Com. v. Smith, S. ( 2023 )

J-S04027-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SHYKEIR SMITH :
:
Appellant : No. 525 EDA 2022
Appeal from the PCRA Order Entered November 26, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012874-2014
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SHYKEIR SMITH :
:
Appellant : No. 526 EDA 2022
Appeal from the PCRA Order Entered November 26, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012875-2014
BEFORE: MURRAY, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED FEBRUARY 22, 2023
Appellant, Shykeir Smith, appeals nunc pro tunc from the order entered
in the Philadelphia County Court of Common Pleas, which denied as untimely
his first petition filed pursuant to the Post Conviction Relief Act (“PCRA”), at
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* Retired Senior Judge assigned to the Superior Court.
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42 Pa.C.S.A. §§ 9541-9546. We affirm and grant counsel’s petition to
withdraw.
The relevant facts and procedural history of this case are as follows. A
jury convicted Appellant at two underlying docket numbers of two counts of
attempted murder, and one count each of firearms not to be carried without
a license, carrying firearms in public on streets of Philadelphia, possessing an
instrument of crime, and robbery. The court sentenced Appellant on October
1, 2015, to an aggregate term of 38½ to 82 years’ imprisonment. This Court
affirmed the judgment of sentence on May 2, 2017, and our Supreme Court
denied allowance of appeal on September 11, 2017. See Commonwealth v.
Smith, No. 3274 EDA 2015 (Pa.Super. filed May 2, 2017) (unpublished
memorandum), appeal denied, 642 Pa. 561, 170 A.3d 1037 (2017).
Appellant filed the current PCRA petition pro se on February 19, 2019.
The court appointed counsel, who filed a no-merit letter per Turner/Finley1
and motion to withdraw on August 29, 2019. On October 30, 2019, the PCRA
court issued notice of its intent to dismiss the petition without a hearing per
Pa.R.Crim.P. 907. Appellant did not respond, and the court denied PCRA relief
on November 26, 2019. The court subsequently entered an order granting
PCRA counsel’s request to withdraw.
Due to some procedural issues that occurred thereafter, the court
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1See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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appointed new counsel for Appellant, who successfully sought reinstatement
of Appellant’s appeal rights nunc pro tunc. Appellant timely filed notices of
appeal nunc pro tunc at each underlying docket from the denial of PCRA relief,
which this Court later consolidated sua sponte. The court did not order, and
Appellant did not file, a concise statement of errors per Pa.R.A.P. 1925(b).
Preliminarily, current appellate counsel has filed a motion to withdraw
and no-merit2 brief in this Court. Before counsel can be permitted to withdraw
from representing a petitioner under the PCRA, Pennsylvania law requires
counsel to file a “no-merit” brief or letter pursuant to Turner and Finley.
Commonwealth v. Karanicolas, 836 A.2d 940 (Pa.Super. 2003).
[C]ounsel must…submit a “no-merit” letter to the [PCRA]
court, or brief on appeal to this Court, detailing the nature
and extent of counsel’s diligent review of the case, listing
the issues which the petitioner wants to have reviewed,
explaining why and how those issues lack merit, and
requesting permission to withdraw.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007). Counsel
must also send to the petitioner a copy of the “no-merit” letter or brief and
motion to withdraw and advise petitioner of his right to proceed pro se or with
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2 Counsel designated his no-merit brief as one per Anders v. California, 386
U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which applies to attorneys
seeking to withdraw representation on direct appeal. We can accept counsel’s
filing in this case as a Turner/Finley brief. See Commonwealth v.
Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super. 2004), appeal denied, 584
Pa. 691, 882 A.2d 477 (2005) (stating Superior Court can accept Anders brief
in lieu of Turner/Finley brief, where PCRA counsel seeks to withdraw on
appeal).
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privately retained counsel. Id. “Substantial compliance with these
requirements will satisfy the criteria.” Karanicolas, supra at 947.
Instantly, appellate counsel filed a motion to withdraw as counsel and a
Turner/Finley brief detailing the nature of counsel’s review and explaining
why Appellant’s claims lack merit. Counsel’s brief also demonstrates he
reviewed the certified record and found no meritorious issues for appeal.
Counsel notified Appellant of counsel’s request to withdraw and advised
Appellant regarding his rights. Thus, counsel substantially complied with the
Turner/Finley requirements. See Wrecks, supra; Karanicolas, supra.Accordingly, we proceed with our independent assessment. See Turner,
supra at 494-95, 544 A.2d at 928-29 (stating appellate court must conduct
independent analysis and agree with counsel that appeal is frivolous).
Counsel raises the following issue on Appellant’s behalf:
Did the PCRA Court err when it dismissed [Appellant’s] PCRA
petition without a hearing as untimely filed and not raising
a meritorious claim under the PCRA?
