Com. v. Smith, R.

J-S88041-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RICHARD SMITH, :
:
Appellant : No. 815 EDA 2016
Appeal from the PCRA Order February 8, 2016
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003531-2009
BEFORE: OLSON, RANSOM, and STRASSBURGER*, JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 10, 2017
Richard Smith (Appellant) appeals from the order entered on February
8, 2016, which denied his petition filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
As this Court explained, previously,
The facts giving rise to the charges herein involved Appellant
and numerous other individuals who, from June 2004 through
May 2008, engaged in the fraudulent transfer of real property.
Participants in the criminal enterprise forged documents that
purported to allow the holders of those documents to enter
vacant houses. The documents could cost the holders anywhere
from $100 to $1,000. The individuals then could select and
“purchase” a home at various amounts and would be issued a
notarized transfer deed, which could be recorded. Unfortunately
for the victims, the deeds were fake and the properties’ lawful
owners did not authorize any of the sales. [Appellant’s trial was
joined with that of two-co-defendants; however, because he
absconded after the jury was selected, Appellant was tried in
absentia. Twelve other coconspirators pled guilty.]
*Retired Senior Judge assigned to the Superior Court.
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Commonwealth v. Quiles, 48 A.3d 468 (Pa. Super. 2012) (unpublished
memorandum at 1-2) (footnote omitted).
The PCRA court summarized the relevant background underlying this
matter as follows.
On February 12, 2010, [Appellant] was found guilty after a
jury trial, presided over by Honorable Rose Marie DeFino-
Nastasi, of corrupt organizations, 18 Pa.C.S. § 911, [graded] as
a felony of the first degree; forty-two (42) counts of theft by
deception, 18 Pa.C.S. § 3922, each [graded] as a felony of the
third degree; criminal conspiracy, 18 Pa.C.S. § 903, [graded] as
a felony of the third degree; twenty-three (23) counts of forgery,
18 Pa.C.S. § 4101, each [graded] as a felony of the third
degree; and twenty-six (26) counts of tampering with public
records, 18 Pa.C.S. § 4911, each [graded] as a felony of the
third degree.
On April 30, 2010, [Appellant] was sentenced to ten (10)
to twenty (20) years for the corrupt organizations conviction;
seven (7) years [of] probation for each count of theft by
deception, to run concurrently to each other and consecutive to
the corrupt organizations conviction; seven (7) years [of]
probation for the conspiracy conviction, to run consecutively;
[and] no further penalty for the forgery and tampering with
public records convictions. [Appellant] received an aggregate
sentence of ten (10) to twenty (20) years plus fourteen (14)
years [of] probation.
[Appellant] did not appeal. The judgment of sentence
became final on May 30, 2010.
On July 31, 2014, privately retained counsel, Cheryl
Sturm, Esq., filed a petition under the Post[-]Conviction Relief
Act (PCRA).
On August 8, 2014, Attorney Sturm filed a supplemental
petition.
On November 16, 2014, Attorney Sturm filed a
memorandum of law.
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On December 12, 2014, Attorney Sturm filed a Motion to
Impose Sentence in Open Court, which was denied without a
hearing on January 20, 2015.
On August 26, 2015, the Commonwealth filed a motion to
dismiss.
On September 24, 2015, Attorney Sturm filed a response
to the Commonwealth’s motion.
On January 6, 2016, the [c]ourt issued a [Pa.R.Crim.P.]
907 notice [indicating its intention to dismiss Appellant’s petition
without a hearing].
On January 26, 2016, Attorney Sturm filed a response to
the 907 notice.
On February 8, 2016, the [c]ourt formally dismissed
[Appellant’s] PCRA petition.
On February 16, 2016, [Appellant] filed the instant appeal
to the Superior Court.
PCRA Court Opinion, 4/12/2016, at 1-2 (unnecessary capitalization
omitted).1
In his brief to this Court, Appellant raises two issues for our review.
I. Whether the PCRA court has jurisdiction to impose a sentence
that is void ab initio and whether it has inherent jurisdiction to
correct a patently illegal sentence?
II. Whether a PCRA court erred when it ruled the PCRA petition
untimely where [Appellant] discovered new evidence in the
public record establishing the conviction was obtained based on
the perjured testimony of a crucial witness which is a species of
Brady[2] violation and the PCRA petition was filed within 60 days
1
Both Appellant and the trial court complied with the mandates of Pa.R.A.P.
1925.
2
Brady v. Maryland, 373 U.S. 83 (1963).
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of the date the vital facts were discovered with the exercise of
due diligence?
