Com. v. Smith, J.

J-S04007-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JASON SMITH :
:
Appellant : No. 1491 EDA 2021
Appeal from the PCRA Order Entered June 17, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-004803-2013
BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 07, 2022
Appellant, Jason Smith, appeals pro se from the order dismissing his
untimely petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-9546. After careful review, we affirm in part, vacate in
part, and remand for further proceedings.
A detailed summary of the facts underlying Appellant’s convictions are
not germane to this appeal. Briefly, on May 15, 2015, a jury convicted
Appellant of first-degree murder, arson, risking catastrophe, abuse of a
corpse, and possession of an instrument of crime. That same day, the trial
court imposed a mandatory minimum sentence of life imprisonment for first-
degree murder, and consecutive sentences of 10-20 years’ incarceration for
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* Former Justice specially assigned to the Superior Court.
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arson, 3.5-7 years’ incarceration for risking a catastrophe, 1-2 years’
incarceration for abusing a corpse, and 2.5-5 years’ incarceration for
possession of an instrument of crime. Appellant filed a timely direct appeal.
This Court affirmed his judgment of sentence, and our Supreme Court
declined further review on June 25, 2018. Commonwealth v. Smith, 181
A.3d 1271 (Pa. Super. 2017) (unpublished memorandum), allocatur denied,
187 A.3d 914 (Pa. 2018).
On December 12, 2017, while this Court’s decision on direct appeal
was pending, Appellant prematurely filed a pro se PCRA petition, which the
PCRA court stayed pending the outcome of his appeal. On September 7,
2018, following the resolution of his direct appeal, Appellant’s first PCRA
petition was reinstated, and the lower court appointed PCRA counsel.
Subsequently, as recounted by the Commonwealth:
On January 18, 2019, [PCRA] counsel filed a “no merit”
[Turner/Finley1] letter…, along with a motion to withdraw as
counsel. The PCRA court filed notice of its intent to dismiss
[Appellant]’s petition pursuant to Pa.R.Crim.P. 907. After no
response was filed, the PCRA court dismissed the petition and
granted counsel’s withdrawal motion on February 22, 2019. No
appeal followed.
On December 3, 2019, [Appellant] filed a pro se second PCRA
petition, that is the subject of this appeal, in which he claimed to
have filed a responsive motion to PCRA counsel’s
[Turner/]Finley letter and a notice of appeal from the dismissal
of his first PCRA petition that the PCRA court and the clerk of
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1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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courts supposedly never acknowledged or accepted for filing.
Second PCRA Petition, 12/3/19, [at] 1-2. He also claimed that a
Pennsylvania Department of Corrections policy prevented him
from developing “a complete and supported” PCRA filing and
prevented him from assisting his prior counsel “with an
attachment of” his psychiatric records. Id. at 3. With respect to
those claims, he asserted the governmental interference
exception to the PCRA’s timeliness provision. Id. With respect
to the documents that he claimed were never accepted for filing,
he attached to his petition a “Motion to Deny Withdrawal of
Counsel,” with a proof of service dated February 14, 2019, and a
notice of appeal and a [Pa.R.A.P. 1925(b) concise] statement of
matters complained of on appeal, with a proof of service dated
March 20, 2019. Id. at Exhibits A-C.
On June 30, 2020, [Appellant] filed a request for discovery and
an amended PCRA petition reiterating his assertion that the clerk
of courts had never docketed a response to his former counsel’s
[Turner/]Finley letter and a notice of appeal, and requesting
reinstatement of his right to appeal from the dismissal of his first
PCRA petition. Amended Second PCRA Petition, 6/30/20, [at] 1-
2.
The PCRA court filed notice of its intent to dismiss the petition
pursuant to Pa.R.Crim.P. 907. The court found that [Appellant’s]
substantive claims of ineffective assistance and after-discovered
evidence did not satisfy any applicable exception to the PCRA’s
timeliness provision. Rule 907 Notice, 4/30/21. The notice did
not address [Appellant]’s assertion about the clerk of courts
supposedly not accepting his pro se PCRA filings concerning the
dismissal of his first PCRA petition. After no response was filed,
the PCRA court dismissed the petition on June 17, 2021.
Commonwealth’s Brief at 4-5 (citations reformatted; footnote omitted).
Appellant filed a timely notice of appeal from the dismissal of his
second PCRA petition, and the PCRA court did not order him to file a
statement pursuant to Rule 1925(b). The PCRA court issued its Rule
1925(a) opinion on August 16, 2021. Appellant now presents the following
questions for our review:
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I. Did the PCRA petition properly demonstrate governmental
interference?
