J-S58010-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILLIAM VON SMITH,
Appellant No. 1667 MDA 2015
Appeal from the PCRA Order August 27, 2015
in the Court of Common Pleas of Dauphin County
Criminal Division at Nos.: 1086 MD 2015
1259 CD 1972
1260 CD 1972
CP-22-MD-0001261-1972
BEFORE: GANTMAN, P.J., BOWES, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED OCTOBER 20, 2016
Appellant, William Von Smith, appeals pro se from the order denying
his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.1
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
On September 22, 2016, we filed a judgment order in this matter reversing
and remanding this case to the trial court because it appeared from the
record that Appellant’s PCRA petition was his first. After our judgment order
was filed, we received a letter from the trial court asking for reconsideration
because the docket in this matter was not complete. The trial court
explained that there were at least twenty documents which were not
provided to this Court, and which would have been relevant to the instant
appeal. Several of these new materials are now included in a supplemental
record. They demonstrate that Appellant has filed at least three petitions
seeking post-conviction relief, and at least one of them was counseled.
(Footnote Continued Next Page)
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We take the factual and procedural history in this matter from the trial
court’s July 17, 2015 opinion and our review of the certified record.2 On
March 17, 1980, after his second3 jury trial, Appellant was convicted of
murder and aggravated robbery. The trial court sentenced Appellant to a
term of life imprisonment. On August 27, 1982, this Court affirmed
Appellant’s sentence. (See Commonwealth v. Von Smith, 450 A.2d 55,
58 (Pa. Super. 1982)). Appellant did not seek allowance of appeal with our
Supreme Court.
On October 9, 2014, Appellant filed the instant pro se PCRA petition.
On July 17, 2015, the PCRA court entered a memorandum opinion explaining
that Appellant was not entitled to post conviction collateral relief, and issuing
notice of its intent to dismiss Appellant’s petition without a hearing. See
Pa.R.Crim.P. 907(1). Appellant filed a response on July 30, 2015. On
August 27, 2015, the PCRA court dismissed Appellant’s petition as untimely.
On September 21, 2015, Appellant filed a timely notice of appeal, together
_______________________
(Footnote Continued)
(See Motion for Post Conviction Collateral Relief, 12/30/94, at 4-5). On that
basis we withdraw our judgment order and submit this memorandum.
2
As the trial court noted, this case is over forty years old and there is
limited docket information available. (See Trial Court Opinion, 7/17/15, at 1
n.1).
3
Appellant was granted a second trial after successfully arguing that counsel
during his first trial was ineffective for failing to file a timely motion for
severance. (See Commonwealth v. Von Smith, 406 A.2d 1034, 1036 (Pa.
1979)).
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with a statement of errors complained of on appeal. See Pa.R.A.P. 1925(b).
On November 24, 2015, the PCRA court filed a statement in lieu of a Rule
1925(a) opinion, referring to the reasoning set forth in its July 17, 2015
opinion. See Pa.R.A.P. 1925(a).
Appellant raises two questions on appeal:
1. Did the PCRA court err in dismissing Appellant’s PCRA
[p]etition when the Appelant [sic] alleged his fifth and fourteenth
Amendment Rights were violated when the Assistant District
Attoney [sic] witheld [sic] exculpatory and impeaching evidence?
2. Did the P[]CRA court err in dismissing Appellant’s PCRA
[p]etition when Appellant alleeged [sic] his Six [sic] Amendment
right to effective assistance of councel [sic] was violated when
both trial [] lawyers fail [sic] to use[ ]due diligence to obtain
excalpatory [sic] and [] impeaching evidence[]?
(Appellant’s Brief, at 4).
Appellant appeals from the denial of his serial PCRA petition. To be
eligible for relief pursuant to the PCRA, Appellant must establish that his
conviction or sentence resulted from one or more of the enumerated errors
or defects found in 42 Pa.C.S.A. § 9543(a)(2). Our standard of review for
an order denying PCRA relief is well settled:
This Court’s standard of review regarding a PCRA court’s
order is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Great deference is granted to the findings of the PCRA court, and
these findings will not be disturbed unless they have no support
in the certified record.
Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations
and quotation marks omitted). However, “if a PCRA [p]etition is untimely, a
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trial court has no jurisdiction to entertain the petition.” Commonwealth v.
Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted).
In this case, Appellant’s judgment of sentence became final on
September 26, 1982, when his time to file a petition for allowance of appeal
with the Pennsylvania Supreme Court expired. See Pa.R.A.P. 903(a);
Pa.R.A.P. 1113(a); 42 Pa.C.S.A. § 9545(b)(3). Therefore, Appellant had one
year from that date to file a petition for collateral relief, specifically, until
September 26, 1983. See 42 Pa.C.S.A. § 9545(b)(1). Because Appellant
filed the instant petition on October 9, 2014, it is untimely on its face, and
the PCRA court lacked jurisdiction to review it unless he pleaded and proved
one of the statutory exceptions to the time-bar. See id. at § 9545(b)(1)(i)-
(iii).
Section 9545 of the PCRA provides only three limited exceptions that
allow for review of an untimely PCRA petition:
(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.
Id.
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“If the [PCRA] petition is determined to be untimely, and no exception
has been pled and proven, the petition must be dismissed without a hearing
because Pennsylvania courts are without jurisdiction to consider the merits
of the petition.” Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa.
Super. 2011), appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted).
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).
Here, Appellant has claimed the applicability of the newly discovered
fact exception to the PCRA time-bar. (See Appellant’s Brief, at 7); 42
Pa.C.S.A. § 9545(b)(1)(ii). Specifically, he argues that his sister’s discovery
of an affidavit from Kevin Borter—who claimed to have heard Alfred
Patterson, a witness against Appellant, offer Appellant a bribe to take the
blame for murder—is a newly discovered fact. We disagree.
“[S]ubsection (b)(1)(ii) has two components, which must be alleged
and proved. Namely, the petitioner must establish that: 1) the facts upon
which the claim was predicated were unknown and 2) could not have been
ascertained by the exercise of due diligence.” Commonwealth v. Brown,
111 A.3d 171, 176-77 (Pa. Super. 2015), appeal denied, 125 A.3d 1197 (Pa.
2015) (emphases and citation omitted).
The timeliness exception set forth in Section 9545(b)(1)(ii)
requires a petitioner to demonstrate he did not know the facts
upon which he based his petition and could not have learned
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those facts earlier by the exercise of due diligence. Due
diligence demands that the petitioner take reasonable steps to
protect his own interests. A petitioner must explain why he
could not have obtained the new fact(s) earlier with the exercise
of due diligence. This rule is strictly enforced.
Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010),
appeal denied, 20 A.3d 1210 (Pa. 2011) (citations omitted).
Exception (b)(1)(ii) requires petitioner to allege and prove
that there were “facts” that were “unknown” to him and that he
could not have ascertained those facts by the exercise of due
diligence. The focus of the exception is on [the] newly
discovered facts, not on a newly discovered or newly willing
source for previously known facts.
Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008) (citations and
some quotation marks omitted).
Here, it is self-evident that the fact that Mr. Patterson allegedly offered
Appellant a bribe to take the blame for murder was not unknown to
Appellant, who was the recipient of the offered bribe. See id. Furthermore,
Appellant has not met his burden of proving that he could not have obtained
the affidavit earlier by exercising due diligence, where his sister obtained it
in a public records search. See Monaco, supra at 1080.
Hence, Appellant has failed to meet his burden of pleading and proving
the applicability of an exception to the PCRA time-bar. See Hawkins,
supra at 1253; Jackson, supra at 519. Therefore, we conclude that the
PCRA court properly dismissed his untimely petition without a hearing on the
basis that it lacked jurisdiction. See Hutchins, supra at 53.
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Order affirmed. Judgment order filed September 22, 2016 withdrawn.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2016
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