(No-Merit Brief at 5).3
On appeal, Appellant acknowledges that his current PCRA petition is
facially untimely. Appellant argues, however, that he satisfies the
governmental interference exception to the time-bar because he was “in the
hole” after sentencing and had no access to the law library. Appellant also
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3 Appellant has not responded to the no-merit brief pro se or with newly-
retained counsel.
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claims he did not know about the PCRA’s time limitations. Further, Appellant
insists that his prior counsel were ineffective. Appellant also contends the
court should have granted a mistrial where one of the jurors allegedly
mouthed the word “guilty” before deliberations began. Finally, Appellant
complains the trial judge demonstrated bias against Appellant during the
proceedings. Following our independent review of the record, we agree with
counsel that the appeal is frivolous. See Turner, supra.The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Ballance, 203 A.3d 1027 (Pa.Super. 2019), appeal
denied, 654 Pa. 600, 216 A.3d 1044 (2019). A PCRA petition must be filed
within one year of the date the underlying judgment becomes final. 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. 42 Pa.C.S.A. §
9545(b)(3). Generally, to obtain merits review of a PCRA petition filed more
than one year after the judgment of sentence became final, the petitioner
must allege and prove at least one of the three timeliness exceptions:
(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
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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.A. § 9545(b)(1)(i)-(iii). “Any petition invoking an exception
provided in paragraph (1) shall be filed within one year of the date the claim
could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).
Instantly, Appellant’s judgment of sentence became final on December
10, 2017, after the time in which to file a petition for writ of certiorari with the
United States Supreme Court expired. See 42 Pa.C.S.A. § 9543(b)(3);
U.S.S.Ct.R. 13 (stating petitioner has 90 days to file petition for writ of
certiorari). Appellant filed the current PCRA petition on February 19, 2019,
which is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1).
Significantly, Appellant did not allege any exception to the PCRA time-
bar in his pro se PCRA petition. Rather, Appellant merely asserted
ineffectiveness of counsel.4 Nevertheless, Appellant’s allegations of
ineffectiveness do not satisfy any of the exceptions to the time-bar. See
generally 42 Pa.C.S.A. § 9545(b)(4) (stating that for purposes of this
subchapter, “government officials” shall not include defense counsel, whether
appointed or retained); Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d
1264 (2007) (holding that allegation of counsel’s ineffectiveness cannot be
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4 Specifically, Appellant’s pro se PCRA petition alleged: “Ineffective Assistance
of Counsel. I have no knowledge of the law & I have a very low educational
level. I am requesting counsel. My Direct Appeal Counsel lost [a]ll of my
paperwork, including my transcript.” (PCRA Petition, filed 2/19/19, at 5).
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invoked as “new fact” exception to time-bar, except where counsel abandons
client on appeal).
Moreover, to the extent we could consider for the first time on appeal
Appellant’s attempt to invoke the governmental interference exception based
on Appellant’s lack of access to the law library because he was “in the hole,”
our courts have rejected similar arguments. See Commonwealth v.
Albrecht, 606 Pa. 64, 994 A.2d 1091 (2010) (holding restricted incarceration
status of capital inmates did not satisfy governmental interference time-bar
exception where appellant failed to show that any conditions of his
incarceration were illegal); Commonwealth v. Bankhead, 217 A.3d 1245(Pa.Super. 2019) (stating that without assertion of illegality on part of
government officials, restriction on access to prison resources does not qualify
as governmental interference to time-bar exception); Commonwealth v.
Rizvi, 166 A.3d 344 (Pa.Super. 2017) (rejecting appellant’s reliance on
governmental interference exception where appellant claimed that both
limited library resources and restricted housing status frustrated his efforts to
understand and invoke his appellate rights; appellant did not allege that
correctional facility administered its library or housing policies in violation of
his rights under constitutional or state law).
Therefore, Appellant has failed to satisfy any time-bar exception and we
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cannot reach the merits of his underlying claims.5 Accordingly, we affirm the
order dismissing Appellant’s PCRA petition as untimely and grant counsel’s
request to withdraw.
Order affirmed. Petition to withdraw is granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2023
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5 We also note that Appellant challenged on direct appeal the court’s refusal
to grant a mistrial based on the juror allegedly mouthing the word “guilty”
before deliberations began. The trial court decided that Appellant’s parents,
who had seen the juror, misinterpreted what the juror mouthed and that the
juror actually mouthed the word “hungry.” This Court found no abuse of
discretion in the trial court’s finding. See Smith, supra. Therefore, even if
Appellant’s current petition was timely filed, Appellant would have been
precluded from raising this particular claim, as it was previously litigated. See
42 Pa.C.S.A. § 9543(a)(3) (stating that to be eligible for PCRA relief petitioner
must demonstrate allegation of error has not been previously litigated or
waived).
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