Case Information
*1 J-S54040-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA :
v. :
:
:
ANTHONY TUSWEET SMITH :
:
Appellant : No. 382 WDA 2017 Appeal from the PCRA Order February 10, 2017 In the Court of Common Pleas of Beaver County Criminal Division at No(s): CP-04-CR-0000147-2005, CP-04-CR-0000967-2001, CP-04-CR-0001148-2005, CP-04-CR-0001151-2005 BEFORE: OTT, MOULTON, and FITZGERALD, [*] JJ.
MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 14, 2017
Appellant, Anthony Tusweet Smith, appeals pro se from the order entered in the Beaver County Court of Common Pleas dismissing his fifth Post Conviction Relief Act [1] (“PCRA”) petition as untimely. Appellant claims that governmental interference precluded him from obtaining exculpatory evidence. We affirm.
____________________________________________
[*] Former Justice specially assigned to the Superior Court.
[1] 42 Pa.C.S. §§ 9541-9546.
J-S54040-17
We adopt the facts and procedural history set forth by the PCRA court’s opinions. [2] See PCRA Ct. Op., 12/13/16, at 1-2; [3] PCRA Ct. Op., 2/10/17, at 1. Appellant raises the following issues for review:
I. Whether Title 42 Pa.C.S.A. § 9545(b)(1)(i)(ii)(2) provides remedy for PSP denial of subpoena for exculpatory PSP-PRI’s [4] & PSP-GIR’s [5] in violation of the demand rights of Pennsylvania Constitution Article I § 9, informed rights of united states constitution amendment VI and due process rights of United States Constitution Amendment XIV?
II. Whether the time constraint of title 42 Pa.C.S.A. § 9545 (b)(2) ignores the time attributed to the continuing non- disclosure of exculpatory PSP-PRI’s & PSP-GIR’s denying [Appellant] opportunity of subpoena in violation of Pennsylvania and U.S. constitutions?
III. Whether an evidentiary hearing is required to substantiate partial PSP-PRI’s were provided to trial counsel that propelled the presentation of evidence from PSP case(s) other than [Appellant’s]?
IV. Whether judgment of sentence violates Pennsylvania and United States constitutions where prosecutors arrest ____________________________________________
[2] We note the PCRA court’s Pa.R.Crim.P. 907(1) opinion states, in the first paragraph, that the instant PCRA petition is Appellant’s fourth. However, as recognized by the PCRA court, on page two of its opinion, the instant PCRA petition represents Appellant’s fifth petition.
[3] The PCRA court filed a Pa.R.A.P. 1925(a) opinion on April 4, 2017 wherein the court specifically incorporated the reasoning set forth in its December 13, 2016 Rule 907 opinion and order and its February 10, 2017 final opinion and order.
[4] “PSP-PRI” refers to Pennsylvania State Police-Property Record of Incident. [5] “PSP-GIR” refers to Pennsylvania State Police-General Investigation Report.
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J-S54040-17
and imprison [Appellant] through the use of a false report, testimony & evidence that has undermined the truth determining factors of the trial court and all previous counsel?
Appellant’s Brief at 4.
After careful consideration of Appellant’s brief, the record, and the decisions of the PCRA court, we affirm on the basis of the PCRA court’s
opinions. See PCRA Ct. Op., 12/13/16 at 3-6; PCRA Ct. Op., 2/10/17, at 1- 3 (holding that the PCRA court lacked jurisdiction to review the merits of Appellant’s petition where Appellant’s fifth PCRA petition is facially untimely and he failed to plead and prove any of the statutory exceptions to the PCRA’s time bar). Accordingly, we affirm the PCRA court’s dismissal of Appellant’s petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/14/2017
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J-S54040-17
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AP pAt,50Ece&Nt OMMIN IN THE COURT OF COMMON PLEAS OF BEAVER COUNTY PENNSYLVANIA CRIMINAL DIVISION-LAW COMMONWEALTH OF
PENNSYLVANIA
vs, NOS. 967-2001; 1148, 1151-2005 ANTHONY TUSWEET SMITH
H. KNAFELC, J. December 13, 2016
OPINION & ORDER Petitioner, Anthony Tusweet Smith, filed fourth Post -Conviction Relief Act petition, which he alleges that the conduct of Pennsylvania Attorney General improperly influenced her Office's failure to disclose records to Petitioner. The untimeliness petition precludes this Court's evaluation the merits, and this opinion and order shall serve as notice of this Court's intent dismiss pursuant to Pennsylvania Rule Criminal Procedure 907(1). Procedural, History
I. The relevant procedural history Petitioner's case as follows. On March 5, 2002, folloWing a jury trial, the Defendant was convicted aggravated assault and criminal attempt commit homicide. On April 2002, the Defendant was
Page *6 sentenced to to 240 months incarceration. The judgment of sentence was affirmed by Superior Court of Pennsylvania on February 3, 2004. The Defendant filed a timely petition for allowance appeal Supreme Court of Pennsylvania, which was denied on July 1, 2004. The Defendant did not seek review by the Supreme Court the United States.