Appellant’s Brief at 1-2 (unnecessary capitalization omitted).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the court’s rulings are supported by the evidence of
record and free of legal error. Commonwealth v. Anderson, 995 A.2d
1184, 1189 (Pa. Super. 2010). Under the PCRA, all petitions must be filed
within one year of the date that the petitioner’s judgment became final,
unless one of three statutory exceptions applies. 42 Pa.C.S. § 9545(b)(1);
Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006). For purposes
of the PCRA, a judgment becomes final at the conclusion of direct review.
42 Pa.C.S. § 9545(b)(3).
Appellant was sentenced on April 30, 2010 and had 30 days to file a
direct appeal with this Court. Pa.R.A.P. 903(a). He did not do so. Thus, for
purposes of the PCRA, Appellant’s judgment of sentence became final on
May 30, 2010, when the time for filing a direct appeal expired. He therefore
had until May 30, 2011, in order to file timely a PCRA petition. 42 Pa.C.S.
§ 9545(b)(1).
Because Appellant untimely filed his PCRA petition in July of 2014, he
had the burden of pleading and offering to prove one of the following
exceptions:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
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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. § 9545(b)(1). Moreover, “[a]ny petition invoking an exception
provided in [42 Pa.C.S. § 9545(b)(1)] shall be filed within 60 days of the
date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).
With respect to his first issue, Appellant does not invoke a timeliness
exception. Instead, he claims that his challenge to the restitution order
implicates the legality of sentence and argues that, because such claims are
not subject to waiver, the issue should have been addressed by the PCRA
court. Appellant’s Brief at 8-12.
The mandates of the PCRA are clear. “The PCRA’s timeliness
requirements are jurisdictional; therefore, a court may not address the
merits of the issues raised if the petition was not timely filed. The timeliness
requirements apply to all PCRA petitions, regardless of the nature of the
individual claims raised therein.” Commonwealth v. Jones, 54 A.3d 14, 17
(Pa. 2012) (citations omitted). As our Supreme Court has indicated with
regard to a legality of sentencing claim specifically, “[a]lthough [the] legality
of [a] sentence is always subject to review within the PCRA, [legality of
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sentencing] claims must still first satisfy the PCRA’s time limits or one of the
exceptions thereto.” Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.
1999). Accordingly, Appellant’s first claim fails.
In his second issue, Appellant claims that a key witness at trial
committed perjury, which Appellant only learned of after he received copies
of his trial transcripts.3 Appellant’s Brief at 7, 13-21. Appellant couches this
issue as a Brady claim and claims he presented this claim within 60 days of
discovery, in satisfaction of both the the governmental interference and
newly-discovered evidence exceptions to the PCRA time-bar. Id. at 14-15.
The PCRA Court addressed these assertions as follows.
A Brady claim challenges the Commonwealth’s failure to
produce material evidence. To prevail on a Brady claim, the
petitioner must show that the evidence was suppressed by the
prosecution, either willfully or inadvertently; the evidence was
favorable to the petitioner, either because it is exculpatory or
because it impeaches; and prejudice ensued. [Commonwealth]
v. Nero, 58 A.3d 802, 809 (Pa. Super. 2012) (citing
[Commonwealth] v. Busanet, 54 A.3d 35, 48 (Pa. 2012)). The
burden rests with the petitioner to “prove, by reference to the
record, that evidence was withheld or suppressed by the
prosecution.” [Commonwealth] v. Haskins, 60 A.3d 538, 547
(Pa. Super. 2012) (citing [Commonwealth] v. Paddy, 15 A.3d
431, 451 (Pa. 2011)). There is no Brady violation when the
petitioner knew or, with reasonable diligence, could have
uncovered the evidence in question, or when the evidence was
available to the defense from nongovernmental sources.
[Commonwealth] v. Chamberlain, 30 A.3d 381, 409-410 (Pa.
2011) (citations omitted)[].
3
As noted above, Appellant absconded and was tried in absentia with two of
his co-defendants. Thus, he was not present at trial to hear the allegedly
perjured testimony, although his court-appointed attorney, Richard Hark,
Esquire, was.
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Although a Brady violation may fall within the
governmental interference exception, the merits of a Brady
claim need not be addressed until it is established that the
instant petition was timely filed. [Commonwealth] v.
Williams, 105 A.3d 1234, 1240 (Pa. 2014). In order to meet
the statutory requirements of the “governmental interference”
exception to the PCRA’s one year jurisdictional time-bar, the
petitioner must plead and prove that the failure to previously
raise these claims was the result of interference by government
officials, and that the information could not have been obtained
earlier with the exercise of due diligence. [Commonwealth] v.
Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008);
[Commonwealth] v. Hawkins, 953 A.2d 1248, 1253 (Pa.
2006) (citation omitted).
Veronica Smith testified at [Appellant’s] trial on January
20, 2010. [Appellant] claims that Ms. Smith’s testimony was
perjured and that he was unaware of her testimony because he
absconded from trial and did not know who testified against him
until he obtained the trial transcripts, sometime after he was
taken into custody on August 13, 2011. After reading the
transcripts, he then called his girlfriend, Alma Cook, to find out
why her niece, Ms. Smith, testified against him at trial.
