Com. v. Smith, W.A. ( 2024 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WALTER A. SMITH :
:
Appellant : No. 288 EDA 2024
Appeal from the PCRA Order Entered December 22, 2023
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0607261-2003
BEFORE: LAZARUS, P.J., STABILE, J., and KING, J.
MEMORANDUM BY KING, J.: FILED NOVEMBER 27, 2024
Appellant, Walter A. Smith, appeals pro se from the order entered in the
Philadelphia County Court of Common Pleas, which dismissed as untimely his
third petition brought pursuant to the Post Conviction Relief Act. 1 We affirm.
The relevant facts and procedural history of this case are as follows. On
April 29, 2005, following a bench trial, the court convicted Appellant of first-
degree murder, firearms not to be carried without a license, carrying firearms
on a public street in Philadelphia, and possessing instruments of crime. The
court sentenced Appellant to a mandatory term of life imprisonment on July
8, 2005. On July 15, 2005, Appellant filed a post-sentence motion, claiming,
in relevant part, that trial counsel was ineffective for failing to discover that
one of the Commonwealth’s witnesses at trial allegedly testified under an
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1 42 Pa.C.S.A. §§ 9541-9546.
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alias. The court denied Appellant’s post-sentence motion on December 9,
2005. This Court affirmed Appellant’s judgment of sentence on August 14,
2007, and our Supreme Court denied Appellant’s petition for allowance of
appeal on April 2, 2008. See Commonwealth v. Smith, 935 A.2d 22(Pa.Super. 2007) (unpublished memorandum), appeal denied, 596 Pa. 744,
946 A.2d 686 (2008).
On October 22, 2008, Appellant filed his first PCRA petition. Following
a remand for an evidentiary hearing, the PCRA court ultimately denied relief
on May 11, 2012. This Court affirmed the order denying PCRA relief on May
7, 2013, and our Supreme Court denied allowance of appeal on September
17, 2013. See Commonwealth v. Smith, 81 A.3d 991 (Pa.Super. 2013)
(unpublished memorandum), appeal denied, 621 Pa. 672, 74 A.3d 1031(2013).
Appellant filed a second PCRA petition on December 22, 2016, asserting
that his claim fell under the governmental interference exception to the PCRA
time-bar because the Commonwealth withheld evidence that one of its
witnesses testified under an alias, amounting to a Brady2 violation. The PCRA
court dismissed Appellant’s petition as untimely, noting that Appellant was
aware of the information underlying his claim as early as 2005, when he first
raised the claim in his post-sentence motion. This Court affirmed the order
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2 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
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denying PCRA relief on January 23, 2018, and our Supreme Court denied
allowance of appeal on November 20, 2018. See Commonwealth v. Smith,
183 A.3d 1080 (Pa.Super. 2018) (unpublished memorandum), appeal denied,
649 Pa. 636, 197 A.3d 1174 (2018).
On October 18, 2022, Appellant filed the instant PCRA petition, claiming
that he satisfied the new constitutional right exception to the PCRA time-bar
based on our Supreme Court’s decision in Commonwealth v. Bradley, ___
Pa. ___, 261 A.3d 381 (2021). Appellant further claimed that Bradley
entitled him to raise his layered claim that PCRA counsel and trial counsel were
both ineffective for failing to recognize and argue that a Commonwealth
witness allegedly testified under an alias. On November 1, 2023, the PCRA
court issued notice of its intent to dismiss the petition without a hearing
pursuant to Pa.R.Crim.P. 907, explaining that Bradley did not establish a new
constitutional right as defined by the PCRA timeliness exceptions. Appellant
filed a response on December 21, 2023. The PCRA court formally dismissed
Appellant’s petition as untimely on December 22, 2023. Appellant filed a
timely notice of appeal on January 10, 2024. The court did not order, and
Appellant did not file, a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal.
Appellant raises the following issues for our review:
Whether trial counsel was ineffective for failing to argue
Appellant’s complete innocence as requested and directed
by Appellant as required by McCoy v. Louisiana, 138 S.Ct.
1500, 1510-11 (2018) (counsel’s failure to adhere to client’s
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direction to maintain and argue client’s innocence, … is a
violation of the client’s Sixth Amendment autonomy and is
structural error subject to harmless error analysis) and
PCRA counsel was ineffective, for failing to raise this issue
in his amended PCRA petition?
Whether pursuant to [Bradley, supra] where the
Pennsylvania Supreme Court held that; “we reject the
current Rule 907 procedure by which a petitioner may raise
claims of ineffective assistance of PCRA counsel as
unworkable and offer a modified and flexible approach
allowing a petitioner to raise claims of ineffective PCRA
counsel at the first opportunity, even if on appeal.”
(Appellant’s Brief at 5).
As a preliminary matter, the timeliness of a PCRA petition is a
jurisdictional requisite. Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d
978 (2008), cert. denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277(2009). Pennsylvania law makes clear that no court has jurisdiction to hear
an untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837
A.2d 1157 (2003). The PCRA requires a petition, including a second or
subsequent petition, to be filed within one year of the date the underlying
judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment
of sentence is 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 review.” 42 Pa.C.S.A. §
9545(b)(3).
