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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
CHRISTOPHER SMITH
Appellant No. 3542 EDA 2015
Appeal from the PCRA Order October 30, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1115931-1991
BEFORE: BOWES, MOULTON AND MUSMANNO JJ.
MEMORANDUM BY BOWES, J.: FILED JANUARY 30, 2017
Christopher Smith appeals pro se from the order entered October 30,
2015, denying his PCRA petition as untimely. We affirm.
The facts of this case were set forth in the Pa.R.A.P. Rule 1925(a)
opinion filed for purposes of direct appeal.
On 19 September 1991 at 11:00 P.M., on the corner of 52nd and
Haverford Avenues in Philadelphia, the defendant Christopher
Smith and another unapprehended man tentatively referred to
as “Marcus McDowell,” shot to death James Williams, a heavy-
set man in his thirties. Co-defendant Kevin Fitzpatrick
participated in this incident by agreeing to act as a look-out.
On the night in question, although it was raining, the defendant
and Marcus sat on the steps outside of a Chinese food restaurant
in the vicinity of 52nd and Haverford. The young co-defendant
Fitzpatrick stood nearby and kept watch as he was instructed to
do by Marcus. The three men were observing James Williams,
who was purchasing food from the Chinese restaurant and beer
from a nearby bar. As Mr. Williams left the restaurant with his
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food and his beer, the defendant and Marcus left their station
and approached the decedent from behind. One of the two men
pulled out a large silver revolver and pointed it at Mr. Williams’
head. After a brief conversation, the gunman pulled the trigger
and Mr. Williams fell. As he lay in the street, the two
perpetrators took his belongings and left.
Trial Court Opinion, 12/14/93, at 2-3 (citations omitted). In the weeks that
followed the murder, Appellant and Fitzpatrick were apprehended. Appellant
gave a statement admitting his involvement in the incident, but claimed that
Marcus McDowell shot the victim. N.T., 10/7/92, at 184-89.
Appellant and Fitzpatrick elected to proceed to a joint bench trial,
where Appellant was found guilty of, inter alia, second-degree murder and
was sentenced to life imprisonment.1 After sentencing, Appellant filed a
direct appeal, and we affirmed, Commonwealth v. Smith, 655 A.2d 1049
(Pa.Super. 1994). Appellant did not seek further review. He timely sought
PCRA relief, which was ultimately denied. We affirmed on August 27, 1998.2
Commonwealth v. Smith, No. 2849 Philadelphia 1997 (unpublished
memorandum) (Pa.Super. 1998). Appellant subsequently filed two
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1
The PCRA judge herein did not preside over this proceeding.
2
Appellant’s sentence was final before the 1995 amendments to the current
PCRA became effective. The legislature provided a one-year grace period
from the time constraints of filing a PCRA petition, from January 16, 1996 to
January 16, 1997, for petitioners whose judgment of sentence preceded the
PCRA. See Commonwealth v. Alcorn, 703 A.2d 1054 (Pa. 1997).
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additional petitions for PCRA relief, both of which were dismissed due to the
failure to file a brief.
The instant proceedings commenced on May 1, 2015, when Appellant
filed a motion attaching an April 21, 2015 affidavit from an inmate, Steven
Guilford, who stated the following. While engaged in small talk in the prison
yard, Guilford informed Appellant that he grew up in West Philadelphia.
Appellant then asked Guilford if he knew Marcus McDowell; Guilford replied
that he did, but said Marcus’s real name is Mark Kevin McDowell. Guilford
further stated that he heard McDowell was involved in a murder. Guilford
wrote that Mark McDowell has a twin brother, Anthony. The twin told
Guilford at some unspecified point in time that the police moved Mark to
Williamsport and “got him out of” the murder.3
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3
We have reviewed the trial transcript and note that the detective who took
Appellant’s statement was asked on cross-examination about McDowell’s
possible involvement. Appellant’s attorney stated that he possessed a
statement by “Kevin” McDowell. N.T., 10/7/92, at 204. The detective was
asked if this individual was actually Marcus McDowell. Id. The detective
testified that he was not involved with speaking to that individual. However,
he stated that, “To the best of my recollection, at some later point we found
out that the Marcus McDowell we actually were looking for was the fellow
that we had in that night with a different name.” Id. at 204-05.
Appellant’s theory appears to be that the Commonwealth deliberately
released McDowell in exchange for information that Appellant was involved
and suppressed his true name as well as the existence of some type of deal.
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On September 17, 2015 the court issued its notice of intent to dismiss
without a hearing. Appellant responded by filing an objection on October 6,
2015. This timely appeal followed the October 30, 2015 dismissal of
Appellant’s petition for PCRA relief. The PCRA court did not order Appellant
to file a Pa.R.A.P. 1925(b) statement of matters complained of on appeal.
The following issues are presented for our consideration.
I. Did the PCRA court err by not finding that the Commonwealth
violated Brady v. Maryland4 when the Commonwealth failed
to disclose the true identity of alleged co-conspirator, Marcus
McDowell?
II. Did the PCRA court err by not finding that the Commonwealth
and government violated Brady v. Maryland when the
Commonwealth failed to disclose a substantial benefit given
to alleged co-conspirator, Marcus McDowell?
