Com. v. Smith, J.

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. J-S04007-22

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 Super. 2017) (unpublished memorandum), allocatur denied,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 ____________________________________________

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

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

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

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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