[Appellant] alleges that during that conversation, Ms. Cook told
him that Ms. Smith was not an heir of Elizabeth Allen as she had
testified. He claims that an investigator searched the public
record on July 7, 2014, and confirmed this.
This is not a case of governmental interference.
[Appellant] is unable to demonstrate that the government
prevented him from raising this claim. Clearly [Appellant] could
have obtained the trial transcript—a court, and not a
Commonwealth document, long before the instant petition was
filed. Furthermore, even before he chose to absent himself from
trial, he had complete discovery. [Appellant] and his attorney
were provided with a witness list prior to him absconding post
jury selection, a list that included Ms. Smith, [Appellant’s] ex-
girlfriend’s niece. The only interference in this matter came from
[Appellant’s] failure to be present for his trial and sentencing,
and his failure to perfect an appeal. [Appellant] cannot now
claim interference or ignorance regarding a witness called at trial
who[m] he knew about.
Nor is this a case of newly-discovered evidence.
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Under section 9545(b)(1)(ii), a petitioner must plead and
prove that “the facts upon which the claim is predicated were
unknown to [him] and could not have been ascertained by the
exercise of due diligence[.]” 42 Pa.C.S. § 9545(b)(1)(ii);
[Commonwealth] v. Brown, 111 A.3d 171, 176 (Pa. Super.),
app. denied, 125 A.3d 1197 (Pa. 2015). Due diligence demands
that the petitioner take reasonable steps to protect his own
interests. Brown, 111 A.3d at 176 (citing [Commonwealth] v.
Carr, 768 A.2d 1164, 1168 (Pa. Super. 2001)). A petitioner
must explain why he could not have learned the new facts earlier
with the exercise of due diligence. Id. (citations omitted).
Additionally, the focus of this exception “is on the newly
discovered facts, not on a newly discovered or newly willing
source for previously known facts.” Id (quoting
[Commonwealth] v. Marshall, 947 A.2d 714, 720 (Pa. 2008)).
The Pennsylvania Superior Court recently clarified the
distinction between a newly-discovered evidence exception
under the PCRA and an after-discovered evidence claim:
The timeliness exception set forth at Section
9545(b)(1)(ii) has often mistakenly been referred to
as the “after-discovered evidence” exception. This
shorthand reference was a misnomer, since the plain
language of subsection (b)(1)(ii) does not require
the petitioner to allege and prove a claim of “after-
discovered evidence.” Rather, as an initial
jurisdictional threshold, Section 9545(b)(1)(ii)
requires a petitioner to allege and prove that there
were facts unknown to him and that he exercised
due diligence in discovering those facts. Once
jurisdiction is established, a PCRA petitioner can
present a substantive after-discovered evidence
claim. Thus, the “new facts” exception at Section
9545(b)(1)(ii) does not require any merits analysis
of an underlying after-discovered-evidence claim.
Brown, 111 A.3d at 176 -77 (quotation marks and citations
omitted). “[D]ue 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. Burton, 121 A.3d 1063, 1071 (Pa. Super.
2015).
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To obtain relief on a substantive after-discovered-evidence
claim under the PCRA, a petitioner must demonstrate: (1) the
evidence has been discovered after trial and it could not have
been obtained at or prior to trial through reasonable diligence;
(2) the evidence is not cumulative; (3) it is not being used solely
to impeach credibility; and (4) it would likely compel a different
verdict. Brown, 111 A.3d at 178 (citing [Commonwealth] v.
Washington, 927 A.2d 586 (Pa. 2007)). The substantive
merits-based analysis is more stringent than the analysis
required by the “new facts” exception to establish jurisdiction.
Id. A petitioner who fails to question or investigate an obvious,
available source of information, cannot later claim evidence from
that source constitutes newly discovered evidence.
[Commonwealth] v. Padillas, 997 A.2d 356, 363-64 (Pa.
Super. 2010).
A petitioner who absented himself from trial after jury
selection cannot reasonably claim that a witness’s testimony at
that trial is newly-discovered. [Appellant] makes no attempt to
explain why the information that he allegedly learned after
reading the transcripts from his own trial and speaking to his ex-
girlfriend, Alma Cook, and his private investigator could not, with
the exercise of due diligence, have been obtained much earlier.
[Appellant’s] claim is jurisdictionally barred under the PCRA.
Therefore, the [c]ourt need not consider its merits.
PCRA Court Opinion, 4/12/2016, at 6-9 (some citations omitted).
We find no error in the court’s analysis and conclude that Appellant
has failed to establish the applicability of a timeliness exception. Thus, the
PCRA court properly dismissed the petition for lack of jurisdiction.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2017
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