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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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