Com. v. Smith, S.

• Court: Superior Court of Pennsylvania
• Decided: August 11, 2021
• Docket: 80 MDA 2021
• Status: Unpublished

Opinion

J-A16027-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : STEWART C. SMITH : : Appellant : No. 80 MDA 2021

Appeal from the PCRA Order Entered December 31, 2020 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0003032-2013

BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY McCAFFERY, J.: FILED: AUGUST 11, 2021

Stewart C. Smith (Appellant) appeals pro se from the order entered in

the Dauphin County Court of Common Pleas dismissing his serial petition filed

pursuant to the Post Conviction Relief Act1 (PCRA). Appellant seeks collateral

relief from his jury convictions of sexual assault, indecent assault, and simple

assault,2 for an April 2013 assault of his then girlfriend. On appeal, Appellant

argues he adequately pled an exception to the PCRA time bar, the PCRA court

erred in dismissing his petition without a hearing because prior counsel

rendered ineffective assistance, and the PCRA court should have recused. For

the following reasons, we affirm. ____________________________________________

* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.

2 18 Pa.C.S. §§ 3124.1, 3126(a)(1), 2701(a)(1), respectively. J-A16027-21

In the early morning hours of April 26, 2013, Appellant bit and sexually

assaulted the victim in their shared bedroom after she refused to have sex

with him. Trial Ct. Op., 10/27/16, at 5-6. Appellant was charged with rape,

sexual assault, two counts of indecent assault, and simple assault. 3 On April

24, 2014, Appellant proceeded to a jury trial, during which he was represented

by Autumn Walden, Esquire. On April 25, 2014, the jury found Appellant guilty

of sexual assault, one count of indecent assault, and simple assault, and not

guilty of rape and the remaining count of indecent assault. On July 29, 2014,

Appellant was sentenced to seven to 14 years’ incarceration for sexual assault,

and concurrent terms of two years’ probation on the other counts.

Appellant filed a timely pro se notice of appeal, which he later

discontinued on November 20, 2014. On December 15, 2014, Appellant filed

a timely pro se PCRA petition. Jennifer Tobias, Esquire, was appointed to

represent him, and filed an amended petition on March 30, 2015. Appellant

subsequently filed a petition to proceed pro se. After a May 19, 2015,

Grazier4 hearing, Attorney Tobias was permitted to withdraw, and the PCRA

court appointed new counsel, Bryan DePowell, Esquire. Appellant again

requested permission to proceed pro se and Attorney DePowell was permitted

to withdraw following a second Grazier hearing. ____________________________________________

3 18 Pa.C.S. §§ 3121(a)(1); 3126(a)(2).

4 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (holding that a hearing

is required to determine if defendant’s waiver of right to counsel at appellate stage is knowing, intelligent and voluntary).

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On November 23, 2015, with permission of the PCRA court, Appellant

filed a pro se amended petition, followed by a pro se supplemental brief on

December 21, 2015. On April 18, 2016, the PCRA court granted relief on one

claim — that the 14-year maximum sentence imposed for Appellant’s

conviction of sexual assault was an illegal sentence5 — and filed a notice of

dismissal pursuant to Pa.R.Crim.P. 907 for Appellant’s remaining claims. On

May 10, 2016, the court resentenced Appellant on his conviction for sexual

assault to a term of 4 1/2 to 10 years’ incarceration, and ordered the other

sentences to remain the same. On May 12, 2016, the PCRA court entered a

final order denying relief on Appellant’s remaining claims.

Appellant filed a timely pro se notice of appeal both from his May 10,

2016, judgment of sentence, and from the May 12, 2016, order denying PCRA

relief. The PCRA court appointed Christopher Wilson, Esquire, to represent

Appellant in both matters. This Court affirmed Appellant’s judgment of

sentence on August 18, 2017, and affirmed the order denying PCRA relief on

September 7, 2017. Commonwealth v. Smith, 977 MDA 2016 (unpub.

memo.) (Pa. Super. Aug. 18, 2017); Commonwealth v. Smith, 1127 MDA

2016 (unpub. memo.) (Pa. Super. Sept. 7, 2017), appeal denied, 813 MAL

2017 (Pa. 2018). Appellant filed a petition for allowance of appeal with our

____________________________________________

5 The crime of sexual assault is a second-degree felony. See 18 Pa.C.S. § 3124.1. Thus, the maximum sentence the court could impose is 10 years’ imprisonment. See 18 Pa.C.S. § 1103(2).

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Supreme Court from the PCRA appeal, which was denied on April 30, 2018.

See 813 MAL 2017.

