J-S36019-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMES B. SMITH : : Appellant : No. 198 EDA 2023
Appeal from the PCRA Order Entered December 29, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0346561-1982
BEFORE: BOWES, J., NICHOLS, J., and KING, J.
MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 7, 2023
Appellant James B. Smith appeals pro se from the order dismissing his
third Post Conviction Relief Act1 (PCRA) petition as untimely. Appellant argues
that he met the governmental interference exception to the PCRA time bar
and raises multiple claims concerning his underlying conviction and sentence.
We affirm.
The underlying facts and procedural history of this matter are well
known to the parties. See Commonwealth v. Smith, 733 Philadelphia 1994
at 1-2 (Pa. Super. filed Nov. 16, 1995) (per curiam) (unpublished mem.).
Briefly, the trial court sentenced Appellant to a mandatory aggregate term of
life imprisonment without possibility of parole after the jury convicted him of
first-degree murder and related offenses in 1983. On appeal, this Court ____________________________________________
1 42 Pa.C.S. §§ 9541-9546. J-S36019-23
affirmed Appellant’s judgment of sentence and our Supreme Court denied
further review. See Commonwealth v. Smith, 3452 PHL 1983 (Pa. Super.
filed Mar. 15, 1985) (per curiam) (unpublished mem.), appeal denied, 439
E.D. Alloc. Dkt. 1985 (Pa. filed Mar. 10, 1986). Appellant subsequently filed
two PCRA petitions, both of which were ultimately denied. See
Commonwealth v. Smith, 03023 Philadelphia 1991 (Pa. Super. filed April
23, 1993) (per curiam) (unpublished mem.); Commonwealth v. Smith, 733
Philadelphia 1994 (Pa. Super. filed Nov. 16, 1995) (per curiam) (unpublished
mem.).
On December 3, 2016, Appellant filed a petition for writ of habeas
corpus, which the PCRA court properly treated as an untimely third PCRA
petition.2 Therein, Appellant raised multiple claims concerning trial counsel’s
ineffectiveness, due process violations, and challenges to both his conviction
and sentence.
On August 4, 2022, the PCRA court issued a Pa.R.Crim.P. 907 notice of
intent to dismiss Appellant’s petition without a hearing. The PCRA court issued
an order dismissing Appellant’s petition on December 29, 2022. Appellant
filed a timely pro se notice of appeal on January 12, 2023. The trial court did
not order Appellant to file a Pa.R.A.P. 1925(b) statement. The trial court ____________________________________________
2 We note that although labeled as a petition for writ of habeas corpus, Appellant raised claims that are cognizable under the PCRA. Therefore, the PCRA court properly treated Appellant’s habeas petition as a PCRA petition. See Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa. Super. 2013) (stating that unless the PCRA cannot provide a potential remedy, “the PCRA statute subsumes the writ of habeas corpus” (citations omitted)).
-2- J-S36019-23
issued a Rule 1925(a) opinion concluding that it did not have jurisdiction
because Appellant failed to invoke an exception to the PCRA’s jurisdictional
time bar.
On appeal, Appellant raises the following issues for our review:
1. Whether the PCRA court erred in dismissing PCRA (habeas) petition where [Appellant] due to COVID-19 protocols hampered [Appellant] from properly perfecting [Pa.R.Crim.P.] 907 opposition letter [or] memorandum to show how his claims of governmental interference denied [Appellant] right to raise his claims of actual innocence, cruel and unusual punishment, and the failure to disclose[?]
2. Assuming arguendo that no matter how inartfully [Appellant] raised issues of actual innocence under the language of an illegal sentence as it relates to cruel and unusual punishment[?]
3. Whether [the] trial court erred in failing to instruct the jury on eyewitness testimony and actual innocence as well as malice, intent, and conspiracy[?]
4. Whether the claim of actual innocence is cognizable under [42 Pa.C.S. §§] 9541-9546 and if so does such a claim meet the exceptions of [Section] 9545 since actual innocence can never be waived nor time-barred[?]
Appellant’s Brief at 2 (formatting altered).
Our review of the denial of PCRA relief is limited to “whether the record
supports the PCRA court’s determination and whether the PCRA court’s
decision is free of legal error.” Commonwealth v. Lawson, 90 A.3d 1, 4
(Pa. Super. 2014) (citations omitted).