The Defendant filed his first, counseled, PCRA petition on September 2005. Following a heating, the PCRA was denied on November 5, 2007, and Defendant did not appeal. The Defendant filed a second, pro se PCRA petition on June 3, 2008. The pettin was dismissed on September 22, 2008. He filed third PCRA petition on Augtist 28, 2013. His third PCRA petition was found be untimely, and'the Court therefore denied petition. The Superior Court affirmed order denying the petition. A Petition for Allowance Appeal filed with the Pennsylvania Supreme Court was denied on December 30, 2014. Defendant filed his fourth PCRA petition on November 23, 2015. Defendant's fourth PCRA petition was dismissed by order of this Court on February 2, 2016. Defendant timely appealed the order dismissing his fourth PCRA; however, Superior Court affirmed the order the PCRA court on September 12, 2016.
Defendant's fifth PCRA petition npw under review. That petition was filed on October 20.16, substantially alleges the same matters as his previous PCRA petitions.
Page 2 *7 Jurisdiction
II. A threshold inquiry in reviewing a PCRA petition is whether the reviewing court has jurisdiction to rule on the merits of the Petitioner's claims. The postconviction court only has jurisdiction overly timely PCRA petitions. If a petition is untimely, the postconviction court has no jurisdiction address substantive claims. Commonwealth v. Lewis, 63 A.3d 1280-81 (Pa. Super. Ct. 2013) ("if a PCRA petition, neither [the Superior Court] nor the [PCRA] court has jurisdiction over the petition").
A reviewing court's jurisdiction is defined explicitly by statute. The Post - Conviction Relief Act provides that any petition, including second or subsequent petition, must be filed within one year date the judgment becomes final, unless an exception applies. 42 Pa. C.S.A. § 9545(b)(1). Unless the petitioner can show that his or her petition is timely, the Court lacks jurisdiction address the petition's merits. Commonwealth v. Cintora, 69 A.3d 759, 762 (Pa. Super. Ct. 2013).
A petition timely two situations: The first is where the petition is filed within one year of the date that judgment became final. A judgment becomes final for purposes PCRA review at conclusion direct review, including discretionary review Supreme Court the United States Supreme
Page *8 Court of Pennsylvania, or at the expiration of time for seeking the review. 42 Pa. Cons. Stat. § 9545(b)(3).
The second is where the Petitioner can plead and prove that one of statutory exceptions to the one-year time bar is applicable. Commonwealth v. Jones, 54 A.3d 16-17 (Pa. 2012). The Act lists three exceptions the one-year rule. An otherwise untimely petition may nevertheless be considered if the petition alleges and the petitionerproves that: , the failure raise the claim previously was the result of
(i) interference by government officials with presentation of the claim in violation theConstitution or laws this Commonwealth or the Constitution or laws the United States;
(ii) the facts upon which the claim is predicated were unknown to petitioner could not have been ascertained by the exercise of due diligence; right asserted constitutional right that was recognized
(iii) by Supreme Court the United States or the Supreme Court of Pennsylvania after, the time provided this section has been held by that court to apply retroactively.
42 Pa. C.S.A..§ 9545(b)(1)(i)-(iii); see also Commonwealth v. Fairy, 737 A.2d 214, 218 (Pa. 1999). Any petition invoking one these exceptions must be filed within days of the date .,the claim could have been presented. 42 Pa. C.S.A. § 9545(b)(2).
It is clear that petition sub judice does not comport with these requirements. The Petitioner's judgment became final on or about September
Page 4 ninety-one days after his Petition for Allows of Appeal was denied by Supreme Court of Pennsylvania and he declined to seek review by the Supreme Court of the United States. See U.S. Sup. Ct. R. 13(1) ("a petition for a writ of certiorari to review a judgment in any case, civil or criminal, entered by a state court last resort is timely when it is filed with the Clerk this Court within 90 days after entry judgment"). Petitioner therefore had until September 2005, to file timely PCRA petition.
