Com. v. Smith, W.

J-S80014-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

WALTER A. SMITH :

:

Appellant : No. 2094 EDA 2017

Appeal from the PCRA Order June 16, 2017

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0607261-2003

BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.: FILED JANUARY 23, 2018

Walter Smith appeals pro se from the order denying his second PCRA

petition as untimely. We affirm.

We previously set forth the facts in a prior memorandum, which we

adopt herein.

On June 22, 1999, Steven Taylor (victim) was fatally shot while

behind the wheel of a vehicle in North Philadelphia. N’Cole

Pendergrass testified at trial that around 3:30 p.m. he was

walking home and walked through a driveway located between

Patton and 32nd Streets in North Philadelphia. While walking

through the driveway, Mr. Pendergrass saw the victim, who was

driving a gray Oldsmobile, pull into the driveway he was walking

in and drive past. The victim, who was in the car by himself,

stopped the car in the driveway and Mr. Pendergrass observed

that [Appellant] was standing about 10 to 12 feet from the

victim’s driver side door and was on foot. Mr. Pendergrass then

went inside of his residence and heard “five pops go off” after

which he immediately went outside of his residence again. Once

outside of his residence, Mr. Pendergrass saw the victim’s car

pass him, with the victim inside, heading north on the driveway

and then heard a loud crash. Mr. Pendergrass then saw

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[Appellant] running down the driveway with a dark object in his

hand, although he could not identify this object as a gun. After

approaching the victim’s car, which had crashed into a wall, Mr.

Pendergrass observed that the victim was twitching and saw that

he had suffered a wound to his chest and face and had glass

from the car crash all over his body. He also saw that there were

two bullet holes in the front driverside door. Mr. Pendergrass

recalled that, a couple of days prior to the shooting, he had seen

[Appellant] and the victim on 33rd Street and Allegheny Avenue

having a physical altercation. The victim suffered four gunshot

wounds which ultimately caused his death.

Rashawn Perry also testified at trial. On the day of the shooting,

Mr. Perry had been cleaning his garage when he heard the

shooting. He then saw [Appellant] running near 32nd Street

toward 33rd Street. Mr. Perry recognized [Appellant], having

seen him in the neighborhood on two occasions prior to the date

of the shooting. He also identified [Appellant] in a photo array on

the day of the shooting, although at trial he testified he had

actually identified three different individuals in the array and not

just one.

Commonwealth v. Smith, 40 A.3d 183 (Pa.Super. 2011) (footnote

omitted, alterations in original).

Appellant fled and was not apprehended until 2003. He waived his

right to a jury trial and was found guilty of, inter alia, first-degree homicide,

and sentenced on July 8, 2005. Appellant was unsuccessful on direct

appeal. Commonwealth v. Smith, 935 A.2d 22 (Pa.Super. 2007).

Appellant requested further review with the Supreme Court of Pennsylvania,

which denied his request on March 25, 2008. Commonwealth v. Smith,

945 A.2d 170 (Pa. 2008).

Thereafter, Appellant timely pursued relief through the PCRA. The

PCRA court denied relief, and, on appeal, we remanded for an evidentiary

hearing as to whether trial counsel was ineffective with respect to advice not

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to testify at trial. Commonwealth v. Smith, 40 A.3d 183 (Pa.Super.

2011). Following remand, the PCRA court held an evidentiary hearing and

denied relief, which we affirmed on appeal. Commonwealth v. Smith, 81

A.3d 991 (Pa.Super. 2013).

Appellant thereafter filed the instant PCRA petition, his second, on

December 22, 2016. Within the petition, Appellant asserted that his petition

was timely due to governmental interference, 42 Pa.C.S. § 9545(b)(1)(i),

specifically, that the Commonwealth violated its disclosure obligations

pursuant to Brady v. Maryland, 373 U.S. 83 (1963) (prosecution's

suppression of evidence favorable to accused, when requested, violates due

process).

At this juncture, we note that Appellant pursued a post-sentence

motion claim, filed October 27, 2005, asserting that he was unaware that

Mr. Pendergrass had previously used a different name, Linwood Pressley.

