Commonwealth v. Smith

194 A.3d 126
CourtSuperior Court of Pennsylvania
DecidedJuly 20, 2018
Docket1751 EDA 2017
StatusPublished
Cited by90 cases

This text of 194 A.3d 126 (Commonwealth v. Smith) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Smith, 194 A.3d 126 (Pa. Ct. App. 2018).

Opinion

OPINION BY BENDER, P.J.E.:

Appellant, Keith Smith, appeals from the order dismissing, as untimely, his petition filed pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541 - 9546. After careful review, we affirm.

On September 25, 2001, [Appellant] was convicted by a jury of first-degree murder, [ 18 Pa.C.S. § 2502(a),] possessing an instrument of crime, [ 18 Pa.C.S. § 907,] and recklessly endangering another person, [ 18 Pa.C.S. § 2705 ]. In our memorandum affirming [Appellant]'s judgment of sentence, we summarized the pertinent facts underlying these convictions as follows:
[O]n October 15, 1999, at approximately 3:30 p.m., the victim Clifton Walker was shot at the intersection of 34th and Mt. Vernon Streets, Philadelphia. At the time of the shooting, the victim was with a group of friends and acquaintances, including Commonwealth witnesses Huey Hewitt and Kirk Dunson. The shooter stood in the intersection and fired at least eight shots, hitting the victim from the rear three times. Two of the shots entered the victim's buttocks; the fatal bullet entered at the shoulder blade, severed the aorta, exited and hit the *129 victim's chin and exited a second time. The police obtained statements from the two above-named witnesses on the evening of the incident in which each of them identified [Appellant] as the shooter. At a later time, each of the witnesses recanted their identifications of [Appellant] and attributed their inculpatory statements to police misconduct, i.e. , withholding of medical treatment of Hewitt and physical abuse of Dunson. At trial, neither witness identified [Appellant] as the shooter. The Commonwealth was permitted to utilize their prior inconsistent statements as substantive evidence of [Appellant]'s guilt.
Commonwealth v. Smith , No. 554 EDA 2002, [unpublished memorandum] at 1-2 (Pa. Super. [filed] May 6, 2003). On September 26, 2001, [Appellant] was sentenced to life imprisonment. On May 6, 2003, we affirmed the judgment of sentence. Id. at 1, 6. The Pennsylvania Supreme Court denied [Appellant]'s petition for allowance of appeal. Commonwealth v. Smith , 575 Pa. 696 , 836 A.2d 122 ( [Pa.] 2003) [ ].
On June 24, 2004, [Appellant] filed his first PCRA petition. Following the appointment of counsel and the filing of an amended petition, the PCRA court dismissed the petition without a hearing. On June 5, 2007, we affirmed the denial. Commonwealth v. Smith , No. 1399 EDA 2006, [unpublished memorandum] at 7 (Pa. Super. [filed] June 5, 2007). On March 14, 2008, the Pennsylvania Supreme Court denied [Appellant]'s petition for allowance of appeal. Commonwealth v. Smith , 596 Pa. 730 , 945 A.2d 170 ( [Pa.] 2008) [ ].
On December 9, 2009, [Appellant] filed a second pro se PCRA petition, which the PCRA court dismissed as untimely on August 20, 2010. On November 30, 2011, we also found the petition to be untimely, and affirmed the PCRA court's dismissal order. Commonwealth v. Smith , No. 2552 EDA 2010, [unpublished memorandum] at 1, 7 (Pa. Super. [filed] Nov. 30, 2011). On June 20, 2012, the Pennsylvania Supreme Court denied [Appellant]'s petition for allowance of appeal. Commonwealth v. Smith , 616 Pa. 637 , 47 A.3d 847 ( [Pa.] 2012) [ ].
[Appellant] filed his third and fourth PCRA petitions on March 27, 2012 and August 15, 2012, respectively. The PCRA court dismissed both petitions as untimely on February 12, 2013. On February 11, 2013, [Appellant] filed his fifth PCRA petition.... On April 5, 2013, the PCRA court entered an order dismissing Smith's fifth petition.

Commonwealth v. Smith , No. 1264 EDA 2013, unpublished memorandum at 1-3 (Pa. Super. filed February 28, 2014). This Court affirmed the denial of Appellant's fifth PCRA petition as untimely on February 28, 2014. Id. at 10. Our Supreme Court denied his petition for allowance of appeal on October 7, 2014. Commonwealth v. Smith , --- Pa. ----, 97 A.3d 817 (2014).

The matter sub judice arose as follows:

The instant [PCRA] petition was filed on October 14, 2014, followed by several amended petitions dated February 20, 2015, March 9, 2015, December 4, 2015 and a PCRA petition styled as a writ of habeas corpus on January 4, 2017. Pursuant to Pa.R.Crim.P. 907, th[e PCRA] court sent a notice of intent to dismiss the petition as untimely without exception on March 22, 2017. In response to th[e] court's 907 notice, [Appellant] filed another petition on April 6, 2017. Th[e PCRA] court formally dismissed the petition on May 8, 2017. [Appellant] timely filed a notice of appeal to the Pennsylvania Superior Court on May 23, 2017.

*130 PCRA Court Opinion ("PCO"), 7/25/17, at 2 (footnote omitted).

Appellant now presents the following questions for our review, which we set forth verbatim :

1. Whether the PCRA Court erred in denying [appellant's] Post-Conviction Petition as untimely when {appellant] did established that Government officials interfered with the presentation of the claim, failure to turn over impeachment and exculpatory evidence {David Jefferson's] statement that was given to detectives was in violation of Brady within the plain language of the timeliness exception set forth at 42 Pa C.S.A 9545 (b) (1) (i) (iii) and {after - discovered facts claim} section 9545 (b) (1) (ii), and filing claim within sixty days (60) satisfying 9545 (b) (2)?
2. Whether {appellant} is entitled to a new trial or remand for an evidentiary hearing based upon the affidavit of {David Jefferson's} admitting that he gave a statement to detectives on 10/15/1999 that he was with {Clift Walker} the victim in this case prior to the shooting and stated within affidavit {Clift Walker} had words with males from North-Philly, was impeachment evidence and exculpatory to the argument of the witnesses out-of court statements that was admitted at trial, which {after-discovered fact} was provided to {appellant} by way of affidavit by {David Jefferson} sent to {appellant} by mail?

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Bluebook (online)
194 A.3d 126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-smith-pasuperct-2018.