The Defendant therefore must show that he qualifies under statute's exceptions. The Defendant has failed to plead and prove any of these statutory exceptions. Defendant'S instant petition is substantially same as his fourth petition, the dismissal, which was upheld by the Superior Court in its order of September 12,2016, wherein Superior Court found Defendant ". . . failed to demonstrate tliat he has discovered any fact related to his conviction or sentence."' Given the identical nature the claims in Defendant's fourth and fifth petitions, this Court finds that the issues presented Defendant's instant petition have been previously litigated and found to be without merit.
Therefore, having found that this Court lacks jurisdiction grant Petitioner's request for relief, this Court is satisfied that there are no genuine issues concerning any material fact Petitioner not entitled post -conviction
Com v. Smith, 1%lo.,322 WDA 2016, p. [7] (Sept. 12, 2016),
Page *10 collateral relief Pa. R. Crim. P. 907(1). The Court thus issues notice its intent to dismiss the petition. Pursuant Pennsylvania Rule Criminal Procedure 907(1), defendant May respond this proposed dismissal within days this notice. An order attached compliance with Pennsylvania Rule Criminal Procedure 907(4).
Page 6 *11 Qirculated 08/25/2017 05:03 PM ORDER- PCRA DISMISSED H IN THE COURT OF COMMON PLEAS OF BEAVER COUNTY PENNSYLVANIA CRIMINAL DIVISION-LAW COMMONWEALTH OF
PENNSYLVANIA
vs. NOS. 967-2001; 1148, 1151-2005 ANTHONY TUSWEET SMITH
H. KNAFELC, J. February 10, 2017
OPINION & ORDER The Defendant, Anthony Tuswect Smith, filed his fifth Petition for Relief under the Post - Conviction Relief Act on October 24, 2016. On December 13, pursuant to Pa.R.Crim.Pro.
907(1), Defendant was provided Notice Conti's intent to dismiss his Petition for Relief under the Post -Conviction Relief Act without further proceedings as the Petition was untimely.
On January 3, 2017 the Defendant filed timely written objection to Court's intent dismiss without a hearing.
Opinion For the reasons set forth in Court's October 24, 2016 Notice, the Defendant's judgment sentence beeam&final on or about September 2004 and the present PCRA Petition therefore patently Untimely.
The Defendant may proceed with an otherwise untimely Petition only if he alleges and proves:
-(i) the failure to raise the claim previously was the result interference by government officials with the presentation claim violation *12 Constitution or laws of this Commonwealth or the Constitution or laws of United States;
(ii) the facts upon which the claim is predicated were unknown to 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 Suprepe 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).
The Defendant avers that this untimely Petition is permitted under 42 Pa.C.S.A. §9545(b)(1)(i) and §9545(b)(l)(ii) in that:
(1) The Conamonwealth presented at trial an inaccurate stipulation as to the chain of custody regarding a glove, residue, and a firearm; and
(2) The Defendant is actually innocent this offense.
The Court finds that these alleged exceptions to the PCRA's time imitations are inapplicable. First, the alleged inaccurate stipulation presented by the Commonwealth is not government interference thatprevented Defendant from presenting this claim in a timely PCRA Petition, as required by 42 Pa.C.S.A. §9545(b)(1)(i); Defendant has merely rephrased a substantive allegation error and/or trial counsel ineffectiveness, Second, pursuant 42 Pa.C.S.A. §9545.(b)(2), lalnypetition invoking an exception provided paragraph (I) shall be filed within 60 days the date the claim could have been presented." The Defendant's allegations are based upon trial transcripts Pennsylvania State Police ("PSP") property records that have existed for litany years-not upon the PSP denial subpoena September 2016-and therefore Defendant has failed raise these matters within 60 days when they could have been.presented. Finally, Comment to Pa.R.Crim.Pro. provides "Second or subsequent petitions will not be entertained unless strong prima fide showing offered to
demonstrate that a miscarriage justice may have occurred.... This standard met if petitioner can deMonstrate ... that the petitioner is innocent the crimes charged." However, this does not negate the requirement that a Petition bp timely filed. See Pa.C.S.A. , .
§954.5(b)(1)("Arly petition, under this subchapter, including a second or subsequent petition,
shall be filed within one year date the judgment becomes final....)(emphasis added).
WHEREFORE, the Court finds that Defendant's Petition for Relief under the Post - Conviction Relief Act is untimely that the Defendant has failed prove statutory exception PCRA's time limitations. The Court therefore enters following Order: