J -S34003-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
ANTHONY DUANE SMITH
Appellant : No. 671 WDA 2018
Appeal from the PCRA Order April 9, 2018 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0016177-1999
BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS*, J.
MEMORANDUM BY DUBOW, J.: FILED AUGUST 13, 2019
Appellant, Anthony Duane Smith, appeals from the April 9, 2018 Order
dismissing as untimely his fourth Petition filed pursuant to the Post Conviction
Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.
On February 26, 2001, following a bench trial, the court convicted
Appellant of First -Degree Murder' and sentenced him to life imprisonment
without parole. This Court affirmed the judgment of sentence on May 7, 2004,
and our Supreme Court denied Smith's petition for allowance of appeal on
October 12, 2004. Commonwealth v. Smith, 855 A.2d 137 (Pa. Super.
2004) (unpublished memorandum), appeal denied, 860 A.2d 123 (Pa. 2004).
Appellant did not seek review with the United States Supreme Court. His
' 18 Pa.C.S. § 2502(a).
Retired Senior Judge assigned to the Superior Court. J -S34003-19
Judgment of Sentence, therefore, became final on January 10, 2005. 42
Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.R. 13.
Appellant subsequently filed three unsuccessful PCRA Petitions. On June
9, 2017, Appellant filed the instant counseled PCRA Petition, his fourth. In
this Petition, Appellant asserted, inter alia, that he is entitled to relief based
on newly discovered evidence: (1) an affidavit from Christopher Williams,
which states that his son, Darius Williams, admitted to murdering the victim;
and (2) an affidavit from witness, John Balistrieri, Sr., presenting additional
alibi information that he did not testify to at trial. Petition for Relief under the
Post -Conviction Relief Act ("PCRA Petition"), filed 6/9/17, at 2-5
(unpaginated).
On March 1, 2018, the PCRA court issued a Notice pursuant to
Pa.R.Crim.P. 907, advising Appellant of its intent to dismiss his Petition
without a hearing. Appellant filed a timely Response. On April 9, 2018, after
considering Appellant's Response, the PCRA court dismissed Appellant's
Petition as untimely.
Appellant timely appealed. Both Appellant and the PCRA court complied
with Pa.R.A.P. 1925.
Appellant raises the following issues on appeal:
1. Did the PCRA Court err by dismissing [Appellant's] petition as untimely filed?
2. Did the PCRA Court err by dismissing [Appellant's] claims for relief without a hearing?
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3. Should the case be remanded due to second PCRA counsel's failure to file a timely PCRA petition?
Appellant's Br. at 7.
We review the denial of a PCRA Petition to determine whether the record
supports the PCRA court's findings and whether its order is otherwise free of
legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This
Court grants great deference to the findings of the PCRA court if they are
supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.
Super. 2007). We give no such deference, however, to the court's legal
conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.
2012).
Before addressing the merits of Appellant's claims, we must first
determine whether we have jurisdiction to entertain this PCRA
Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)
(explaining that the timeliness of a PCRA petition is a jurisdictional requisite).
The PCRA's timeliness requirements are jurisdictional in nature, and neither
this Court nor the PCRA court have the authority to address the merits of the
issues raised if the appellant did not timely file the PCRA
petition. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
Under the PCRA, any petition "including a second or subsequent petition,
shall be filed within one year of the date the judgment becomes final[.]" 42 Pa.C.S. § 9545(b)(1). A Judgment of Sentence becomes final "at the
conclusion of direct review, including discretionary review in the Supreme
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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. § 9545(b)(3).
Pennsylvania courts may consider an untimely PCRA petition, however,
if the appellant pleads and proves one of the three exceptions set forth in 42
Pa.C.S. § 9545(b)(1). Although not specifically stated, Appellant's arguments
implicate the exception provided by subsection 9545(b)(1)(ii), the "newly
discovered facts exception." This timeliness exception requires the PCRA
petitioner to plead and prove that: (1) the facts upon which the claim was
predicated were unknown; and (2) the facts could not have been ascertained
by the exercise of due diligence. 42 Pa.C.S. § 9545(b)(1)(ii);
Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007). Additionally,
an appellant who invokes an exception must file his claim within 60 days of
the date the claim could have been presented.2 Commonwealth v. Lark, 746
A.2d 585, 588 (Pa. 2000).
When there is an outstanding appeal on a prior PCRA petition, a
subsequent PCRA petition cannot be filed until the resolution of review of the
pending PCRA petition. Id. Thus, the subsequent petition must be filed within
60 days of the date of the order which finally resolves the previous PCRA
2 See 42 Pa.C.S § 9545(b)(2). Effective December 24, 2018, Section 9545(b)(2) now provides that, for claims arising on December 24, 2017, or after, "[a]ny petition invoking an exception shall be filed within one year . . .
of the date the claim could have been presented." - 4 - J -S34003-19
petition-the first date the claim could have been presented. Id. (citing 42 Pa.C.S. § 9545(b)(2)).
