Com. v. McWhorter, G. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
GARY G. MCWHORTER
Appellant No. 1895 EDA 2016
Appeal from the PCRA Order June 10, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0715901-1982
BEFORE: PANELLA, J., MOULTON, J., and RANSOM, J.
MEMORANDUM BY PANELLA, J. FILED OCTOBER 11, 2017
In 1983, a jury convicted Appellant, Gary McWhorter, of first-degree
murder and possession of an instrument of crime, arising from allegations
that he had shot and killed John Baker. The Commonwealth’s primary
witness at trial was Regina Smith, who testified that she was sitting next to
Baker at a bar when McWhorter walked up behind Baker and shot him.
Defense counsel impeached Smith with prior statements where she had
claimed she was unsure of the shooter’s identity. Smith also recanted her
testimony after the trial.
In this appeal from the denial of his Post Conviction Relief Act
(“PCRA”) petition, McWhorter asserts that on July 3, 2014, Eric Jackson
admitted when he met Smith in the immediate aftermath of the shooting,
Smith did not know who had shot Baker. Jackson further admitted that he
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instructed Smith to implicate McWhorter as the shooter. McWhorter contends
that Jackson’s statement is after-discovered evidence that entitles him to a
new trial. We conclude that McWhorter failed to establish the jurisdictional
requirements of the PCRA, and therefore affirm.
McWhorter filed the instant PCRA petition, his first, on August 13,
2014, seeking a new trial. The PCRA court appointed counsel, who filed an
amended petition. After giving appropriate notice of its intent, the PCRA
court dismissed McWhorter’s petition without a hearing. This timely appeal
followed.
The PCRA court does not address the timeliness of McWhorter’s
petition. If McWhorter’s PCRA petition is untimely, we have no jurisdiction to
entertain it. See Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa.
Super. 2013). To be facially timely, a PCRA petition must be filed within one
year of the date the underlying judgment becomes final. See 42 Pa.C.S.A. §
9545(b)(1). A judgment is deemed final at the conclusion of direct review or
at the expiration of time for seeking review. See 42 Pa.C.S.A. § 9545(b)(3).
McWhorter’s petition is clearly facially untimely, as nearly 28 years passed
between the time when his judgment of sentence became final, by virtue of
the Supreme Court of Pennsylvania denying his petition for allowance of
appeal, and the filing of the instant petition.
However, he can still satisfy the jurisdictional requirements of the
PCRA by establishing the applicability of one of three enumerated exceptions
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set forth in the PCRA. See Commonwealth v. Hernandez, 79 A.3d at 651.
A PCRA petition invoking one of these statutory exceptions must “be filed
within sixty days of the date the claim could first have been presented.”
Id., at 652 (citing 42 Pa.C.S.A. § 9545(b)(2)).
McWhorter asserts that he has satisfied the after-discovered evidence
exception. To qualify for this exception, McWhorter must establish that he
discovered exculpatory facts of which he was previously unaware. See 42
Pa.C.S.A. § 9545(b)(1)(ii). When considering a PCRA petitioner’s claim that
he has established an exception to the PCRA’s time bar under §
9545(b)(1)(ii), the petitioner must establish that the facts upon which the
claim are predicated were unknown to him, and that he could not have
ascertained the facts earlier despite the exercise of due diligence. See
Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007).
In Commonwealth v. Abu-Jamal, the Supreme Court of
Pennsylvania examined a claim similar to the one presented here. See 941
A.2d 1263, 1268-1269 (Pa. 2008). There, the petitioner asserted that he
had discovered new evidence that a key Commonwealth eyewitness, Cynthia
White, had perjured herself at his trial. See id., at 1265. The Court held that
Abu-Jamal had failed to establish the applicability of § 9545(b)(1)(ii):
As the PCRA court noted, White’s “credibility and potential
reasons for testifying falsely were examined exhaustively at
trial[,]” and “[n]o one ever mistakenly believed that [she] was a
model citizen.” The fact appellant discovered yet another conduit
for the same claim of perjury does not transform his latest
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source into evidence falling within the ambit of §
95454(b)(1)(ii).
Id., at 1269.
Here, Smith’s credibility and potential perjury were exhaustively
explored not only at trial, see N.T., Jury Trial, 2/9/83, at 3.17-3.93, but also
in a post-trial hearing, see N.T., Post-Trial Motion Hearing, 5/9/84. This
newly discovered statement from Jackson is merely another conduit for the
same claim of perjury. Jackson’s statement does not fall within the ambit of
the after-discovered fact exception to the PCRA’s timeliness requirement.
Thus, McWhorter’s petition is untimely, and the PCRA court had no
jurisdiction to provide McWhorter relief. We therefore affirm the dismissal of
McWhorter’s petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/11/2017
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