The basis for that claim was an obituary notice for Mr. Pendergrass that used

the Pressley name.1 Appellant pursued that claim both as an ineffectiveness

claim, i.e. trial counsel failed to adequately investigate Mr. Pendergrass, and

____________________________________________

1 Linwood Pressley had been convicted of crimen falsi crimes in 1973 and

1986, over ten years before the instant trial. The Commonwealth notes that

there is no evidence that “[Mr.] Pendergrass was legally named ‘Linwood

Pressley,’ and was not legally or commonly known by the name “[Mr.]

Pendergrass.” Commonwealth’s brief at 11. For purposes of our analysis,

the accuracy of these representations is irrelevant.

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separately as a violation of Appellant’s constitutional right to confront his

accusers, in that he did not know the true identity of his accuser.

On May 8, 2017, the PCRA court issued a notice of intent to dismiss,

noting that Appellant knew of Mr. Pendergrass’s existence in 2005 as

demonstrated by his post-sentence motions, and therefore the claim was

untimely.

Appellant filed a response, which also served as a motion to amend his

prior pleading. Appellant cited Commonwealth v. Harper, 890 A.2d 1078

(Pa.Super. 2006), as a basis for jurisdiction, an issue discussed infra. On

June 16, 2017, the PCRA court entered an order dismissing the petition, and

this timely appeal followed. Appellant presents the following issue for our

review.

Did the PCRA court error by dismissing the Brady claim as

untimely when the prosecution committed fraud on the court and

the PCRA court had inherent power to correct fraud pursuant to

this court's decision in [Harper]?

Appellant’s brief at 3.2

____________________________________________

2 The Commonwealth filed its brief six days after the deadline and did not

request an extension. On December 16, 2017, Appellant filed a motion to

strike the Commonwealth’s brief, or, in the alternative, permit Appellant to

file a reply brief. The Commonwealth responded, noting that “[t]he

undersigned attorney had believed he could prepare the brief without the

need to petition for any extension of time but was incorrect and filed the

brief six days after the initial due date.” Answer, 12/18/17, at 3.

We have little doubt that the Philadelphia County District Attorney’s office

would not look favorably upon such a feeble defense to a missed deadline if

(Footnote Continued Next Page)

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This Court reviews the “denial of PCRA relief to determine whether the

findings of the PCRA court are supported by the record and free of legal

error.” Commonwealth v. Roane, 142 A.3d 79, 86 (Pa.Super. 2016)

(quoting Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015)).

All PCRA petitions must be filed within one year of the date a defendant's

judgment of sentence becomes final unless an exception to the one-year

time restriction applies. 42 Pa.C.S. § 9545(b)(1). 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). “As the timeliness of a PCRA petition is a question of law,

our standard of review is de novo and our scope of review is plenary.

Commonwealth v. Callahan, 101 A.3d 118, 121 (Pa.Super. 2014) (citation

omitted).

(Footnote Continued) _______________________

offered by a defendant. By order dated October 3, 2017, and served

electronically on October 6, 2017, the Deputy Prothonotary of this Court

informed the Commonwealth that the briefs were due November 2, 2017.

The brief missed that deadline by six days, and the Commonwealth fails to

explain why it did not request an extension when it became clear its

confidence in meeting the deadline was misplaced.

Nevertheless, Appellant’s motion concedes that the Commonwealth’s brief

was furnished on November 30, 2017, and Appellant could have filed any

reply brief along with the instant motion. We therefore deny both requests,

but remind the Commonwealth that deadlines are not suggestions.

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The pertinent consideration, as it is in all PCRA petitions that are

facially untimely, is whether the petition alleged and proved one or more of

the following exceptions:

(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). Additionally, any petition seeking to raise

any of these exceptions “shall be filed within 60 days of the date the claim

could have been presented.” 42 Pa.C.S. § 9545(b)(2).

Appellant maintains that the Commonwealth knew that Mr.

Pendergrass lied about his identity, as evidenced by his bringing a Brady

claim. A Brady claim may qualify as an exception to the PCRA time-bar, as

the information learned by the petitioner, i.e. the information that is said to

have been withheld by the prosecution, can qualify as “facts . . . [that] were

unknown to the petitioner and could not have been ascertained by the

exercise of due diligence[.]” Id.

