J-S43031-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

DAVID WINWOOD 

Appellant No. 1871 WDA 2016

Appeal from the PCRA Order November 9, 2016

In the Court of Common Pleas of Allegheny County 

Criminal Division at No(s): CP-02-CR-0010718-1985

BEFORE: STABILE, SOLANO, and FITZGERALD*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED: July 19, 2017

Appellant, David Winwood, appeals pro se from an order denying his 

second petition for relief under the Post Conviction Relief Act (“PCRA”), 42 

Pa.C.S. §§ 9541-9546, as untimely. We affirm.

In 1985, Appellant was charged at CP-02-CR-12033-1985 (“Case 1”) 

and CP-02-CR-10718-1985 (“Case 2”)1 with various sexual offenses against 

his wife and step-children. In July 1986, a jury convicted Appellant of rape,2

statutory rape,3involuntary deviate sexual intercourse,4indecent assault,

5

 

*

Former Justice specially assigned to the Superior Court.

1 Case 2 is the only case under review in this appeal. We only discuss Case 

1 to provide helpful factual and procedural context.

2 18 Pa.C.S. § 3121.

3 18 Pa.C.S. § 3122 (repealed).

4 18 Pa.C.S. § 3123.
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spousal sexual assault6and simple assault7in Case 2. In November 1986, 

another jury convicted Appellant of sexual offenses in Case 1. On April 21, 

1987, the court sentenced Appellant in both cases to an aggregate term of 

thirty-two to sixty-four years’ imprisonment. 

Appellant filed a timely direct appeal in Case 2. This Court affirmed 

the judgment of sentence, and our Supreme Court denied allowance of 

appeal on April 17, 1989, thus making his judgment of sentence final for 

purposes of the PCRA. See 42 Pa.C.S. § 9545(b)(3).

In 1995, Appellant filed his first PCRA petition in Case 2. The PCRA 

court denied relief, this Court affirmed, and our Supreme Court denied 

allowance of appeal.

On August 26, 2015, Appellant filed his second PCRA petition in Case 

2. The PCRA court appointed counsel, who subsequently filed a motion for 

leave to withdraw and a “no-merit” letter under Turner/Finley.

8

 On 

November 6, 2015, the PCRA court issued a notice of intent to dismiss 

Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907. On 

November 23, 2015, Appellant filed a pro se response to the Rule 907 notice 

 

5 18 Pa.C.S. § 3126.

6 18 Pa.C.S. § 3128 (repealed).

7 18 Pa.C.S. § 2701.

8 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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claiming that he had recently discovered an exculpatory medical record 

relating to one of his victims. On March 2, 2016, the PCRA court appointed 

new counsel to investigate Appellant’s claim of after-acquired evidence. 

New counsel determined that Appellant’s claim was meritless and filed a 

motion for leave to withdraw and a “no-merit” letter under Turner/Finley. 

On May 4, 2016, the PCRA court issued a second Rule 907 notice of intent to 

dismiss Appellant’s petition. On May 17, 2016, Appellant filed a pro se 

response in opposition to the second Rule 907 notice. On November 9, 

2016, the court dismissed Appellant’s petition and granted new counsel 

leave to withdraw. Appellant timely appealed to this Court, and both 

Appellant and the PCRA court complied with Pa.R.A.P. 1925.9

Appellant raises four issues in this appeal, which we restate for the 

sake of brevity:

1. Are Appellant’s convictions under 18 Pa.C.S. §§ 3122 

and 3128 void or illegal for the reason that the legislature 

repealed these statutes six years after his judgment of 

sentence became final?

2. Did the medical record of one of Appellant’s victims 

constitute after-acquired evidence which entitles Appellant 

to a new trial?

 

9 The following occurred in Case 1: in 1989, Appellant’s judgment of 

sentence was affirmed on direct appeal. In 1995, Appellant moved for PCRA 

relief without success. On November 23, 2015, Appellant filed his second 

PCRA petition. On May 12, 2016, the PCRA court dismissed this petition. On 

April 20, 2017, this Court affirmed in an unpublished memorandum at 957 

WDA 2016.
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3. Did the PCRA court disregard exculpatory evidence in 

the medical records of one of the victims?

4. Did Appellant timely file a PCRA petition alleging afteracquired evidence that exonerated him of the offenses?

Appellant’s Brief at 4-5.

“Our standard of review of a PCRA court’s dismissal of a PCRA petition 

is limited to examining whether the PCRA court’s determination is supported 

by the evidence of record and free of legal error.” Commonwealth v. 

Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted). 

As our Supreme Court has explained:

the PCRA timeliness requirements are jurisdictional in 

nature and, accordingly, a PCRA court is precluded from 

considering untimely PCRA petitions. We have also held 

that even where the PCRA court does not address the 

applicability of the PCRA timing mandate, th[e] Court will 

consider the issue sua sponte, as it is a threshold question 

implicating our subject matter jurisdiction and ability to 

grant the requested relief. 

Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 2003) (citations 

omitted). 

A PCRA petition “must normally be filed within one year of the date the 

judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-

(iii) applies and the petition is filed within 60 days of the date the claim

could have been presented.” Commonwealth v. Copenhefer, 941 A.2d

646, 648 (Pa. 2007) (some citations and footnote omitted). The three 

exceptions to the general one-year time limitation are:
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(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. § 9545(b)(1)(i)-(iii). 

Here, Appellant’s current petition, filed on August 26, 2015, is facially 

untimely under the one-year statute of limitations, because over twenty-five 

years have elapsed since his judgment of sentence became final. Therefore, 

we must determine whether any of his arguments satisfy the timeliness 

exceptions within section 9545(b)(1)(i)-(iii). 