III. Did the PCRA court err by not granting Appellant’s application
for leave to pursue discovery pursuant to Pennsylvania Rule
of Criminal Procedure 902(E)(1) and in failing to grant that
discovery request the PCRA violated Appellant’s right to due
process under the Fourteenth Amendment?
Appellant’s brief at 8.
Initially, we observe that our review of the denial of a PCRA petition is
well-settled. “In reviewing the denial of PCRA relief, we examine whether
the PCRA court's determination is supported by the record and free of legal
error.” Commonwealth v. Mitchell, 141 A.3d 1277, 1283-83 (Pa. 2016)
(quotation and citation omitted).
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4
Brady v. Maryland, 373 U.S. 83 (1963).
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The timeliness of a petition implicates the PCRA court’s ability to
adjudicate the controversy. If a PCRA petition is untimely, “neither this
Court nor the trial court has jurisdiction over the petition.” Commonwealth
v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). We
review that legal conclusion de novo. Id. A PCRA petition, including a
second or subsequent petition, must be filed within one year of the date that
the judgment of sentence becomes final unless an exception applies. 42
Pa.C.S. § 9545(b)(1).
Appellant’s sentence became final in 1994. Thus, the petition is
timely only if one of the statutory exceptions applies. These exceptions are:
(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).
Herein, Appellant’s petition jointly invokes the § 9545(b)(1)(i) and (ii)
exceptions. The § 9545(b)(1)(ii) exception requires the petitioner to
establish (1) that the facts upon which the claim was predicated were
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unknown and (2) that the facts could not have been discovered through the
exercise of due diligence. Commonwealth v. Bennet, 930 A.2d 1264, 1272
(Pa. 2007). We do not conduct a merits-based analysis of the actual claim.
See Commonwealth v. Cox, 146 A.3d 221, 229, n.11 (Pa. 2016)
(describing the function of § 9545(b)(1)(ii) as that of a “gatekeeper . . .
limited to considering only the existence of a previously unknown fact that
would allow a petitioner to avoid the strict one year time-bar.”). A petition
invoking any of these exceptions must be filed within sixty days of the date
the claim could have been presented. 42 Pa.C.S. § 9545(b)(2).
Instantly, Appellant contends that he presented the newly-discovered
facts within sixty days, as the Commonwealth failed to disclose McDowell’s
true identity and the purported favorable treatment during discovery in
violation of Brady v. Maryland, 373 U.S. 83 (1963). “Although a Brady
violation may fall within the governmental interference exception, the
petitioner must plead and prove the failure to previously raise the claim was
the result of interference by government officials, and the information could
not have been obtained earlier with the exercise of due diligence.”
Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008).
Furthermore, as with the newly-discovered evidence exception, we do not
conduct a merits analysis of the underlying Brady claim in resolving a
timeliness inquiry. Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa.
2008).
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The PCRA court explained its reasons for deeming the petition
untimely as follows.
Petitioner, who confessed to participating in the crime, failed
however to demonstrate that the identity of his alleged co-
conspirator was unascertainable with the exercise of due
diligence. Instead, Petitioner outright dismissed his obligation of
demonstrating due diligence by baldly asserting that Marcus’s
“true identity” was undiscoverable because the government
actively suppressed the information. Petitioner ignored the fact
that according to Mr. Guilford’s affidavit, Mr. McDowell was
known as Marcus by his family and friends. Thus, despite
Petitioner’s complicity in the offense and awareness of his co-
conspirator’s widely-acknowledged alias, he nevertheless
rejected his obligation under subsection 9545(b)(1). Petitioner’s
unfounded speculation of a governmental cover-up did not
relieve him of his burden to demonstrate due diligence.
Petitioner thus failed to establish timeliness under either cited
PCRA subsection.
Trial Court Opinion, 12/15/15, at 4-5.
We agree that Appellant has failed to demonstrate that he acted with
due diligence in ascertaining his alleged co-conspirator’s true name.
Appellant has failed to establish why he could not have learned McDowell’s
legal name through due diligence, nor has he attempted to establish that the
government interfered with his ability to do so. Indeed, our review of
Appellant’s statement shows that Appellant identified McDowell in a photo
array and stated, “I heard that he told the cops that I shot the guy.” N.T.,
10/7/92, at 185. Nothing prevented Appellant from investigating McDowell’s
involvement.
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More significantly, we note that the facts upon which the claim is
predicated goes far beyond the mere fact of McDowell’s name. As reflected
in Appellant’s second claim on appeal, he alleges that the “Commonwealth
failed to disclose a substantial benefit given to alleged co-conspirator,
Marcus McDowell.” Appellant’s brief at 8.
However, this alleged deal is not demonstrated by the affidavit. In
Commonwealth v. Brown, 141 A.3d 491 (Pa.Super. 2016), we examined
an affidavit wherein the writer alleged that a third party, Tommy Lemon,
confessed to the litigant’s crime. Id. at 501. We concluded that the
affidavit did not constitute a newly-discovered fact.