“[T]he timeliness of a PCRA petition is a jurisdictional requisite.”
Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super. 2015) (citation
-3- J-S36019-23
omitted). A PCRA petition, “including a second or subsequent petition, shall
be filed within one year of the date the judgment becomes final,” unless the
petitioner pleads and proves one of three statutory exceptions. 42 Pa.C.S. §
9545(b)(1). A judgment of sentence becomes final for PCRA purposes “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 the review.” 42 Pa.C.S. § 9545(b)(3).
Courts may consider a PCRA petition filed more than one year after a
judgment of sentence becomes final if the petitioner pleads and proves one of
the following three statutory 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. § 9545(b)(1)(i)-(iii). Any petition invoking one of the exceptions
must be filed within one year of the date the claim could have been presented.
See 42 Pa.C.S. § 9545(b)(2).
It is the PCRA petitioner’s “burden to allege and prove that one of the
timeliness exceptions applies.” Commonwealth v. Albrecht, 994 A.2d
-4- J-S36019-23
1091, 1094 (Pa. 2010) (citations omitted and some formatting altered). If a
petition is untimely, and none of the timeliness exceptions are met, courts do
not have jurisdiction to address the substance of the underlying claims.
Commonwealth v. Cox, 146 A.3d 221, 227 (Pa. 2016).
Further, any “exceptions to the time bar must be pled in the PCRA
petition, and may not be raised for the first time on appeal.” Commonwealth
v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007) (citation omitted); see also
Pa.R.A.P. 302(a) (providing that issues not raised before the lower court are
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J-S36019-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMES B. SMITH : : Appellant : No. 198 EDA 2023
Appeal from the PCRA Order Entered December 29, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0346561-1982
BEFORE: BOWES, J., NICHOLS, J., and KING, J.
MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 7, 2023
Appellant James B. Smith appeals pro se from the order dismissing his
third Post Conviction Relief Act1 (PCRA) petition as untimely. Appellant argues
that he met the governmental interference exception to the PCRA time bar
and raises multiple claims concerning his underlying conviction and sentence.
We affirm.
The underlying facts and procedural history of this matter are well
known to the parties. See Commonwealth v. Smith, 733 Philadelphia 1994
at 1-2 (Pa. Super. filed Nov. 16, 1995) (per curiam) (unpublished mem.).
Briefly, the trial court sentenced Appellant to a mandatory aggregate term of
life imprisonment without possibility of parole after the jury convicted him of
first-degree murder and related offenses in 1983. On appeal, this Court ____________________________________________
1 42 Pa.C.S. §§ 9541-9546. J-S36019-23
affirmed Appellant’s judgment of sentence and our Supreme Court denied
further review. See Commonwealth v. Smith, 3452 PHL 1983 (Pa. Super.
filed Mar. 15, 1985) (per curiam) (unpublished mem.), appeal denied, 439
E.D. Alloc. Dkt. 1985 (Pa. filed Mar. 10, 1986). Appellant subsequently filed
two PCRA petitions, both of which were ultimately denied. See
Commonwealth v. Smith, 03023 Philadelphia 1991 (Pa. Super. filed April
23, 1993) (per curiam) (unpublished mem.); Commonwealth v. Smith, 733
Philadelphia 1994 (Pa. Super. filed Nov. 16, 1995) (per curiam) (unpublished
mem.).
On December 3, 2016, Appellant filed a petition for writ of habeas
corpus, which the PCRA court properly treated as an untimely third PCRA
petition.2 Therein, Appellant raised multiple claims concerning trial counsel’s
ineffectiveness, due process violations, and challenges to both his conviction
and sentence.
On August 4, 2022, the PCRA court issued a Pa.R.Crim.P. 907 notice of
intent to dismiss Appellant’s petition without a hearing. The PCRA court issued
an order dismissing Appellant’s petition on December 29, 2022. Appellant
filed a timely pro se notice of appeal on January 12, 2023. The trial court did
not order Appellant to file a Pa.R.A.P. 1925(b) statement. The trial court ____________________________________________
2 We note that although labeled as a petition for writ of habeas corpus, Appellant raised claims that are cognizable under the PCRA. Therefore, the PCRA court properly treated Appellant’s habeas petition as a PCRA petition. See Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa. Super. 2013) (stating that unless the PCRA cannot provide a potential remedy, “the PCRA statute subsumes the writ of habeas corpus” (citations omitted)).
-2- J-S36019-23
issued a Rule 1925(a) opinion concluding that it did not have jurisdiction
because Appellant failed to invoke an exception to the PCRA’s jurisdictional
time bar.
On appeal, Appellant raises the following issues for our review:
1. Whether the PCRA court erred in dismissing PCRA (habeas) petition where [Appellant] due to COVID-19 protocols hampered [Appellant] from properly perfecting [Pa.R.Crim.P.] 907 opposition letter [or] memorandum to show how his claims of governmental interference denied [Appellant] right to raise his claims of actual innocence, cruel and unusual punishment, and the failure to disclose[?]
2. Assuming arguendo that no matter how inartfully [Appellant] raised issues of actual innocence under the language of an illegal sentence as it relates to cruel and unusual punishment[?]
3. Whether [the] trial court erred in failing to instruct the jury on eyewitness testimony and actual innocence as well as malice, intent, and conspiracy[?]
4. Whether the claim of actual innocence is cognizable under [42 Pa.C.S. §§] 9541-9546 and if so does such a claim meet the exceptions of [Section] 9545 since actual innocence can never be waived nor time-barred[?]
Appellant’s Brief at 2 (formatting altered).
Our review of the denial of PCRA relief is limited to “whether the record
supports the PCRA court’s determination and whether the PCRA court’s
decision is free of legal error.” Commonwealth v. Lawson, 90 A.3d 1, 4
(Pa. Super. 2014) (citations omitted).
“[T]he timeliness of a PCRA petition is a jurisdictional requisite.”
Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super. 2015) (citation
-3- J-S36019-23
omitted). A PCRA petition, “including a second or subsequent petition, shall
be filed within one year of the date the judgment becomes final,” unless the
petitioner pleads and proves one of three statutory exceptions. 42 Pa.C.S. §
9545(b)(1). A judgment of sentence becomes final for PCRA purposes “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 the review.” 42 Pa.C.S. § 9545(b)(3).
Courts may consider a PCRA petition filed more than one year after a
judgment of sentence becomes final if the petitioner pleads and proves one of
the following three statutory 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. § 9545(b)(1)(i)-(iii). Any petition invoking one of the exceptions
must be filed within one year of the date the claim could have been presented.
See 42 Pa.C.S. § 9545(b)(2).
It is the PCRA petitioner’s “burden to allege and prove that one of the
timeliness exceptions applies.” Commonwealth v. Albrecht, 994 A.2d
-4- J-S36019-23
1091, 1094 (Pa. 2010) (citations omitted and some formatting altered). If a
petition is untimely, and none of the timeliness exceptions are met, courts do
not have jurisdiction to address the substance of the underlying claims.
Commonwealth v. Cox, 146 A.3d 221, 227 (Pa. 2016).
Further, any “exceptions to the time bar must be pled in the PCRA
petition, and may not be raised for the first time on appeal.” Commonwealth
v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007) (citation omitted); see also
Pa.R.A.P. 302(a) (providing that issues not raised before the lower court are
waived and cannot be raised for the first time on appeal).
Here, it is undisputed that Appellant’s instant petition is facially
untimely, as it was filed more than thirty years after his sentence became
final. See 42 Pa.C.S. § 9545(b)(1). In his brief, Appellant argues that he met
the government interference exception. Appellant’s Brief at 8. However, our
review of the record confirms that Appellant did not argue any timeliness
exception in his pro se PCRA petition. Therefore, Appellant waived his
argument that he satisfied an exception to the PCRA time bar. See Burton,
936 A.2d at 525; see also Pa.R.A.P. 302(a).
For these reasons, we conclude that Appellant’s petition is untimely and
that he failed to establish an exception to the PCRA time bar. See Albrecht,
994 A.2d at 1094; see also 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Accordingly, we
affirm.
Order affirmed. Jurisdiction relinquished.
-5- J-S36019-23
Date: 11/7/2023
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