Com. v. Smith, G. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
GREGORY SMITH, :
:
Appellant : No. 1024 EDA 2017
Appeal from the PCRA Order February 28, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0401641-2004
BEFORE: DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED MAY 16, 2018
Appellant, Gregory Smith, appeals pro se from the February 28, 2017
Order entered in the Philadelphia County Court of Common Pleas dismissing
the petition, titled “Petition for Habeas Corpus Writ/Petition 42 Pa.C.S. §§
6501-6506,” as an untimely second petition cognizable under the Post-
Conviction Relief Act (“PCRA”). After careful review, we affirm.
This Court previously set forth the underlying facts, and we need not
repeat them in detail. See Commonwealth v. Smith, No. 1369 EDA 2009,
unpublished memorandum at 1-5 (Pa. Super. filed June 29, 2010), appeal
denied, 23 A.3d 541 (Pa. 2011). In summary, on March 10, 2004, Officer
James Kuzowsky attempted to stop Appellant on a Philadelphia street because
he matched the description of an assailant in a reported rape in progress.
Appellant fled from the police and eventually drew a handgun and placed the
barrel of the gun to Officer Kuzowsky’s forehead. When Officer Kuzowsky
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* Former Justice specially assigned to the Superior Court.
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drew his own weapon, Appellant dropped his handgun, pleaded with the officer
not to shoot him, and again fled from the officer.
Officer Kuzowsky eventually caught up with Appellant and restrained
him after a brief struggle in which Appellant kicked and punched Officer
Kuzowsky. Police recovered $496, twenty-nine individual packets of crack
cocaine, and four packets of marijuana. The Commonwealth charged him with
various drug and firearms offenses.
A jury convicted Appellant of Possession of a Controlled Substance With
Intent to Deliver, Possession of an Instrument of Crime (“PIC”), Persons Not
to Possess Firearms, Carrying a Firearm Without a License, and Carrying a
Firearm in Public in Philadelphia.1 On April 22, 2005, the trial court imposed
an aggregate term of 16 to 32 years’ incarceration.
On August 11, 2006, this Court affirmed Appellant’s Judgment of
Sentence. Commonwealth v. Smith, 909 A.2d 887 (Pa. Super. 2006)
(unpublished memorandum). Appellant did not seek review by the
Pennsylvania Supreme Court. Appellant’s Judgment of Sentence became final
on September 11, 2006, when his time for seeking review with the
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135 P.S. § 780-113(a)(30); 18 Pa.C.S. § 907; 18 Pa.C.S. § 6105; 18 Pa.C.S.
§ 6106; and 18 Pa.C.S. § 6108, respectively.
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Pennsylvania Supreme Court expired.2 See 42 Pa.C.S. § 9545(b)(3);
Pa.R.A.P. 1113.
On July 12, 2007, Appellant filed a timely pro se PCRA Petition, his first,
in which he asserted that his trial counsel was ineffective. 3 The PCRA court
appointed counsel, who filed an amended PCRA Petition on April 17, 2008.
Following a Grazier4 hearing, the PCRA court permitted Appellant to proceed
pro se. After providing notice to Appellant pursuant to Pa.R.Crim.P. 907, the
PCRA court dismissed Appellant’s PCRA Petition without a hearing on April 17,
2009. Appellant filed a timely appeal. On June 29, 2010, this Court affirmed
in part and remanded to allow the trial court to record properly Appellant’s
PIC sentence. See Commonwealth v. Smith, 6 A.3d 548 (Pa. Super. 2010).
The trial court properly recorded Appellant’s sentence for PIC on December 9,
2010. On June 8, 2011, our Supreme Court denied allowance of appeal.
Commonwealth v. Smith, 23 A.3d 541 (Pa. 2011).
On September 15, 2014, Appellant filed the instant pro se Petition, titled
“Petition for Habeas Corpus Writ/Petition 42 Pa.C.S. §§ 6501-6506.” On
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2 September 10, 2006, was a Sunday. See 1 Pa.C.S. § 1908.
3 Appellant claimed that trial counsel was ineffective (1) for failing to object
to the prosecutor’s references to Appellant’s post-arrest silence during cross-
examination, and (2) for failing to challenge the sufficiency of the evidence
supporting his PIC conviction.
4 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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February 28, 2017, the PCRA court dismissed the Petition as an untimely PCRA
Petition without a hearing after providing notice pursuant to Pa.R.Crim.P.
907.5
Appellant timely appealed. The PCRA court did not order Appellant to
file a Pa.R.A.P. 1925(b) Statement of Errors. The PCRA court filed a Pa.R.A.P.
1925(a) Opinion and opined that Appellant’s PCRA Petition was untimely and
no timeliness exception applied.
Appellant presents two issues for our review:
[1.] Did the lower court abuse its discretion when it dismissed the
habeas corpus Petition after deciding that it should be reviewed
as a PCRA Petition and held to the time limitations of the PCRA
statute?
[2.] Did the lower court abuse its discretion when it failed to
address the merits of the claims raised in the habeas corpus
Petition?
Appellant’s Brief at 6 (capitalization and suggested answers omitted).
We review the denial of a PCRA Petition to determine whether the record
supports the PCRA court’s findings and whether its Order is otherwise free of
legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). There
is no right to a PCRA hearing; a hearing is unnecessary where the PCRA court
can determine from the record that there are no genuine issues of material
fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008).
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5 The record does not indicate a reason for the court’s three-year delay
between the filing of the Petition and its dismissal.