We conclude that [the affidavit] does not constitute a newly-
discovered fact. We find instructive our Supreme Court's decision
in Commonwealth v. Yarris, 557 Pa. 12, 731 A.2d 581 (1999).
In Yarris, the petitioner sought to invoke the newly-discovered
fact exception to the PCRA's timeliness requirement. He relied
upon an affidavit by an individual who said that she heard
another individual, not the petitioner, confess to the murder for
which the petitioner had been convicted. Our Supreme Court
held
that the evidence which purportedly reveals that
someone other than [the petitioner] committed the
murder is hearsay, not within any exception, and so
unreliable as to be inadmissible. A claim which rests
exclusively upon inadmissible hearsay is not of a
type that would implicate the [newly-discovered fact]
exception to the timeliness requirement, nor would
such a claim, even if timely, entitle [the petitioner]
to relief under the PCRA.
Id. at 592.
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The alleged confession by Tommy Lemon is hearsay as it is an
out-of-court statement offered for the truth of the matter
asserted. See Pa.R.Evid. 801(c). Any argument that Tommy
Lemon's confession was a statement against interest fails
because “for this exception to apply, the declarant must be
unavailable as a witness, see Pa.R.Evid. 804(b), and [A]ppellant
offers no proof [Lemon] is not available.
Id. at 501–02 (alterations in original). Herein, the affidavit does not even
present a purported confession by a third party overheard by the affidavit-
writer/witness. Rather, Appellant avers that Guilford could testify to
speculation by McDowell’s brother that the police covered up McDowell’s
involvement in the murder. This alleged fact does not fall under the
pertinent exception.
Next, we address Appellant’s assertion that the PCRA court erred by
denying his request for discovery. His pro se petition sought two items: any
statements by McDowell from the interview that took place on September
28, 1991, and the contract that afforded McDowell his freedom. PCRA
Petition, 5/1/15, at 7.
Discovery in non-capital cases is permitted only upon leave of court
after a showing of exceptional circumstances. Pa.R.Crim.P. 902(E)(1). That
phrase is not defined, and it is “for the trial court, in its discretion, to
determine whether a case is exceptional and discovery is therefore
warranted.” Commonwealth v. Frey, 41 A.3d 605, 611 (Pa.Super. 2012).
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However, while Rule 902(E) applies at “any stage of the proceedings,”
we explained in Commonwealth v. Johnston, 42 A.3d 1120 (Pa.Super.
2012), that the ability to grant discovery is conditioned on jurisdiction.
However, the PCRA Court's ability to order discovery is precluded
by the lack of jurisdiction demonstrated by the failure of the
Appellants to satisfy the § 9545(b)(1)(ii) exception to the time-
bar. As has been routinely stated by the Supreme Court of
Pennsylvania, “[t]he PCRA's timeliness requirements are
jurisdictional in nature and must be strictly construed; courts
may not address the merits of the issues raised in a petition if it
is not timely filed.”
We, therefore, conclude that Appellants' second pro se PCRA
petitions were untimely, and that they failed to meet an
exception to the PCRA timeliness requirements. Because the
PCRA court below lacked jurisdiction, it was precluded
from entertaining a motion for PCRA discovery.
Id. at 1130 (citations omitted, emphasis added). Thus, the court was
precluded from entertaining Appellant’s motion and no error inhered in
denying that request. Additionally, while Appellant claims the denial of his
request violated his constitutional due process rights, that argument is not
developed in any fashion. “While this Court may overlook minor defects or
omissions in an appellant’s brief, we will not act as his or her appellate
counsel.” Commonwealth v. Freeman, 128 A.3d 1231, 1249 (Pa.Super.
2015) (citing Bombar v. W. Am. Ins. Co., 932 A.2d 78, 93 (Pa.Super.
2007)).
Finally, we address Appellant’s September 19, 2016 Application for
Relief, which requests that we reverse the judgment of the PCRA court due
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to the Commonwealth’s failure to file a timely brief. Appellant correctly
notes that the Commonwealth did not comply with our July 21, 2016 per
curiam order, which granted a second extension of time to file a brief, with a
due date of August 15, 2016. The order specifically stated that no further
extensions would be granted absent extraordinary circumstances. The
Commonwealth did not file its brief until September 16, 2016 and did not
seek an extension.
While we disapprove of the Commonwealth flouting our order,
Appellant is not entitled to a windfall. The applicable Rule of Appellate
Procedure states:
If an appellant fails to file his designation of reproduced record,
brief or any required reproduced record within the time
prescribed by these rules, or within the time as extended, an
appellee may move for dismissal of the matter. If an appellee
fails to file his brief within the time prescribed by these rules, or
within the time as extended, he will not be heard at oral
argument except by permission of the court.
Pa.R.A.P. 2188. Thus, an appellee may move for dismissal due to an
untimely brief, but an appellant may not. Moreover, we did not consider the
Commonwealth’s brief in reaching our decision. See Commonwealth v.
Tisdale, 100 A.3d 216, 217, n.4 (Pa.Super. 2014) (arguments advanced in
untimely Commonwealth brief will not be considered). Hence, we deny the
application.
Application for Relief denied. Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/2017
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Com. v. Smith, C.
Combined Opinion