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
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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
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).
Generally, “a claim of ineffective assistance of counsel does not provide
an exception to the PCRA time bar.” Commonwealth v. Sims, 251 A.3d
445, 448 (Pa.Super. 2021), appeal denied, ___ Pa. ___, 265 A.3d 194 (2021).
Additionally, the “new constitutional right” exception has two requirements:
First, the right asserted must be a right newly recognized by the Supreme
Court of the United States or the Supreme Court of Pennsylvania; second, the
right must have been held by that Court to apply retroactively.
Commonwealth v. Spotz, 642 Pa. 717, 724, 171 A.3d 675, 679 (2017).
On October 20, 2021, our Supreme Court issued its decision in Bradley,
expressly holding “that a PCRA petitioner may, after a PCRA court denies
relief, and after obtaining new counsel or acting pro se, raise claims of PCRA
counsel’s ineffectiveness at the first opportunity to do so, even if on appeal.”
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Bradley, supra at ___, 261 A.3d at 401 (internal footnote omitted).
Nevertheless, Bradley involved ineffectiveness claims that the petitioner
raised on direct appeal following the dismissal of a timely, first PCRA petition.
The Bradley Court noted that “an approach favoring the consideration of
ineffectiveness claims of PCRA counsel on appeal (if the first opportunity to do
so) does not sanction extra-statutory serial petitions.” Id. at ___, 261 A.3d
at 403.
Moreover, in his concurrence, Justice Dougherty emphasized:
Importantly, our decision today does not create an
exception to the PCRA’s jurisdictional time-bar, such that a
petitioner represented by the same counsel in the PCRA
court and on PCRA appeal could file an untimely successive
PCRA petition challenging initial PCRA counsel’s
ineffectiveness because it was his “first opportunity to do
so.”
Id. at ___, 261 A.3d at 406 (Justice Dougherty concurring). Consequently,
this Court declined to extend the holding of Bradley to cases involving
untimely or serial petitions, explaining:
Nothing in Bradley creates a right to file a second PCRA
petition outside the PCRA’s one-year time limit as a method
of raising ineffectiveness of PCRA counsel or permits
recognition of such a right. To the contrary, our Supreme
Court in Bradley unambiguously rejected the filing of a
successive untimely PCRA petition as a permissible method
of vindicating the right to effective representation by PCRA
counsel.
Commonwealth v. Stahl, 292 A.3d 1130, 1136 (Pa.Super. 2023). See also
Commonwealth v. Johnson, No. 696 EDA 2022 (Pa.Super. filed Mar. 7,
2023) (unpublished memorandum) (holding Bradley did not recognize new
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constitutional right permitting PCRA petitioners to file subsequent PCRA
petitions in order to challenge prior PCRA counsel’s ineffective assistance). 3
Instantly, following Appellant’s direct appeal, our Supreme Court denied
Appellant’s petition for allowance of appeal on April 2, 2008. Appellant’s
judgment of sentence became final ninety (90) days later, on or about July 1,
2008. See U.S.Sup.Ct.R. 13 (stating appellant must file petition for writ of
certiorari with United States Supreme Court within 90 days after entry of
judgment by state court of last resort). Thus, Appellant had until July 1, 2009
to file a timely PCRA petition. Appellant filed the current petition on October
18, 2022, which is facially untimely. See 42 Pa.C.S.A. § 9545(b)(1).
Appellant argues that the PCRA court erred in dismissing his petition as
untimely because Bradley permits him to raise a claim of PCRA counsel’s
ineffective assistance at the first opportunity to do so. Nevertheless, this
Court has repeatedly held that Bradley does provide an exception to the
PCRA’s timeliness requirements. See Stahl, supra; Johnson, supra.
Additionally, the record belies Appellant’s claim that the current PCRA petition
was Appellant’s first opportunity to raise his claim that PCRA counsel was
ineffective. Appellant has filed two PCRA petitions prior to the instant one.
Appellant was appointed counsel for both petitions and he does not specify
which PCRA counsel was allegedly ineffective. Regardless, Appellant appealed
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3 See Pa.R.A.P. 126(b) (stating this Court may cite to and rely on for
persuasive value unpublished decisions of this Court filed after May 1, 2019).
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the denial of his first PCRA petition and did not raise a claim that his first PCRA
counsel was ineffective. Appellant also did not raise such a claim in his second
PCRA petition. Appellant appealed the dismissal of his second PCRA petition
and similarly did not raise a claim that either his first or second PCRA counsel
were ineffective. As such, the instant petition was not Appellant’s first
opportunity to raise his claim. As Bradley does not satisfy any of the
exceptions to the PCRA time-bar, Appellant’s petition remains time barred.
Accordingly, we affirm.4
Order affirmed.
Date: 11/27/2024
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4 We further note that the specific claim of ineffective assistance of counsel
that Appellant now raises and argues on appeal was not raised in his PCRA
petition. As such, this claim is waived in any event. See Pa.R.A.P. 302(a)
(stating: “Issues not raised in the [PCRA] court are waived and cannot be
raised for the first time on appeal”).
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