As stated above, Appellant's Judgment of Sentence became final on
January 10, 2005. Thus, to be timely, Appellant needed to file his PCRA
Petition by January 10, 2006. Appellant's fourth PCRA Petition, filed on June
9, 2017, more than twelve years after his Judgment of Sentence became final,
is facially untimely.
Appellant avers that newly discovered facts render this Petition
reviewable. First, he asserts that Balistrieri, a witness who testified at
Appellant's trial, would have provided additional testimony to support an alibi
defense if he had been properly questioned. Appellant's Br. at 16-17.
This claim does not meet the newly discovered facts exception.
Balistrieri's willingness to provide information that he could have provided at
the time of trial does not present a newly discovered fact. Rather, he is a
known source who wants to supplement his prior testimony.
Free access — add to your briefcase to read the full text and ask questions with AI
J -S34003-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
ANTHONY DUANE SMITH
Appellant : No. 671 WDA 2018
Appeal from the PCRA Order April 9, 2018 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0016177-1999
BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS*, J.
MEMORANDUM BY DUBOW, J.: FILED AUGUST 13, 2019
Appellant, Anthony Duane Smith, appeals from the April 9, 2018 Order
dismissing as untimely his fourth Petition filed pursuant to the Post Conviction
Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.
On February 26, 2001, following a bench trial, the court convicted
Appellant of First -Degree Murder' and sentenced him to life imprisonment
without parole. This Court affirmed the judgment of sentence on May 7, 2004,
and our Supreme Court denied Smith's petition for allowance of appeal on
October 12, 2004. Commonwealth v. Smith, 855 A.2d 137 (Pa. Super.
2004) (unpublished memorandum), appeal denied, 860 A.2d 123 (Pa. 2004).
Appellant did not seek review with the United States Supreme Court. His
' 18 Pa.C.S. § 2502(a).
Retired Senior Judge assigned to the Superior Court. J -S34003-19
Judgment of Sentence, therefore, became final on January 10, 2005. 42
Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.R. 13.
Appellant subsequently filed three unsuccessful PCRA Petitions. On June
9, 2017, Appellant filed the instant counseled PCRA Petition, his fourth. In
this Petition, Appellant asserted, inter alia, that he is entitled to relief based
on newly discovered evidence: (1) an affidavit from Christopher Williams,
which states that his son, Darius Williams, admitted to murdering the victim;
and (2) an affidavit from witness, John Balistrieri, Sr., presenting additional
alibi information that he did not testify to at trial. Petition for Relief under the
Post -Conviction Relief Act ("PCRA Petition"), filed 6/9/17, at 2-5
(unpaginated).
On March 1, 2018, the PCRA court issued a Notice pursuant to
Pa.R.Crim.P. 907, advising Appellant of its intent to dismiss his Petition
without a hearing. Appellant filed a timely Response. On April 9, 2018, after
considering Appellant's Response, the PCRA court dismissed Appellant's
Petition as untimely.
Appellant timely appealed. Both Appellant and the PCRA court complied
with Pa.R.A.P. 1925.
Appellant raises the following issues on appeal:
1. Did the PCRA Court err by dismissing [Appellant's] petition as untimely filed?
2. Did the PCRA Court err by dismissing [Appellant's] claims for relief without a hearing?
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3. Should the case be remanded due to second PCRA counsel's failure to file a timely PCRA petition?
Appellant's Br. at 7.
We review the denial of a PCRA Petition to determine whether the record
supports the PCRA court's findings and whether its order is otherwise free of
legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This
Court grants great deference to the findings of the PCRA court if they are
supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.
Super. 2007). We give no such deference, however, to the court's legal
conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.
2012).
Before addressing the merits of Appellant's claims, we must first
determine whether we have jurisdiction to entertain this PCRA
Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)
(explaining that the timeliness of a PCRA petition is a jurisdictional requisite).
The PCRA's timeliness requirements are jurisdictional in nature, and neither
this Court nor the PCRA court have the authority to address the merits of the
issues raised if the appellant did not timely file the PCRA
petition. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
Under the PCRA, any petition "including a second or subsequent petition,
shall be filed within one year of the date the judgment becomes final[.]" 42 Pa.C.S. § 9545(b)(1). A Judgment of Sentence becomes final "at the
conclusion of direct review, including discretionary review in the Supreme
- 3 - J -S34003-19
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. § 9545(b)(3).
Pennsylvania courts may consider an untimely PCRA petition, however,
if the appellant pleads and proves one of the three exceptions set forth in 42
Pa.C.S. § 9545(b)(1). Although not specifically stated, Appellant's arguments
implicate the exception provided by subsection 9545(b)(1)(ii), the "newly
discovered facts exception." This timeliness exception requires the PCRA
petitioner to plead and prove that: (1) the facts upon which the claim was
predicated were unknown; and (2) the facts could not have been ascertained
by the exercise of due diligence. 42 Pa.C.S. § 9545(b)(1)(ii);
Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007). Additionally,
an appellant who invokes an exception must file his claim within 60 days of
the date the claim could have been presented.2 Commonwealth v. Lark, 746
A.2d 585, 588 (Pa. 2000).