II. Did the PCRA court err in treating the after-discovered
evidence as if they were after-discovered facts?
Appellant’s Brief at 4.
This Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the
timeliness of Appellant’s petition, because the PCRA time limitations
implicate our jurisdiction and may not be altered or disregarded to address
the merits of a petition. See Commonwealth v. Bennett, 930 A.2d 1264,
1267 (Pa. 2007). Under the PCRA, any petition for post-conviction relief,
including a second or subsequent one, must be filed within one year of the
date the judgment of sentence becomes final, unless one of the following
exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
(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
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(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. § 9545(b)(1)(i)-(iii). Additionally, any petition attempting to
invoke one of these exceptions must “be filed within one year of the date the
claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, as stated supra, our Supreme Court denied Appellant’s petition
for allowance of appeal from our decision affirming his judgment of sentence
on June 25, 2018. Appellant did not seek further review and, thus, his
judgment of sentence became final ninety days later, on September 23,
2018, upon expiration of the time to file a petition for writ of certiorari with
the United States Supreme Court. See 42 Pa.C.S. § 9545(b)(3);
U.S.Sup.Ct.R. 13. Consequently, Appellant’s present PCRA petition, his
second, filed in December of 2019, is facially untimely and, for this Court to
have jurisdiction to review the merits thereof, he must prove that he meets
one of the exceptions to the timeliness requirements set forth in 42 Pa.C.S.
§ 9545(b).
In his first claim, Appellant asserts that the untimeliness of the claims
in his second PCRA petition was excused by the applicability of the
government interference exception, arguing that his attempt to appeal from
the order dismissing his first PCRA petition was thwarted by the clerk of
courts. The second petition contains numerous claims regarding the alleged
ineffectiveness of both trial and PCRA counsel. See PCRA Court Opinion
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(“PCO”), 8/16/21, at 2 n.1 (summarizing these various claims). Most of
these claims were raised in Appellant’s first PCRA petition. The PCRA court
dismissed these claims as being untimely under the PCRA, with scant
analysis, and without having conducted an evidentiary hearing, relying
generally on the principles that ineffectiveness claims are subject to the
PCRA court’s time limits without exception, and that the government
interference exception cannot be satisfied by a claim that prior counsel
hindered the timely filing of a PCRA petition. Id. at 2.
However, Appellant argues that:
Although the PCRA court claimed Appellant was somehow
asserting that PCRA counsel was a government official, the
records belies that contention. Neither the original PCRA Petition
[n]or the Amended petition made such a claim. Appellant has
consistently made clear that the “clerk failed to docket the
Notice of Appeal,” [and] never has Appellant claimed PCRA
counsel was at fault. To hold otherwise is simply inaccurate.
Appellant’s Brief at 9.
As the Commonwealth dutifully concedes,
the PCRA court does not appear to have made any determination
as to whether or not [Appellant] had tried to file a notice of
appeal from the dismissal of his first PCRA petition and was
somehow thwarted from completing the filing of that notice due
to governmental interference. No such ruling can be gleaned
from the court’s Rule 907 dismissal notice or its opinion.
[Appellant] does not appear to have waived the claim by not
clearly identifying it in a statement pursuant to Pa.R.A.P.
1925(b), because the PCRA court never ordered [him] to file a
Rule 1925(b) statement. Nor can the Commonwealth conclude
that the claim was waived for lack of preservation because it was
included in [Appellant]’s petition[. See] Second PCRA Petition,
12/3/19, [at] 1-2[].
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Commonwealth’s Brief at 7-8. Thus, the Commonwealth concludes that,
“[g]iven the lack of any input … from the PCRA court, there is no
determination for this Court or the Commonwealth to evaluate” regarding
Appellant’s government interference claim, and “the Commonwealth does
not oppose a remand for the purpose of allowing the PCRA court to issue a
ruling” on Appellant’s claim that his attempt to file a notice of appeal from
the denial of his first PCRA petition was the product of government
interference. Id. at 8.