In his first argument, Appellant contends that his sentences under 18 

Pa.C.S. §§ 3122 and 3128 are illegal because the legislature repealed these 

statutes in 1995. He argues that this argument fits within the after-acquired 

evidence exception within 42 Pa.C.S. § 9545(b)(1)(ii) because he first 

learned about the repeals while performing legal research in July 2015. 

Appellant might have had an interesting point had these statutes been found 

unconstitutional, see Ex Parte Siebold, 100 U.S. 371, 376-77 (1879) 

(conviction under unconstitutional statute is not merely erroneous but is void 
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and cannot be legal cause of imprisonment), or had they been repealed prior 

to his sentencing in 1987. See Scranton City v. Rose, 60 Pa. Super. 458, 

462 (1915) (“[t]here is no vested right . . . existing after the repeal of a 

criminal statute, to prosecute an offense in existence prior to the repeal of 

such statute . . . all proceedings which have not been determined by final 

judgment, are wiped out by a repeal of the act under which the offense took 

place”). In this case, however, sections 3122 and 3128 were neither found 

unconstitutional nor repealed prior to sentencing. At the time of sentencing, 

they were perfectly legal. Thus, Appellant’s sentence was valid, and the 

subsequent repeal of these statutes did not invalidate his sentence. 

Even if the repeal of these statutes rendered his sentence illegal, 

Appellant’s argument does not satisfy the after-acquired evidence exception 

within 42 Pa.C.S. § 9545(b)(1)(ii). While there is no law directly on point, 

we do not believe that the repeal of a statute constitutes an after-acquired 

“fact” under section 9545(b)(1)(ii). Cf. Commonwealth v. Watts, 23 A.3d 

980, 986 (Pa. 2011) (judicial opinion does not qualify as a previously 

unknown “fact” capable of triggering the timeliness exception in section 

9545(b)(1)(ii), because this provision “applies only if the petitioner has 

uncovered facts that could not have been ascertained through due diligence, 

and judicial determinations are not facts”). Even if the repeal was an afteracquired “fact,” Appellant fails the due diligence element of section 
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9545(b)(1)(ii) by failing to seek PCRA relief until twenty years after the 

repeal. Thus, Appellant’s first argument warrants no relief.

In his final three arguments, Appellant contends that medical records 

of one of his victims was “exculpatory,” that trial counsel was ineffective for 

failing to present them to the jury, and that his discovery of the records 

established an exception to the PCRA’s time-bar. The PCRA court rejected 

this argument for the following reasons:

First, [Appellant]’s trial was held in 1987, and [Appellant] 

raised this claim for the first time in his November 23, 

2015 [r]esponse to the court’s proposed dismissal order. 

[Appellant] has never pled the actual date that he 

“discovered” the existence of the purportedly “exculpatory” 

medical record. In his November 23, 2015 [r]esponse, 

[Appellant] merely stated that “the after-discovered 

evidence was the result of seeking files and having a 

competent f[e]llow inmate review the case and assist 

Petitioner in presenting the finding and information within 

(60) days of discovery that could not have been discovered 

otherwise by Petitioner prior to trial . . . .” (November 23, 

2015 response, p. 6). Thus, [Appellant]’s clear failure to 

allege the exact date when he discovered the medical 

record evidence precludes him from meeting the after 

discovered evidence exception to the time-bar. See 

Commonwealth v. Yarris, 731 A.2d 581, 589-91 (Pa. 

1999) (after-discovered evidence exception not satisfied 

where appellant failed to demonstrate when alleged afterdiscovered evidence was actually discovered).

In addition to [Appellant]’s failure to allege an exact date 

of discovery, [Appellant] himself has confirmed that the 

claim was not raised within 60 days of the date when the 

claim could have been presented. Indeed, “Exhibit 5,” 

which was attached to [Appellant’s] November 23, 2015 

response, confirms that [Appellant] has been in possession 

of the medical record at the heart of his PCRA Petition for a 

number of years. Exhibit 5 is a letter that [Appellant] sent 

to Attorney Coffey making him aware of the medical 
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record. In that letter, which was dated September 28, 

2015, [Appellant] stated that he discovered the medical 

record “years ago” within his records that were held by his 

previous attorney. (“Please find as enclosures, copies of 

critical medical records that were find [sic] within my 

records of previous attorney years ago”). Moreover, in his 

May 17, 2016 [r]esponse, [Appellant] again states that he 

discovered the “newly found evidence” “through the 

assistance of another inmate” and that such evidence was 

found in “appellate counsel’s files” which were in [his] 

possession. Therefore, [Appellant] has confirmed that he 

discovered the evidence “years ago,” which undoubtedly 

prevents him from proving that his claim was raised within 

60 day time period set forth in § 9545(b)(2).

Second, even assuming, for the sake of argument, that 

[Appellant] was able to prove that he raised the claim 

within the required 60 day period, [Appellant] failed to 

prove by a preponderance of evidence that the medical 

record could not have been discovered [twenty-eight] 

years ago through the exercise of due diligence, as is 

required by § 9545(b)(1)(ii). To that end, [Appellant]’s 

November 23, 2015 [r]esponse seems to confirm that trial 

counsel, was in possession of the medical record at the 

time of trial, which completely eviscerates any notion that 

the medical record could not have been discovered with 

the exercise of due diligence.

PCRA Ct. Op., 3/22/2017, at 10-11. We agree with the PCRA court’s 

thorough analysis and its conclusion that no relief was due.

Order affirmed. 

Judge Stabile joins the memorandum. 

Judge Solano concurs in the result.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/19/2017