Thereafter, on August 17, 2018, represented by Joseph Sembrot,

Esquire, Appellant filed a second PCRA petition. Attorney Sembrot filed a

petition to withdraw after accepting a position with the Commonwealth. The

PCRA court granted Attorney Sembrot’s petition and appointed Shannon

Sprow, Esquire, as PCRA counsel. Attorney Sprow subsequently petitioned to

withdraw and filed a Turner/Finley6 “no merit” letter. On June 12, 2019, the

PCRA court granted Attorney Sprow’s petition to withdraw and issued a Rule

907 notice of intent to dismiss Appellant’s petition. Appellant did not file a

response, and, on August 5, 2016, the PCRA court dismissed Appellant’s

second petition. No appeal was filed.

Appellant filed the present PCRA petition, his third, pro se on September

5, 2019, followed by a pro se supplemental petition on October 23, 2019. On

that same day, the PCRA court appointed Wendy Grella, Esquire, to represent

Appellant in the PCRA proceedings. Attorney Grella subsequently filed a

Turner/Finley “no merit” letter and petition to withdraw. On July 9, 2020,

the PCRA court granted counsel’s petition to withdraw and issued a Rule 907

notice of its intent to dismiss Appellant’s petition without first conducting an

evidentiary hearing. Appellant filed a response to the court’s Rule 907 notice

6 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998); Commonwealth v.

Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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on July 24, 2020, followed by a supplemental PCRA petition on October 22,

2020.7 On December 31, 2020, the PCRA court entered an order dismissing

Appellant’s third petition as untimely filed. Appellant filed this timely pro se

notice of appeal.8

Appellant raises the following issues on appeal:

1. Whether the PCRA [c]ourt erred by concluding Appellant failed to plead any of the exceptions to the timeliness requirement thereby dismissing [his] PCRA as untimely?

2. Whether the PCRA [c]ourt exhibits a pattern of bias abusing [its] discretionary power to thwart Appellant’s ability to bring constitutional claims before the court for review by not ordering an evidentiary hearing concerning second PCRA counsel’s untimely and omitted manifest injustice or assert any exceptions to time-bar [PCRA] petition that was filed [sic]?

3. Whether the PCRA [c]ourt abused [its] discretion by not ordering an evidentiary hearing concerning resentencing attorney’s strategy of filing impermissible issues on appeal?

4. Whether the PCRA [c]ourt abused [its] discretion by not ordering an evidentiary hearing concerning PCRA attorney’s strategy of failing to seek to amend pro se 1925(b) statements, abandoning preserved issues in favor of causing waiver, manifest injustice and an unreasonable application of [the ineffectiveness] analysis while on appeal, reconsideration and petition for allowance of appeal [sic]?

5. Whether the PCRA [c]ourt abused [its] discretion by not restoring Appellant’s resentencing and [PCRA] appeal rights?

7 On October 16, 2020, Appellant requested permission to file the supplemental petition. The record does not include an order granting Appellant permission to do so.

8 Although the PCRA court did not order him to do so, Appellant filed Pa.R.A.P.

1925(b) statement of errors complained of on appeal on January 25, 2021.

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6. Whether the PCRA [c]ourt abused [its] discretion by denying recusal request and immediately after, without jurisdiction as the both [c]ourt and ADA were aware and kept secret, resentenced Appellant to maximum sentence [sic].

7. Whether [t]he PCRA [c]ourt abused [its] discretion by denying [a]n evidentiary hearing concerning trial counsel’s strategy of withholding video interview of complainant from her client failing to utilize it at trial allowing [the] Commonwealth to present false impression of facts, even perjury, lack of hue and cry and police to coach and provide answers to say in court [sic]?

Appellant’s Brief at 3.

Furthermore, Appellant was granted permission by this Court to file a

supplemental brief,9 which raises one additional claim:

1. Whether Appellant’s due process [rights] were violated by the PCRA [c]ourt bias, partiality which so undermined the truth determining process that it rendered Appellant’s initial [PCRA] proceeding a structural defect, fundamentally unfair and unconstitutional [sic]?

Appellant’s Supplemental Brief at 6.

Preliminarily, we note Appellant’s arguments are not separated in

sections corresponding to each of his eight issues raised on appeal and,

throughout his argument, Appellant’s claims overlap. See Pa.R.A.P. 2119(a)

(“The argument shall be divided into as many parts as there are questions to

be argued.”). Thus, we will combine and address his claims as he does in his

brief.

First, Appellant argues the PCRA court erred in determining he did not

plead or prove any timeliness exception to the PCRA. Appellant’s Brief at 17.

9 See Order, 5/13/21.

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Rather, he alleges that, in his third PCRA petition, he pled both the

governmental interference and newly discovered facts exceptions under 42

Pa.C.S. §§ 9545(b)(i) and (ii). Id. First, he maintains the manifest injustice

he suffered at the hands of the court— “the judicial branch of government” —

qualifies as government interference pursuant to Section 9545(b)(1)(i). Id.

at 20. He argues Attorney Wilson (direct appeal and first PCRA counsel)

“abandoned preserved issues” and was “ineffective per se” when he filed a

Rule 1925(b) statement raising issues for the first time on appeal. Id. at 19.

Moreover, he claims that this Court incorrectly applied the ineffectiveness

standard, and the law relating to waiver and previously litigated issues. Id.

Appellant insists “[r]einstatement of [a]ppellate rights nunc pro tunc is the

remedy approved by the Supreme Court, [t]he Third Circuit[,]” and

Pennsylvania’s appellate courts. Id. at 20.

With regard to the newly discovered facts exception, Appellant insists

he is entitled to relief as a result of the ineffective assistance of Attorney

Sembrot — who filed his second PCRA petition. Appellant explains Attorney

Sembrot “had until June 30, 2018 to file [Appellant’s] second [PCRA],” which

was 60 days after the Pennsylvania Supreme Court denied his petition for

allocatur. Appellant’s Brief at 17. However, Attorney Sembrot did not file the

petition until “August 17, 2018, one and a half months past the deadline and

omitted any [timeliness] exception,” causing the petition to be dismissed as

untimely. Id. Relying upon Commonwealth v. Peterson, 192 A.3d 1123

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(Pa. 2018), Appellant contends this late filing “constitutes per se

ineffectiveness[.]”10 Id. at 17-18.

Appellant also argues he suffered a “miscarriage of justice” when

Attorney Walden (trial counsel) withheld a video recorded interview of the

complainant, which Appellant maintains would have “shifted” his defense.

Appellant’s Brief at 20. Appellant notes that “all counsel of record [throughout

his appeals and PCRA petitions] would not even talk about the video

[interview].” Id. at 21. Appellant further claims Attorney Walden’s

“strategy,” of permitting the Commonwealth to present “false impression[s]

of facts” and failing “to request proper jury instructions,” entitles him to an

evidentiary hearing. Id. at 23.

Appellant then argues the PCRA court should have recused from this

case and was without jurisdiction to resentence him. See Appellant’s Brief at

22. Appellant maintains “the trial court exhibited many instances warranting

recusal[,]” including inter alia “permit[ting] attorney misconduct in her

presence,” not allowing Appellant opportunity to view the “video [interview]

of complainant[,]” and “violating the [Pennsylvania] Wire Tap Act[.]” Id.

Appellant insists “[m]ore examples can be found if the record were seriously

scrutinized.” Id. at 23.

10 Although Appellant does not explain when he learned his second PCRA petition was untimely filed, he filed his third PCRA petition on September 5, 2019.

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Finally, in the sole claim raised in his supplemental brief, Appellant

references arguments made in his initial brief, outlined above, including the

PCRA court’s alleged error in not granting an evidentiary hearing on his claims

of ineffectiveness of counsel and alleged attorney misconduct. Id. at 7-9.

Appellant further states this Court “improperly” ruled on his resentencing and

PCRA appeals. Id. at 8-9. We conclude no relief is due.

The standard by which we review PCRA petitions is well settled:

Our standard of review in a PCRA appeal requires us to determine whether the PCRA court’s findings of fact are supported by the record, and whether its conclusions of law are free from legal error. The scope of our review is limited to the findings of the PCRA court and the evidence of record, which we view in the light most favorable to the party who prevailed before that court.

Commonwealth v. Small, 238 A.3d 1267, 1280 (Pa. 2020) (citations

omitted). Moreover:

[T]he right to an evidentiary hearing on a post-conviction petition is not absolute. It is within the PCRA court’s discretion to decline to hold a hearing if the petitioner's claim is patently frivolous and has no support either in the record or other evidence. It is the responsibility of the reviewing court on appeal to examine each issue raised in the PCRA petition in light of the record certified before it in order to determine if the PCRA court erred in its determination that there were no genuine issues of material fact in controversy and in denying relief without conducting an evidentiary hearing.

Commonwealth v. Grayson, 212 A.3d 1047, 1054 (Pa. Super. 2019).

Preliminarily, we must address the timeliness of Appellant’s petition:

Crucial to the determination of any PCRA appeal is the timeliness of the underlying petition. The timeliness requirement for PCRA petitions “is mandatory and jurisdictional in nature.”

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A PCRA petition is timely if it is “filed within one year of the date the judgment [of sentence] becomes final.” 42 Pa.C.S. [ ] § 9545(b)(1). “[A] judgment becomes final 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).

Commonwealth v. Montgomery, 181 A.3d 359, 365 (Pa. Super. 2018)

(some citations omitted). We may reach the merits of an untimely PCRA

petition only if the petitioner pleads and proves one of the three exceptions

set forth at Section 9545(b)(1). 42 Pa.C.S. § 9545(b)(1)(i)-(iii);

Montgomery, 181 A.3d at 365-66.

Any petition, 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

(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.

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42 Pa.C.S. § 9545(b)(1)(i)-(iii). When invoking a timeliness exception, a

petitioner must raise the exception either within 60 days or one year of the

date the claim could have been raised.11 See 42 Pa.C.S. § 9545(b)(2).

In the instant case, Appellant’s judgment of sentence became final on

November 20, 2014, when he voluntarily discontinued his appeal. 12 See

Commonwealth v. Conway, 706 A.2d 1243, 1244 (Pa. Super. 1997)

(judgment of sentence becomes final upon an appellant’s request to

discontinue an appeal). Appellant had one year from that date, or until

November 20, 2015, to file a timely PCRA petition. He filed the present PCRA

petition on September 5, 2019, approximately four years thereafter.

11 Until 2018, Section 9545(b)(2) required a petitioner to invoke a timeliness

exception within 60 days. However, in 2018, the time period was extended to one year. 42 Pa.C.S. § 9545(b)(2); Act of October 24, 2018, P.L. 894, No. 146, § 2. The Act amending Section 9545(b)(2) provides that the one-year period applies only to timeliness exception claims arising on or after December 24, 2017. Act of October 24, 2018, P.L. 894, No. 146, § 3. Because most of Appellant’s claims arose prior to December 2017, the 60-day period, rather than the one-year period, applies. However, Appellant’s claim that second PCRA counsel, Attorney Sembrot, was ineffective arose after December 2017, and thus, the one-year period applies to that claim only.

12 Although Appellant was granted resentencing relief pursuant to his first PCRA petition, and resentenced on May 10, 2016, this did not “reset the clock” for the finality of his judgment of sentence for PCRA purposes. See Commonwealth v. McKeever, 947 A.2d 782, 785 (Pa. Super. 2008) (“[A] successful first PCRA petition does not ‘reset the clock’ for the calculation of the finality of the judgment of sentence for purposes of the PCRA where the relief granted in the first petition neither restored a petitioner’s direct appeal rights nor disturbed his conviction, but, rather, affected his sentence only.”).

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Thus, Appellant’s present petition is facially untimely and must meet one

of the above exceptions. Appellant claims that he did plead and prove two

exceptions to the PCRA time bar. Upon our review of Appellant’s third PCRA

petition and supplemental petition, we conclude Appellant only adequately

pled a timeliness exception regarding the purported ineffectiveness of

Attorney Sembrot.13 Thus, any timeliness arguments concerning his

remaining claims are waived.14 See Commonwealth v. Williams, 899 A.2d

1060, 1066 n.5 (Pa. 2006) (issues not raised in a PCRA petition are waived

and cannot be considered for first time on appeal); Derrickson 923 A.2d at

468-69 (Pa. Super 2007) (failure to plead a timeliness exception in a PCRA

petition renders the issue waived).

13 Throughout his brief, Appellant references a police video interview with the

victim. He seems to imply his belated receipt of this video meets the newly discovered facts timeliness exception. See Appellant’s Brief at 19-21. However, he did not raise this claim in any of his petitions. Thus, it is waived. See Commonwealth v. Derrickson 923 A.2d 466, 468-69 (Pa. Super. 2007). Furthermore, while Appellant claims “trial counsel withheld” the video from him until after his trial, he does not provide the date he “received a transcribed version” of the interview; although he implies the latest date he could have received it was in May of 2016. See id. at 12, 21. Thus, any claim that the video interview qualifies as a newly discovered fact should have been raised within 60 days of Appellant’s discovery of that evidence, or no later than July 8, 2016. See 42 Pa.C.S. § 9545(b)(2); Act of October 24, 2018, P.L. 894, No. 146, §§ 3, 4.

14 In reviewing Appellant’sthird PCRA petition and supplemental filings, we note he does not invoke the governmental interference exception with regard to any of his claims.

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As noted supra, Appellant preserved a timeliness exception with regard

to one claim — Attorney Sembrot’s purported ineffectiveness per se.

Appellant argues Attorney Sembrot filed Appellant’s second petition late

without raising any timeliness exceptions, causing it to be dismissed as

untimely. Relying upon Peterson, Appellant insists this is ineffectiveness per

se, which qualifies as a “new fact” under 42 Pa.C.S.A. § 9545(b)(1)(ii). We

conclude his reliance on Peterson is misplaced.

Generally, “counsel's ineffectiveness may not be invoked as a newly-

discovered ‘fact’ for purposes of invoking the subsection 9545(b)(1)(ii)

exception.” Peterson, 192 A.3d at 1129. However, the Pennsylvania

Supreme Court created an exception to this general rule in Peterson. In that

case, PCRA counsel filed a first PCRA petition one day after the one-year time-

period allotted by the statute. Id. at 1125. Although the PCRA court denied

the petition on the merits, this Court quashed the subsequent appeal, holding

the petition was untimely filed. Id. at 1126. Peterson filed a second PCRA

petition raising an ineffectiveness claim and the PCRA court ultimately found

he was not aware of the filing deadline or that counsel had filed a late petition

until receiving a Superior Court order informing him. Id. at 1126-27. The

PCRA court ruled his second PCRA petition was timely filed. Id. at 1127.

Our Supreme Court ultimately granted Peterson relief. Peterson, 192

A.3d at 1127, 1132. The Court held an “untimely filing of [a petitioner’s] first

PCRA petition constitute[s] ineffectiveness per se, as it completely foreclose[s

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the petitioner] from obtaining review of the collateral claims set forth in his

first PCRA petition.” Id. at 1132.

Appellant’s case is distinguishable from Peterson because Appellant

was not “completely foreclosed [ ] from obtaining review of the collateral

claims set forth in his first PCRA petition.” Peterson, 192 A.3d at 1132

(emphasis added). Appellant did, in fact, obtain collateral review of his first

petition, and was granted partial relief. Thus, the fact that his second

petition, filed by Attorney Sembrot, was dismissed as untimely does not

constitute ineffectiveness per se under Peterson. Attorney Sembrot’s failure

to plead any of the timeliness exceptions in Appellant’s second petition did not

“completely foreclose” all collateral review. Id. Accordingly, Appellant is

entitled to no relief.

For the reasons above, the PCRA court did not err in denying Appellant’s

request for an evidentiary hearing because there were “no genuine issues of

material fact in controversy.” See Grayson, 212 A.3d at 1054. Although

Appellant adequately pled a timeliness exception with regard to one claim, as

explained supra, Attorney Sembrot’s actions did not constitute ineffectiveness

per se and cannot qualify as a newly discovered fact. See Peterson, 192

A.3d at 1132. Accordingly, no relief is due.

The only other issue which merits discussion is Appellant’s claim that

the PCRA court should have recused. See Appellant’s Brief at 23. Appellant

did not raise this claim in his PCRA petition, but rather, raised it for the first

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time in his July 24, 2020, response to the PCRA court’s Rule 907 notice. Thus,

it is waived.15 Williams, 899 A.2d at 1066 n.5.

As discussed supra, Appellant’s remaining claims are facially untimely

and he did not plead any exceptions to the PCRA time bar. Thus, we do not

address these claims on their merits and no relief is due. See 42 Pa.C.S. §

9545(b)(2); Montgomery, 181 A.3d at 365.

Order affirmed.

15 We note, too, Appellant’s belated basis for seeking the PCRA court’s recusal

is the court’s purported appointment of counsel “who take no interest in [their] client” and “sabotage[ ] the case causing more harm[.]” Appellant’s Reply to Court Granting Counsel Withdraw & Rule 907 Notice of Intent to Dismiss PCRA, 7/24/20. Thus, he appears to question the PCRA court’s grant of appointed counsel’s petitions to withdraw. What he fails to acknowledge, however, is that he is not entitled to the appointment of counsel for any post-conviction filing except his first. See Pa.R.Crim.P. 904(C); Commonwealth v. Kubis, 808 A.2d 196, 200 (Pa. Super. 2002) (“[T]he Pennsylvania Rules of Criminal Procedure provide that the PCRA court shall appoint an attorney to represent a petitioner during his first PCRA petition when he demonstrates that he is ‘unable to afford or otherwise procure counsel.’”).

Moreover, we note that Appellant previously filed a motion seeking recusal of the same PCRA court (which presided over his jury trial and resentencing) in April of 2016. See Appellant’s Motion for Recusal & Change of Venue, 4/20/16. The court denied the motion at Appellant’s resentencing hearing. See N.T., 5/10/16, at 5. To the extent Appellant relies on the same bases for seeking the court’s recusal presently, this claim is previously litigated. See 42 Pa.C.S. § 9543(a)(3).

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 08/11/2021

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