As further noted by the Commonwealth, Appellant attached to his
second PCRA petition evidence that he attempted to appeal from the
dismissal of his first, timely PCRA petition, in which these various
ineffectiveness claims were raised. Furthermore, most of the claims
Appellant attempts to raise in his second petition were initially raised in his
first petition, but were not thoroughly litigated due to his ostensible failure
to respond to the court’s Rule 907 that accepted PCRA counsel’s
Turner/Finley letter, and/or due to his failure to perfect an appeal from the
order dismissing his first petition. Because the PCRA court failed to conduct
a hearing to address the applicability of this exception based on the facts
alleged in Appellant’s second petition, we agree with the Commonwealth that
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we must remand this matter for the PCRA court to conduct an evidentiary
hearing to address this government interference claim in the first instance.2
In his next claim, Appellant asserts that the PCRA court erred by
addressing his after-discovered evidence issues3 as alleging a timeliness
exception under 42 Pa.C.S. § 9545(b)(1)(ii), instead of considering those
claims pursuant to 42 Pa.C.S. § 9543(a)(2)(vi) (providing for relief under
the PCRA due to the “unavailability at the time of trial of exculpatory
evidence that has subsequently become available and would have changed
the outcome of the trial if it had been introduced”). Appellant stresses that,
as with his ineffectiveness claims discussed above, his after-discovered
evidence claims in his current petition were the same as those raised initially
in his first PCRA petition. As such, Appellant asserts that he was relying on
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2 This Court has explained that, “[w]hen reviewing the denial of a PCRA
petition without an evidentiary hearing, we ‘determine whether the PCRA
court erred in concluding that there were no genuine issues of material fact
and in denying relief without an evidentiary hearing.’” Commonwealth v.
Hart, 199 A.3d 475, 481 (Pa. Super. 2018) (quoting Commonwealth v.
Burton, 121 A.3d 1063, 1067 (Pa. Super. 2015)). “[W]hen there are no
disputed factual issues, an evidentiary hearing is not required….” Id.(quoting Commonwealth v. Morris, 684 A.2d 1027, 1042 (Pa. 1996)).
Here, Appellant’s government interference claim necessitates an evidentiary
hearing, as Appellant proffered evidence in his current PCRA petition that he
attempted to appeal from the denial of his first PCRA petition.
3 Appellant contends that new evidence has emerged 1) that “his trial
counsel was convicted of money laundering[,]” and 2) that “another person
had confessed to the murder of which he was convicted.” Appellant’s Brief
at 11. In support of these assertions, Appellant proffered two newspaper
articles originally published in 2017.
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the government interference exception pursuant to Section 9545(b)(1)(i),
not the newly-discovered evidence exception set forth in Section
9545(b)(1)(ii), to excuse the facial untimeliness of his second PCRA petition
with respect to these claims.
The record confirms Appellant’s assertion that he first tried to raise
these claims during the litigation of his first, pro se PCRA petition. See
Appellant’s First Pro Se PCRA Petition, 12/12/17, at 3-4. Thus, if the
government interference exception does not apply to these claims in the
context of the current petition, Appellant necessarily waived them for
purposes of the current petition due to his failure to seek appellate review
from the denial of his first PCRA petition wherein he raised identical claims.
See 42 Pa.C.S. § 9544(b) (“For purposes of this subchapter, an issue 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.”). However, Appellant argues that his failure to fully litigate
these claims during his first PCRA petition was due to interference with his
attempt to appeal from the denial of his first PCRA petition, as discussed
above. Accordingly, we agree with Appellant that the PCRA court should
have addressed the timeliness of these after-discovered evidence claims
under the government interference exception set forth in Section
9545(b)(1)(i), not the newly-discovered evidence exception set forth in
Section 9545(b)(1)(ii).
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Nevertheless, the PCRA court provided an alternative analysis with
respect to these after-discovered evidence claims, which the court did not do
with respect to Appellant’s ineffectiveness claims. As such, we deem the
record is sufficiently developed for us to address them.
The PCRA court reasoned that,
[e]ven assuming that the amended petition was filed within one
year of [Appellant]’s discovering these articles, his claims would
nevertheless fail. Both allegations rely on newspaper articles
which do not articulate any basis for relief, nor demonstrate how
this information would be exculpatory. The allegations regarding
[Appellant]’s trial counsel are that he was convicted of conspiring
with his clients in money laundering and similar activities. This
fact does not provide a basis, nor does [Appellant] allege, that
counsel committed any wrong-doing in [Appellant]’s case.
This assertion is therefore not sufficient to substantiate
[Appellant]’s claim, nor demonstrate how counsel’s personal
legal jeopardy impacted the legal representation [Appellant]
received.
PCO at 3-4.
We agree with the PCRA court and conclude that Appellant is not
entitled to relief on this claim, as he failed to plead facts sufficient
demonstrate that the after-discovered evidence pertaining to his trial
counsel’s legal troubles had any nexus with his representation of Appellant in
this case. In reaching this conclusion, we find persuasive the
Commonwealth’s citation of Commonwealth v. King, 241 A.3d 396 (Pa.
