J-S65036-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY TUSWEET SMITH,
Appellant No. 322 WDA 2016
Appeal from the PCRA Order February 2, 2016
in the Court of Common Pleas of Beaver County
Criminal Division at Nos.: CP-04-CR-0000967-2001;
CP-04-CR-0000147-2005
CP-04-CR-0001148-2005
CP-04-CR-0001151-2005
BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED: SEPTEMBER 12, 2016
Appellant, Anthony Tusweet Smith, appeals pro se from the order
dismissing his fourth petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.
The PCRA court summarized the relevant background of this case as
follows:
On March [1]5, 2002, following a jury trial, [Appellant] was
convicted of aggravated assault and criminal attempt to commit
homicide. On April 17, 2002, [Appellant] was sentenced to 120
to 240 months of incarceration. The judgment of sentence was
affirmed by the Superior Court of Pennsylvania on February 3,
2004. [Appellant] filed a timely petition for allowance of appeal
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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to the Supreme Court of Pennsylvania, which was denied on July
1, 2004. [Appellant] did not seek review by the Supreme Court
of the United States.
[Appellant] filed his first, counseled, PCRA petition on
September 20, 2005. Following a hearing, the PCRA [petition]
was denied on November 5, 2007, and [Appellant] did not
appeal. [Appellant] filed a second, pro se PCRA petition on June
3, 2008. The petition was dismissed on September 22, 2008.
He filed a third [pro se] PCRA petition o[n] August 28, 2013. His
third PCRA petition was found to be untimely, and the [c]ourt
therefore denied the petition. The Superior Court affirmed the
order denying the petition. A [p]etition for [a]llowance of
[a]ppeal filed with the Pennsylvania Supreme Court was denied
on December 30, 2014.
(PCRA Court Opinion, 1/14/16, at 1-2).
On November 23, 2015, Appellant filed the instant pro se PCRA
petition, claiming that Pennsylvania Attorney General Kathleen Kane
improperly failed to disclose certain exculpatory records to him. (See id. at
1; PCRA Petition, 11/23/15, at 1-5). On January 14, 2016, the PCRA court
entered an opinion and order, serving as notice of its intent to dismiss the
petition as untimely without a hearing. See Pa.R.Crim.P. 907(1). On
February 2, 2016, Appellant filed a pro se response, and on that same date,
the PCRA court entered its order dismissing the petition. This timely appeal
followed.1
Appellant raises the following questions for our review:
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1
Pursuant to the PCRA court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on March 14, 2016. The court
entered an opinion on March 17, 2016. See Pa.R.A.P. 1925.
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I. Whether the conduct of the Attorney General influenced
the non[-]disclosure of exculpatory PSP [(Pennsylvania
State Police)] property records of incident [numbers] D4-
0947377 INV# 4321PP, D4-0960800 INV# D4-4321PP and
Commonwealth Exhibit No. 37, where being charged with
crimes of crimen falsi reflects that deceit is a tactic utilized
to the benefit of the Attorney General’s litigation in
violation of the Pennsylvania Rules of Professional
Conduct, the Constitution(s) of Pennsylvania and the
United States?
II. Whether title 42 [Pa.]C.S.[A.] § 9545[](a)(b)(1)(i) &
(2) recognizes the subpoena of exculpatory PSP property
records that have not been disclosed by the Attorney
General’s office after multiple requests have been made?
III. Whether the PCRA court abused its discretion in
refusing to excuse itself from [this] case in concert with
Code of Judicial Conduct 2.11(A)(6)(b), where as district
magistrate in case [sic] a false affidavit was presented to
the district magistrate and the trust or relationship
involved with the presentation involved with the
presentation [sic] of the complaint allowed the false
affidavit to proceed into criminal court?
IV. Whether [] Appellant is entitled to a hearing for the
purpose of testimony from Appellant and trial counsel to
substantiate the fact that partial PSP-PRI’s ([Property
Record of Incident)] were provided to trial counsel that
propelled the presentation of evidence from case other
than Appellant’s?
(Appellant’s Brief, at 4 (some capitalization omitted)); see id. at 7
(explaining “PSP”/“PRI” references).2
____________________________________________
2
We note that Appellant’s pro se brief fails to conform to our Rules of
Appellate Procedure. Significantly, the argument section is meandering,
unfocused, and lacks pertinent legal discussion, in violation of Rule 2119.
See Pa.R.A.P. 2119(a)-(c). Although this Court is willing to construe pro se
materials liberally, pro se litigants must comply with procedural rules. See
Commonwealth v. Lyons, 833 A.2d 245, 251-52 (Pa. Super. 2003),
(Footnote Continued Next Page)
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We begin by addressing the timeliness of Appellant’s instant PCRA
petition.
Crucial to the determination of any PCRA appeal is the timeliness
of the underlying petition. Thus, we must first determine
whether the instant PCRA petition was timely filed. The
timeliness requirement for PCRA petitions is mandatory and
jurisdictional in nature, and the court may not ignore it in order
to reach the merits of the petition. The question of whether a
petition is timely raises a question of law. Where the petitioner
raises questions of law, our standard of review is de novo and
our scope of review plenary.
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.A. §
9545(b)(1). “[A] judgment [of sentence] 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.A. § 9545(b)(3). . . .
Commonwealth v. Brown, 2016 WL 1178378, at *4-5 (Pa. Super. filed
Mar. 24, 2016) (case citations and some quotation marks omitted).
Here, Appellant’s judgment of sentence became final on September
29, 2004, ninety days after our Supreme Court denied allowance of appeal.
See U.S. Sup. Ct. R. 13. Appellant therefore had until September 29, 2005,
to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). He filed the
_______________________
(Footnote Continued)
appeal denied, 879 A.2d 782 (Pa. 2005). This Court could dismiss this
appeal in light of the substantial briefing defects. See Pa.R.A.P. 2101.
However, in the interest of judicial economy, we will address Appellant’s
claims pertinent to our disposition to the extent we are able to discern them.
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present petition, his fourth, on November 23, 2015. Thus, it was patently
untimely.
A court may consider an untimely PCRA petition if one of the following
three exceptions applies:
(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.A. § 9545(b)(1)(i–iii); see Brown, supra at *5. If an exception
applies, a petitioner must file the PCRA petition “within 60 days of the date
the claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2). “[Our
Supreme] Court has repeatedly stated it is the appellant’s burden to allege
and prove that one of the timeliness exceptions applies.” Commonwealth
v. Hawkins, 953 A.2d 1248, 1253 (Pa. 2008) (citation omitted).
Additionally, it is well-settled that “a PCRA petitioner is not
automatically entitled to an evidentiary hearing.” Commonwealth v.
Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation omitted). “It is within
the PCRA court’s discretion to decline to hold a hearing if the petitioner’s
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claim is patently frivolous and has no support either in the record or other
evidence.” Id. (citation omitted).
Instantly, Appellant argues the applicability of the governmental
interference exception. (See Appellant’s Brief, at 4, 14-15); 42 Pa.C.S.A. §
9545(b)(1)(i). This provision requires a petitioner to plead and prove that
the failure to raise the claim previously was the result of interference by
government officials, and that the interference violates the United States or
Pennsylvania Constitution or laws. See Commonwealth v. Abu–Jamal,
941 A.2d 1263, 1268 (Pa. 2008), cert. denied, 555 U.S. 916 (2008);
Commonwealth v. Albrecht, 994 A.2d 1091, 1095 (Pa. 2010).
However, Appellant fails to explain coherently how government
officials interfered with his ability to raise his substantive PCRA claims
challenging his conviction or sentence. Instead, he lodges a series of
accusations personally attacking the “character” of the former Pennsylvania
Attorney General, who was not even in office at the time he was convicted.
(See Appellant’s Brief, at 11 (arguing “[t]he character of the PA Attorney
General shows that deceit is a tactic utilized to the benefit of the PA Attorney
General’s litigation.”)). Appellant baldly concludes that the fact that criminal
charges unrelated to the instant case have been brought against the
Attorney General “show[s] that it is possible[] that the evidence presented
at [his] trial is being concealed by the partial disclosure of exculpatory PSP-
PRI’s.” (Id. at 11-12) (emphasis added). After review, we conclude that
Appellant has failed to meet his burden of pleading and proving the
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applicability of the governmental interference exception to the PCRA’s time-
bar. See Hawkins, supra at 1253.
To the extent that Appellant invokes the benefit of the after-discovered
facts exception to the time-bar based on the case against the Attorney
General, (see Appellant’s Brief, at 9, 11, 22); 42 Pa.C.S.A. § 9545(b)(1)(ii),
we likewise conclude that he has failed to establish entitlement to relief. To
meet this exception, a petitioner must show “1) the discovery of an unknown
fact; 2) the fact could not have been learned by the exercise of due
diligence; and 3) the petition for relief was filed within 60 days of the date
that the claim could have been presented.” Commonwealth v. Smith, 35
A.3d 766, 771 (Pa. Super. 2011), appeal denied, 53 A.3d 757 (Pa. 2012)
(emphasis omitted). Here, Appellant has failed to demonstrate that he has
discovered any fact related to his conviction or sentence. Appellant’s
rambling and speculative tirade alleging misconduct on the part of the
Attorney General based on charges brought against her in a matter
completely unrelated to the instant case is insufficient to prove the
applicability of the after-discovered facts exception to this case.
With respect to Appellant’s claim that he is entitled to a hearing on the
PCRA petition, (see Appellant’s Brief, at 20-21), we disagree. Because
Appellant presented no genuine issue of material fact concerning the
timeliness of his petition, the PCRA court properly dismissed it without a
hearing. See Pa.R.Crim.P. 907(1); Miller, supra at 992.
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In sum, we conclude that Appellant has not met his burden of proving
his untimely petition fits within one of the three exceptions to the PCRA’s
time-bar. See Brown, supra at *4-5. Accordingly, we affirm the order of
the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/12/2016
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