis for impeaching the 

victim’s mother or exculpating Appellant; and (3) the Commonwealth was in 

violation of the requirements of Brady v. Maryland, 373 U.S. 83 (1963), by 

not providing Appellant with the contents of the CYS and CWU files. 

Appellant’s Brief at 7–9.

Contrary to Appellant’s suggestion, nothing in Ms. Coogan’s response 

suggested, let alone established, that: (1) there were records of an 

investigation into the victim’s mother regarding alleged child abuse; (2) that 

the records which Appellant sought were ever in the possession of the 

prosecution; (3) that there are any records that were either a source of 

impeachment of the victim’s mother or exculpatory of Appellant; or (4) 

Appellant was entitled to obtain information, if any existed, that was contained 

in the CYS and/or CWU records.

We reject Appellant’s assertion of the applicability of 42 Pa.C.S. 

§ 9545(b)(1)(ii) because his assertions are based on nothing but unsupported 

speculation. This does not provide a basis for overcoming the untimeliness of 

his PCRA petition. Moreover, it also is apparent from the two-decade delay 

that Appellant failed to seek out the information in a duly diligent manner. 

See Robinson, ___ A.3d at ___, 2018 PA Super 109, at *8. Surely, the 

alleged files Appellant sought to review, if they existed at all, existed in 1995, 
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in the year following the murder of nine-month-old Robert Pringle. Thus, the 

absence of due diligence additionally “serves to affirm the instant order.” Id.

at n.5. Because Appellant’s PCRA petition was untimely and no exceptions 

apply, the PCRA court lacked jurisdiction to address the claims presented and 

grant relief. Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 

2002) (PCRA court lacks jurisdiction to hear untimely petition).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/8/18