Simultaneously, a petitioner must establish that the claim was raised

within sixty days of when the claim could first have been presented, and, in

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this case, that requirement dooms Appellant’s claim. There is no doubt that

Appellant was aware of the information in 2005, and therefore his 2016 filing

was not within sixty days of when that claim could have been presented.

Appellant attempts to ignore this limitation by holding that the

government interfered with his ability to bring the claim by failing to disclose

the material in discovery. However, as our Supreme Court explained in

Commonwealth v. Abu-Jamal, 941 A.2d 1263 (Pa. 2008):

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. Section

9545(b)(1)(ii)'s exception requires the facts upon which

the Brady claim is predicated were not previously known to the

petitioner and could not have been ascertained through due

diligence. Commonwealth v. Lambert, 584 Pa. 461, 884 A.2d

848, 852 (2005). In [Commonwealth v.] Bennett, [941 A.2d

1263 (Pa. 2008)], we clarified that § 9454(b)(1)(ii)'s exception

does not contain the same requirements as a Brady claim,

noting “we made clear the exception set forth in subsection

(b)(1)(ii) does not require any merits analysis of the underlying

claim. Rather, the exception merely requires that the ‘facts' upon

which such a claim is predicated must not have been known to

appellant, nor could they have been ascertained by due

diligence.” Bennett, at 1271 (quoting Lambert, at 852).

Id. at 1268 (citation omitted). Herein, the facts were clearly known to

Appellant in 2005, and the PCRA court correctly determined that it lacked

jurisdiction to address the merits of his claim.

Next, we address Appellant’s contention that the foregoing analysis

misconstrues his argument. Appellant agrees that he knew of the evidence

years ago, but states that fraud was committed upon the court, and avers

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that pursuant to Harper, supra, the court retains an inherent power, i.e.

unconstrained by the PCRA’s time limitations, to cure fraud. We now

examine the case.

In Harper, the PCRA court granted a new trial due to testimony by

Michael Watson, who stated that he observed the murder in question and

witnessed someone other than Harper commit the crime. “Based solely on

Watson’s testimony . . . the PCRA court granted [Harper] a new trial.” Id.

at 1080. Some unspecified time later, the Commonwealth filed a petition for

reconsideration and presented testimony from several witnesses, including

Watson’s parents, and records that established Watson’s testimony was

entirely false. The PCRA court determined that “[Harper]’s new trial had

been obtained by a fraud perpetrated on the court.” Id. That order, which

rescinded the prior order granting a new trial, was entered almost one year

after Harper received a new trial.

On appeal, Harper argued that the order granting him a new trial was

a final order, and could be modified only for a period of thirty days. Harper’s

argument focused on the interplay of 42 Pa.C.S. § 5505 and Pa.R.Crim.P.

910. First, § 5505 states that an order may only be modified or rescinded

within thirty days, provided no appeal has been taken:

Except as otherwise provided or prescribed by law, a court upon

notice to the parties may modify or rescind any order within 30

days after its entry, notwithstanding the prior termination of any

term of court, if no appeal from such order has been taken or

allowed.

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42 Pa.C.S. § 5505. Harper paired that statute with Pa.R.Crim.P. 910, which

states that “An order granting, denying, dismissing, or otherwise finally

disposing of a petition for post-conviction collateral relief shall constitute a

final order for purposes of appeal.” Thus, Harper maintained that Rule 910

dictated that the order granting him a new trial was final, and, pursuant to §

5505, could not be revisited after thirty days.

We disagreed, and held that “An order granting a new trial is not a

final order in a criminal proceeding; it is the judgment of sentence that

constitutes a final order. Since the order under consideration herein in no

manner terminated this criminal action, it was not final.” Id. at 1081.

Additionally, we held that Rule 910 only governed the finality of an order for

purposes of appeal. Thus, the order granting a new trial required the

Commonwealth to appeal within the applicable time period, but did not

create a final order for other purposes.

Next, we further held that the Commonwealth did not lose its right to

seek reconsideration of the order granting a new trial, since that order was

interlocutory. Pursuant to case law, § 5505 “applies only to final [o]rders . . .

