Com. v. Smith, R. ( 2019 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
RONALD B. SMITH, : No. 1897 EDA 2018
:
Appellant :
Appeal from the PCRA Order Entered June 5, 2018,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-1241201-1993
BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 16, 2019
Ronald B. Smith appeals pro se from the June 5, 2018 order dismissing
his untimely serial petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
The PCRA court summarized the relevant facts and procedural history
of this case as follows:
[Appellant] was arrested and subsequently charged in
connection with the fatal shooting of William Jones in
Philadelphia in 1992. On July 22, 1994, following a
non-jury trial before the Honorable Lisa A. Richette,
[appellant] was convicted of first-degree murder and
possession of an instrument of crime.[1] On the same
date, the trial court sentenced [appellant] to life
imprisonment. On April 3, 1996, following a direct
appeal, the Superior Court affirmed the judgment of
sentence. The Pennsylvania Supreme Court denied
allocatur on September 24, 1996. [See
1 18 Pa.C.S.A. §§ 2502(a) and 907(a), respectively.
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Commonwealth v. Smith, 679 A.2d 258 (Pa.Super.
1996), appeal denied, 683 A.2d 881 (Pa. 1996).]
[Appellant] filed his first pro se PCRA petition on
November 4, 1996. Attorney Michael J. Farrell,
Esquire, was appointed and subsequently filed an
amended petition on September 29, 1998. The PCRA
court denied relief on October 13, 1999. On April 30,
2001, the Superior Court affirmed the PCRA court’s
denial of post-conviction relief. [See
Commonwealth v. Smith, 778 A.2d 1248(Pa.Super. 2001).] [Appellant] did not seek
allocatur in the Pennsylvania Supreme Court.
[Appellant] was subsequently unsuccessful in
obtaining collateral relief through a serial PCRA
petition filed in 2012.
On May 30, 2017, [appellant] filed the instant pro se
PCRA petition, his third. [Appellant] submitted a
supplemental petition[,] which was reviewed jointly
with his initial petition. Pursuant to Pennsylvania Rule
of Criminal Procedure 907, [appellant] was served
notice of the PCRA court’s intention to dismiss his
petition on April 3, 2018. [Appellant] submitted a
response to the Rule 907 notice on April 24, 2018. On
June 5, 2018, the PCRA court dismissed his PCRA
petition as untimely. On June 20, 2018, the instant
notice of appeal was timely filed to the Superior
Court.[2]
PCRA court opinion, 8/15/18 at 1-2 (footnotes omitted).
Appellant raises the following interrelated issues for our review:
I. [D]id the PCRA Court err, and commit reversible
error when it failed to recognize a timely
presented petition to the court, that was
pertinent to the due process of the law with
regards to final disposition of a (PCRA) petition
2 The PCRA court did not order appellant to file a concise statement of errors
complained of on appeal, pursuant to Pa.R.A.P. 1925(b). The PCRA court filed
its Rule 1925(a) opinion on August 15, 2018.
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by stating that petitioner failed to show due
diligence?
II. Did the PCRA Court err, and commit reversible
error when it dismissed [a]ppellant’s petition
without the benefit of a properly conducted
evidentiary hearing to determine the credibility
of the presented statement(s) in the form of [a]
phone conversation with [C]ommonwealth
witness Shawn Parker that led to the filing of the
said petition, and therefore being able to render
a fully informed legal opinion?
III. Did the PCRA Court err, and commit reversible
error when it dismissed [a]ppellant’s petition
without the benefit of allowing appointed
[PCRA] counsel to amend, and perfect
[appellant’s] petition by allowing counsel to
retrieve the phone conversation between
[appellant], Johnny Walls, and Commonwealth
witness Shawn Parker?
Appellant’s brief at VI.
Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s
findings will not be disturbed unless there is no support for the findings in the
certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)
(citations omitted). “This Court grants great deference to the findings of the
PCRA court, and we will not disturb those findings merely because the record
could support a contrary holding.” Commonwealth v. Hickman, 799 A.2d
136, 140 (Pa.Super. 2002) (citation omitted).
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Preliminarily, we must consider the timeliness of appellant’s PCRA
petition because it implicates the jurisdiction of this court and the PCRA court.
Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014) (citation
omitted). All PCRA petitions, including second and subsequent petitions, must
be filed within one year of when a defendant’s judgment of sentence becomes
final. See 42 Pa.C.S.A. § 9545(b)(1). “[A] judgment 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.A. § 9545(b)(3).
Here, the record reveals that appellant’s judgment of sentence became
final on December 23, 1996, 90 days after the Pennsylvania Supreme Court
denied allowance of appeal and the deadline for filing a petition for writ of
certiorari in the United States Supreme Court expired. See id. Accordingly,
appellant had until December 23, 1997 to file a timely PCRA petition. See id.
at § 9545(b)(1). Appellant’s instant petition was filed on May 30, 2017, more
than 20 years after his judgment of sentence became final, and is patently
untimely, unless appellant can plead and prove that one of the three statutory
exceptions to the one-year jurisdictional time-bar applies.