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Before addressing the merits of Appellant’s claims, we must first
determine whether we have jurisdiction to entertain the underlying PCRA
Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)
(explaining that the timeliness of a PCRA Petition is a jurisdictional requisite).
Under the PCRA, any Petition “including a second or subsequent petition,
shall be filed within one year of the date the judgment becomes final[.]” 42
Pa.C.S. § 9545(b)(1). A Judgment of Sentence becomes final “at the
conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3). Because
the PCRA’s timeliness requirements are jurisdictional in nature, a court may
not address the merits of the issues raised if the PCRA petition was not timely
filed. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
Appellant titled his September 15, 2014 filing “Petition for Habeas
Corpus Writ/Petition 42 Pa.C.S. §§ 6501-6506.” In his first issue, Appellant
challenges the court’s treatment of his filing as a PCRA Petition, rather than
as a writ for habeas corpus relief. Appellant’s Brief at 6, 10-11.6
It is well-settled that the PCRA is intended to be the sole means
of achieving post-conviction relief. 42 Pa.C.S. § 9542. Unless the
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6 Appellant attempts to incorporate by reference arguments set forth in his
September 15, 2014 filing. See Appellant’s Brief at 8. Our Supreme Court
has held that incorporation by reference does not comply with our appellate
rules and is an “unacceptable manner of appellate advocacy for the proper
presentation of a claim for relief[.]” Commonwealth v. Briggs, 12 A.3d 291,
342-43 (Pa. 2011).
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PCRA could not provide for a potential remedy, the PCRA statute
subsumes the writ of habeas corpus. Issues that are cognizable
under the PCRA must be raised in a timely PCRA petition and
cannot be raised in a habeas corpus petition.
Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa. Super. 2013) (citations
and footnote omitted). See also Commonwealth v. Fahy, 737 A.2d 214,
224 (Pa. 1999)(noting that “the writ continues to exist as an independent
basis for relief only in cases in which there is no remedy under the PCRA.”).
“[A] defendant cannot escape the PCRA time-bar by titling his petition
or motion as a writ of habeas corpus.” Taylor, supra at 466.
Further, Appellant must also establish that the issues raised in the PCRA
petition have not been previously litigated or waived. 42 Pa.C.S. §
9543(a)(3). An allegation of error “is waived if the petitioner could have raised
it but failed to do so before trial, at trial, during unitary review, on appeal[,]
or in a prior state postconviction proceeding.” 42 Pa.C.S. § 9544(b).
“Additionally, an issue is not cognizable under the PCRA where the petitioner
simply attempts to relitigate, without couching in terms of ineffective
assistance, a claim that has already been deemed reviewed on direct appeal.”
Commonwealth v. Fowler, 930 A.2d 586, 594 (Pa. Super. 2007).
In sum, “[t]he PCRA provides a remedy for certain types of claims. 42
Pa.C.S. § 9543(a). Simply because a petition is not considered because of
previous litigation or waiver does not alter the PCRA’s coverage of such claims
or make habeas corpus an alternative basis for relief.” Fahy, supra at 224.
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See also Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super.
2001) (same).
We agree that the PCRA court properly treated Appellant’s filing as a
PCRA Petition. Appellant avers that his arrest and his sentence were illegal
because he “had nothing to do with any rape,” the reason police officers
stopped him on the street, and he “did not break any law by his refusal to talk
to the police.” Appellant’s Brief at 9. Appellant also avers that the sentencing
court erroneously relied on “prior criminal history that included juvenile
charges.” Appellant’s Brief at 11. Both of these issues fall within the purview
of the PCRA.7 Accordingly, the court properly deemed Appellant’s filing a PCRA
Petition.
With respect to Appellant’s second issue, as stated above, the PCRA’s
time constraints are jurisdictional and a court may not address the merits of
a PCRA petition over which it has no jurisdiction. Albrecht, supra. Here,
Appellant’s Judgment of Sentence became final on September 11, 2006, when
his time for seeking review with the Pennsylvania Supreme Court expired.
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7Appellant previously challenged the search and seizure on direct appeal. See
Commonwealth v. Smith, 909 A.2d 887 (Pa. Super. 2006) (unpublished
memorandum). Insofar as Appellant asserts a belated challenge to the
discretionary aspects of his sentence by baldly averring that the court
impermissibly considered his juvenile record in fashioning a sentence,
Appellant waived this issue for failing to preserve the issue on direct appeal.
Appellant cannot now bring these issues under the purview of habeas corpus
proceedings. Fahy, supra at 224 (noting that prior review or waiver of claims
does “not alter the PCRA’s coverage of such claims or make habeas corpus an
alternative basis for relief.”).
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See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 1113 (allowing thirty days to file a
Petition for Allowance of Appeal). In order to be timely, Appellant needed to
submit his PCRA Petition by September 11, 2007. 42 Pa.C.S. § 9545(b).
Appellant filed this PCRA Petition on September 15, 2014, more than eight
years after his Judgment of Sentence became final. The PCRA court properly
concluded that Appellant’s Petition is facially untimely. PCRA Court Opinion,
dated 5/22/17, at 2-3.
Pennsylvania courts may consider an untimely PCRA petition, however,
if the appellant pleads and proves one of the three exceptions set forth in 42
Pa.C.S. § 9545(b). Here, Appellant has not attempted to plead or prove that
his Petition falls within the timeliness exceptions provided in 42 Pa.C.S. §
9545(b)(1). Accordingly, the PCRA court properly dismissed Appellant’s
Petition as untimely and properly concluded that it had no jurisdiction to
address the merits of the Petition.
We, thus, affirm the denial of PCRA relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/16/18
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