[it] does not apply to interlocutory [o]rders.” Commonwealth v.

Nicodemus, 636 A.2d 1118, 1120 (Pa.Super. 1993) (citations omitted).

Additionally, we went on to state in dicta that “even if the order was

deemed ‘final’ . . . we would permit it to be opened in this instance because

it was procured by fraud.” Harper stated that “in the criminal context, the

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courts retain powers to alter even final judgments beyond the thirty days

outlined in section 5505.” Harper, supra at 1081.

Appellant focuses on this latter observation and argues that his

conviction was procured by fraud, and is therefore amenable to correction

even outside of the PCRA context, presumably through a joint application of

the PCRA and § 5505. We disagree, and find that Harper is readily

distinguishable. First, in Harper, the dicta stating that the order in question

could be revisited even if it were final is not the holding, as we actually held

that the order granting PCRA relief was interlocutory, at least for purposes of

§ 5505. “Rule 910 does not change the character of the order in question

for purposes of section 5505, which governs the modification of orders and

is a legislative enactment.” Id. Thus, we are not bound by Harper.

Alternatively, even accepting that portion of Harper as precedential,

the order sought to be reopened by Appellant is the judgment of sentence,

which was made final long ago. Harper addressed a trial court invoking §

5505 to rescind an order granting PCRA relief, whereas here Appellant is

attempting to modify his judgment of sentence by seeking a new trial due to

a defect in the trial process occasioned by a Commonwealth’s witness’s use

of an alias. It is clear that the effect of that error with respect to the

reliability of his conviction is cognizable under the PCRA, and therefore

Appellant must comply with, inter alia, the time limitations set forth at 42

Pa.C.S. § 9545.

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Furthermore, we hold that § 5505 simply does not apply to Appellant’s

fraud claim. As our Supreme Court observed in Commonwealth v.

Holmes, 933 A.2d 57 (Pa. 2007), the exception to the thirty-day time

period for purposes of revisiting a criminal sentence under § 5505 is

severely limited.

This exception to the general rule of Section 5505 cannot expand

to swallow the rule. In applying the exception to the cases at

bar, we note that it is the obviousness of the illegality, rather

than the illegality itself, that triggers the court's inherent power.

Not all illegal sentences will be amenable to correction as patent

errors.

Id. at 66-67.

Herein, the “illegality” of Appellant’s sentence is not obvious, as

Appellant is not, in truth, attacking the legality of his sentence; rather, he is

attacking the reliability of the process that led to his conviction, which in

turn resulted in his judgment of sentence. The two are obviously closely

related, as there could be no criminal sentence without a valid conviction.

Nevertheless, the PCRA remains the avenue to challenge the underlying

conviction, and Appellant cannot sidestep the PCRA by attempting to

manufacture jurisdiction through § 5505. As we observed in

Commonwealth v. Jackson, 30 A.3d 516 (Pa.Super. 2011), § 5505 cannot

independently create jurisdiction:

We have not found any decision in which our appellate courts

have upheld, or in which a PCRA court has invoked, inherent

jurisdiction absent statutory authority under 9545. Nor do we

believe that a PCRA court could invoke its inherent jurisdiction

after this deadline.

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....

Because section 5505 does not directly prohibit a court from

correcting an order after the deadline, our courts have

recognized a limited equitable exception to the statute that

permits a trial court to correct obvious illegalities in its sentences

that are not discovered within the 30–day statutory period.

....

Further, our courts have interpreted jurisdiction under section

9545 differently than section 5505. Unlike section 5505, section

9545 does not merely grant a court authority to consider a PCRA

petition for a limited period of time; it acts to divest a court of

jurisdiction once the filing period has passed. Therefore, when

the one-year filing deadline of section 9545 has expired, and no

statutory exception has been pled or proven, a PCRA court

cannot invoke inherent jurisdiction to correct orders, judgments

and decrees, even if the error is patent and obvious.

Id. at 522–23 (citation omitted). As such, we reject Appellant’s assertion

that the court had inherent jurisdiction to grant him a new trial.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/23/18

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