When there is an outstanding appeal on a prior PCRA petition, a
subsequent PCRA petition cannot be filed until the resolution of review of the
pending PCRA petition. Id. Thus, the subsequent petition must be filed within
60 days of the date of the order which finally resolves the previous PCRA
2 See 42 Pa.C.S § 9545(b)(2). Effective December 24, 2018, Section 9545(b)(2) now provides that, for claims arising on December 24, 2017, or after, "[a]ny petition invoking an exception shall be filed within one year . . .
of the date the claim could have been presented." - 4 - J -S34003-19
petition-the first date the claim could have been presented. Id. (citing 42 Pa.C.S. § 9545(b)(2)).
As stated above, Appellant's Judgment of Sentence became final on
January 10, 2005. Thus, to be timely, Appellant needed to file his PCRA
Petition by January 10, 2006. Appellant's fourth PCRA Petition, filed on June
9, 2017, more than twelve years after his Judgment of Sentence became final,
is facially untimely.
Appellant avers that newly discovered facts render this Petition
reviewable. First, he asserts that Balistrieri, a witness who testified at
Appellant's trial, would have provided additional testimony to support an alibi
defense if he had been properly questioned. Appellant's Br. at 16-17.
This claim does not meet the newly discovered facts exception.
Balistrieri's willingness to provide information that he could have provided at
the time of trial does not present a newly discovered fact. Rather, he is a
known source who wants to supplement his prior testimony. Thus, the facts
were not unknown and could have been ascertained by the exercise of
diligence. See, e.g., Commonwealth v. Johnson, 863 A.2d 423, 427 (Pa.
2004) (concluding that information contained in an affidavit from a trial
witness did not meet newly discovered facts exception because the exception
focuses on newly discovered facts, not on a newly willing source for previously
known facts); Commonwealth v. Brown, 111 A.3d 171, 178 (Pa. Super.
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2015) (concluding witness's willingness to come forward and elaborate on his
trial testimony did not meet the newly discovered facts exception)
Appellant also claims as a newly discovered fact that he recently learned
that Christopher Williams' son, Darius, admitted to killing the victim.
Appellant's Br. at 16. However, he has not explained how and when he learned
of these details. Consequently, Appellant has not pleaded and proved that he
could not have ascertained this information by the exercise of due diligence.
See 42 Pa.C.S. § 9545(b)(1)(ii); Bennett, supra at 1272; see e.g.,
Commonwealth v. Holmes, 905 A.2d 507, 510-11 (Pa. Super. 2006)
(concluding that the appellant did not sustain his burden of pleading and
proving the newly discovered evidence exception because the affidavit in
which the witness attested that someone else murdered the victim did not
disclose when the witness first informed the appellant of this information).
Appellant also argues that the newly discovered facts exception applies
because his second PCRA counsel provided ineffective assistance by failing to
file his second PCRA petition timely. Appellant's Br. at 18. However, he
concedes that he has raised this issue for the first time on appeal. Id. at 7.
Because Appellant failed to raise this claim below, it is waived.
See Pa.R.Crim.P. 902(B) (stating that that failure to state each ground relied
upon in support of the requested relief in the PCRA petition "shall preclude the
defendant from raising that ground in any proceeding for post -conviction
collateral relief"); Pa.R.A.P. 302(a) ("Issues not raised in the lower court
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are waived and cannot be raised for the first time on appeal");
Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007)
("exceptions to the time bar must be pled in the PCRA petition, and may not
be raised for the first time on appeal").
We conclude that Appellant has not pleaded and proved the applicability
of any of the PCRA's timeliness exceptions and, therefore, we are without
jurisdiction to consider the merits of this appeal. The PCRA court properly
dismissed Appellant's PCRA Petition as untimely, and its Order is free of legal
error.3
Order affirmed.
Judge Colins joins the memorandum.
Judge McLaughlin concurs in result.
3 Additionally, Appellant's claim that the PCRA court violated Pa.R.Crim.P. 905(B) and 907 by not explaining the reason behind its intent to dismiss without a hearing and by not ordering an amended petition so he could correct any defects is meritless. Appellant's Br. at 13. The record shows that after the PCRA court reviewed Appellant's Petition and the Commonwealth's Answer, the court complied with Rule 907 by giving notice to Appellant of its "intention to dismiss the [] matter without a hearing as [the] Petition [was] barred by the one (1) year statute of limitations." Notice of Intention to Dismiss Pursuant to Pa.R.Crim.P. 907, filed 3/1/18. See Pa.R.Crim.P. 907 (stating that if the PCRA court finds no relief is due based on its review of the petition and record, "the judge shall give notice to the parties of the intention to dismiss the petition and shall state in the notice the reasons for the dismissal"). Further, the court was not required to order an amended petition pursuant to Rule 905(b) because the Petition was not defective. See Pa.R.Crim.P. 905, cmt. (defining "defective" as "inadequate, insufficient, or irregular").
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Judgment Entered.
J seph D. Prothonotary Seletyn,r Es
Date: 8/13/2019
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