The three statutory exceptions to the PCRA time-bar are as follows:
(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;
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(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.A. § 9545(b)(1). “Any petition invoking an exception . . . shall be
filed within 60 days of the date the claim could have been presented.” Id. at
§ 9545(b)(2).3
Instantly, appellant invokes the “newly-discovered facts” exception to
the PCRA time-bar based on a three-way telephone conversation he allegedly
had with Commonwealth eyewitness Shawn Parker and his friend,
Johnny Walls, on April 8, 2017, wherein he claims that Parker acknowledged
that he falsely identified appellant as William Jones’ murderer. (Appellant’s
brief at 4-5.) In support of this claim, appellant has attached a signed affidavit
from Walls to his petition and brief detailing this conversation. (See
appellant’s brief at appendix, exhibit JW; pro se “motion”, 2/15/18 at 3.)
Appellant contends that these “newly discovered facts” are exculpatory in
3A 2018 amendment to Section 9545(b)(2) substituted “within one year” for
“within 60 days.” The effective date of the amendment is December 24, 2018,
and the amendment applies to claims arising one year before the effective
date or thereafter. See Act 2018-146, § 3. Here, because appellant’s claim
arose prior to December 24, 2017, the 60-day rule applies.
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nature and warrant that a new trial be granted. (Appellant’s brief at 4-10.)
We disagree.
As noted, in order to prevail on a “newly-discovered facts” claim,
appellant is required to demonstrate “that the facts upon which the claim was
predicated were unknown and could not have been ascertained by the exercise
of due diligence.” Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa.
2007) (emphasis and numeration omitted), citing 42 Pa.C.S.A.
§ 9545(b)(1)(ii). Here, our review of the record reveals that appellant has
failed to prove that the alleged “fact” that Parker was falsely inculpating him
was unknown to him nor undiscoverable through the exercise of due diligence.
The record reveals that appellant argued that Shawn Parker falsely
identified him as William Jones’ murderer as early as his 1994 bench trial,
cross-examined Parker with regard to the veracity of his testimony, and
presented a witness who contended that Parker, and not appellant, was the
shooter. (Notes of testimony, 7/21/94 at 355-398; 7/22/94 at 430.)
Moreover, appellant acknowledged that he waited until November of 2004, a
decade after his conviction, before writing the first of three letters to Parker
requesting that he come forward and tell the truth. (Appellant’s brief at 6 and
appendix, exhibits 1-3.) Appellant has failed to demonstrate that his decision
to wait more than ten years before attempting to contact Parker constituted
a reasonable step to protect his own interests.
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Under Section 9545(b)(1)(ii), “due diligence requires neither perfect
vigilance nor punctilious care, but rather it requires reasonable efforts by a
petitioner, based on the particular circumstances, to uncover facts that may
support a claim for collateral relief.” Commonwealth v. Brown, 141 A.3d
491, 506 (Pa.Super. 2016) (citation omitted; emphasis added). Clearly,
appellant failed to undertake reasonable efforts in this instance. Based on the
foregoing, we find that appellant has failed to demonstrate that his untimely
petition satisfies the newly discovered fact exception to the statutory one-year
time-bar.
Appellant next argues that the PCRA court erred in dismissing his PCRA
petition without conducting an evidentiary hearing on all the aforementioned
issues. (Appellant’s brief at 11-13.) We disagree.
This court has long recognized that there is no absolute right to an
evidentiary hearing. Commonwealth v. Hart, 911 A.2d 939, 941 (Pa.Super.
2006) (citation omitted). “It is within the PCRA court’s discretion to decline
to hold a hearing if the petitioner’s claim is patently frivolous and has no
support either in the record or other evidence.” Commonwealth v. Wah,
42 A.3d 335, 338 (Pa.Super. 2012) (citations omitted). When the PCRA court
denies a petition without an evidentiary hearing, we “examine each issue
raised in the PCRA petition in light of the record certified before it in order to
determine if the PCRA court erred in its determination that there were no
genuine issues of material fact in controversy and in denying relief without
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conducting an evidentiary hearing.” Commonwealth v. Khalifah, 852 A.2d
1238, 1240 (Pa.Super. 2004).
As discussed, the PCRA court properly found that appellant failed to
satisfy any of the statutory exceptions to the time-bar set forth in
Section 9545(b)(1). Accordingly, we conclude that the PCRA court lacked
jurisdiction to consider the merits of appellant’s claim and discern no error on
the part of the PCRA court in dismissing appellant’s untimely petition without
conducting an evidentiary hearing.
Lastly, appellant contends that the PCRA court erred in not allowing an
appointed counsel “to amend[] and perfect” his third, untimely pro se
petition. (Appellant’s brief at 13-14).
It is well settled that a defendant has a rule-based right to
court-appointed counsel for the first PCRA petition. See Pa.R.Crim.P. 904(A);
Commonwealth v. Jackson, 965 A.2d 280, 283 (Pa.Super. 2009).
However, with respect to a second or subsequent PCRA petition, Rule 904(D)
governs:
On a second or subsequent petition, when an
unrepresented defendant satisfies the judge that the
defendant is unable to afford or otherwise procure
counsel, and an evidentiary hearing is required as
provided in Rule 908, the judge shall appoint counsel
to represent the defendant.
Pa.R.Crim.P. 904(D). The comment explains “the rule now limits appointment
of counsel on second or subsequent petitions so that counsel should be
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appointed only if the judge determines that an evidentiary hearing is
required.” Pa.R.Crim.P. 904 Comment (emphasis added).
Here, there is no indication that the PCRA court appointed counsel let
alone determined that an evidentiary hearing was required for appellant’s
third, untimely PCRA petition. Accordingly, appellant’s final claim of PCRA
court error is meritless.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/16/19
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