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Super. 2020) (unpublished memorandum).4 That case involved a similar
claim concerning the very same attorney’s legal troubles, where King argued
the attorney was ineffective due to being “pre-occupied with extra-curricular
criminal activities,” which ostensibly led him to file a frivolous direct appeal
on King’s behalf. Commonwealth v. King, 1772/1773 EDA 2019,
unpublished memorandum at 4 (Pa. Super. filed Oct. 8, 2020). This Court
rejected that claim, reasoning that the attorney’s “criminal activities were
completely removed from” King’s case, and that King failed to “explain how
[counsel’s] unrelated criminal activities could have caused [him] to file a
frivolous direct appeal….” Id. at 8. Similarly, here, Appellant fails to
demonstrate how his trial attorney’s illegal conduct impacted his
representation of Appellant in this case.5 Accordingly, no relief is due on this
claim, even assuming Appellant could overcome the PCRA’s timeliness
requirements.
Next, Appellant asserts that he obtained after-discovered evidence
that someone else admitted to committing the crime for which he was
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4 See Pa.R.A.P. 126(b) (stating that non-precedential decisions of this Court,
filed after May 1, 2019, may be cited for their persuasive value).
5 Appellant’s bald assertion and cursory argument, without any supporting
caselaw, that counsel had represented him “while donning the cloak of
criminality,” is no different from King’s bald assertion that the same attorney
was preoccupied with his criminal activity. Appellant’s Brief at 12. In both
cases, the petitioners failed to show a nexus between the attorney’s illegal
conduct and the attorney’s own cases.
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convicted. Appellant argues that it “is difficult to imagine evidence more
exculpatory[.]” Appellant’s Brief at 12.
The PCRA court dismissed this claim, inter alia, because the article
proffered by Appellant did not substantiate it. We first note that the
evidence of Appellant’s guilt was extremely strong. At trial, the
Commonwealth proved that, while working as an exterminator at the
victim’s home, Appellant strangled the victim to death and then set fire to
her body. See Commonwealth v. Smith, 2994 EDA 2015, unpublished
memorandum at 1-2 (Pa. Super. filed Dec. 27, 2017). Corroborating video
evidence showed Appellant entering and leaving the victim’s home near the
time of the murder, and other evidence showed that he had an appointment
with the victim that day. Id. at 2-3. When first approached by police, and
before the officers said anything to him, “Appellant blurted out[,] ‘she was
alive when I left her[.]’” Id. at 3. Subsequently, Appellant confessed to
killing the victim. Id. at 4. Additionally, “[d]uring recorded phone
conversations from prison, Appellant joked with his girlfriend about
pretending to be intellectually impaired so that the jury would question the
validity of his confession to police.” Id. at 4-5.
The 2017 news article proffered by Appellant concerned admissions
made by Cosmo DiNardo, who had previously confessed to committing four
murders in Bucks County. In the article, DiNardo also purportedly claimed
to have killed two people in Philadelphia. An investigator stated that, with
respect to the alleged Philadelphia killings, all the police had to go on was a
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nickname in one case, and the claim that DiNardo had killed a woman in a
basement in the other. No other details were provided in the article.
The PCRA court rejected Appellant’s claim that this article contained
exculpatory evidence, finding that the article lacked “any reference to times,
dates, locations[,] or other details of this incident[,]” that could establish a
relationship to Appellant’s case and, therefore, that Appellant’s “argument …
that this alleged confession has the ‘hallmarks’ of the crime for which [he]
was convicted” was unsubstantiated. PCO at 4. The court concluded that
Appellant “fail[ed] to demonstrate any nexus whatsoever to his case, and his
reliance on this article f[ell] woefully short of the standard of proof needed
to substantiate any evidence which could be demonstrated to be
exculpatory.” Id.
We agree with the PCRA court. Even if Appellant could satisfy the
PCRA’s timeliness requirements with respect to this claim, he would not be
entitled to relief. Appellant has again failed to establish any nexus between
the new evidence and the crime for which he was convicted.6
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6 In his brief, Appellant asserted in quotation marks, but without citation,
that DiNardo had stated that Appellant “did not commit these crimes, I did.”
Appellant’s Brief at 12. No such statement is contained in the article cited
by Appellant, nor could we find any other evidence in the record supporting
this assertion. Furthermore, it is beyond absurd to infer such a statement
from the mere fact that DiNardo claimed to have killed a woman in a
basement in Philadelphia, absent any more details to establish a nexus to
Appellant’s case.
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In sum, with respect to Appellant’s after-discovered evidence claims
discussed above, we affirm the PCRA court’s order denying Appellant’s
second PCRA petition. With respect to all other claims raised therein, we
vacate that portion of the order, and remand for an evidentiary hearing to
consider Appellant’s claim that his attempt to appeal from the denial of his
first PCRA petition was thwarted by governmental interference.
Order affirmed in part, vacated in part. Case remanded.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/7/2022
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