J-S15007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                 v.                            :
                                               :
                                               :
    LAVON CECIL SMITH                          :
                                               :
                       Appellant               :   No. 501 WDA 2018

                  Appeal from the PCRA Order March 20, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0014857-2000,
                            CP-02-CR-0015047-2000


BEFORE:       GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                                FILED APRIL 15, 2019

       Lavon Cecil Smith (“Appellant” or “Smith”), pro se, appeals from the

order entered March 20, 2018, that dismissed his fourth petition filed under

the Post Conviction Relief Act (“PCRA”)1 without a hearing. We affirm.

       On February 14, 2002, [at a bench trial,] the trial court convicted
       Smith of first-degree murder, attempted murder and aggravated
       assault for the stabbing death of his wife and serious injury of his
       daughter.1 On May 14, 2002, the trial court sentenced him to life
       in prison without the possibility of parole plus twenty to forty years
       of imprisonment. Smith filed post-sentence motions and a direct
       appeal, and this Court affirmed his judgment of sentence on
       January 6, 2004. The Pennsylvania Supreme Court denied his
       petition for allowance of appeal on June 23, 2004.
          1   18 Pa.C.S.A. §§ 2502(a), 901(a), 2702(a)(1).

       Smith filed a timely pro se PCRA petition on May 13, 2005. The
       PCRA court appointed counsel, who ultimately filed a
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1   42 Pa.C.S. §§ 9541–9546.



*    Retired Senior Judge assigned to the Superior Court.
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     Turner/Finley2 no-merit letter and a petition to withdraw as
     counsel. On September 5, 2006, the PCRA court granted counsel’s
     petition to withdraw and issued notice of its intent to dismiss
     Smith’s petition without a hearing pursuant to Pa.R.Crim.P. 907.
     The PCRA court dismissed the petition on October 16, 2006.
     Smith appealed the dismissal pro se, and this Court affirmed on
     October 2, 2007.3 Our Supreme Court denied his petition for
     allowance of appeal on July 23, 2008.
        2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
        and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
        1988) (en banc).
        3 While Smith’s appeal from the dismissal of his first PCRA
        petition was pending before this Court, the record reflects
        that on April 5, 2007, Smith filed a pro se motion entitled
        “Motion for Ineffective Assistance of Counsel,” upon which
        no action was taken by the lower court.

     Smith filed a second pro se PCRA petition on July 27, 2011. On
     August 19, 2011, the PCRA court issued a Rule 907 notice, and
     thereafter dismissed the petition on September 21, 2011. Smith
     again appealed this dismissal pro se, and this Court affirmed on
     August 1, 2012. On December 26, 2012, the Pennsylvania
     Supreme Court denied his request for allowance of appeal.

     Smith filed [his third] pro se PCRA petition . . . on April 7, 2014,
     alleging that Commonwealth witness Detective Christine Williams
     was biased in her investigation, as she knew the victims in this
     case and shared the same last name as Smith’s deceased wife.
     According to Smith, this information constituted newly discovered
     facts and Brady4 material that the Commonwealth withheld,
     entitling him to a new trial. The PCRA court appointed counsel,
     who filed a Turner/Finley no-merit letter and request to
     withdraw. The PCRA court issued a Rule 907 notice on May 5,
     2014 and dismissed the petition on September 16, 2014,
     permitting counsel to withdraw.
        4   Brady v. Maryland, 373 U.S. 83 (1963).

     Smith filed a timely pro se notice of appeal.




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Commonwealth v. Smith, No. 1627 WDA 2014, unpublished memorandum

at 1-3 (Pa. Super. filed July 8, 2015). This Court affirmed the order dismissing

Appellant’s third PCRA petition on July 8, 2015. Id. at 1.

       On February 22, 2018, Appellant, pro se, filed his fourth PCRA petition,

alleging “actual innocence[,]” a “miscarriage of justice[,]” and “government

interference” and contending that Detective Williams committed perjury.

PCRA Petition, 2/22/2018, at 3. Additionally, Appellant claims that a violation

of the Pennsylvania and United States Constitutions occurred, that his counsel

was ineffective, that improper obstruction by a government official of

Appellant’s right to appeal occurred, and that his sentence is illegal. Id. at 2.

Appellant also attached a memorandum of law explaining that his claim of

“government interference” was based on alleged “perjured testimony” by

Detective Williams. Petitioner’s Memorandum of Law, 2/22/2018, at 3.

       That same day, the PCRA court entered a notice of intent to dismiss all

claims without a hearing pursuant to Pa.R.Crim.P. 907.         Appellant filed a

response. The response does not request to amend the PCRA petition.

       On March 20, 2018, the PCRA court dismissed Appellant’s petition. On

April 9, 2018, Appellant filed this timely appeal.2

       Appellant now presents the following issues for our review:




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2Appellant filed his statement of errors complained of on appeal on May 11,
2018. The trial court entered its opinion on October 17, 2018.

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       1.   Why the trial court miscarried justice by nullifying the
       (1000)s, thousands year old “castle doctrine,” in [Appellant’s]
       defense, in his home.

       2.    Why the government interfered by not revealing “material
       evidence” of trial judge going to college with and Detective
       Christine Williams going to high school defendants wife, hindering
       the chose of jury trial or bench trial.

       3.   Why the testimony of government witnesses Officers
       John McBurney and Timothy Hohos, reveal perjured testimony by
       Detective Christine Williams. [sic]

Appellant’s Brief at vi.

       “We review the denial of PCRA relief to decide whether the PCRA court’s

factual determinations are supported by the record and are free of legal error.”

Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018).

       The    timeliness     of   a   post-conviction   petition   is   jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

of sentence is final, unless the petition alleges and the petitioner proves one

of the three exceptions to the time limitations for filing the petition set forth

in section 9545(b) of the statute. See 42 Pa.C.S. § 9545(b)(1).3 Here, the

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3   The three exceptions to the timeliness requirement 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;



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PCRA court concluded that it lacked jurisdiction over Appellant’s fourth PCRA

petition, because the petition was untimely and failed to satisfy an exception

to the PCRA’s time bar. PCRA Court Opinion, filed October 17, 2018, at 2.

       A judgment of sentence becomes final 90 days after the Supreme Court

of Pennsylvania denies a petition for allowance of appeal. See U.S. Sup. Ct.

R. 13.     In the current action, the Pennsylvania Supreme Court denied

Appellant’s petition for allowance of appeal on June 23, 2004. Ninety days

thereafter was September 21, 2004. Appellant had one year afterwards to

file a PCRA petition – i.e., until September 21, 2005. 42 Pa.C.S. § 9545(b)(1).

Appellant filed the current petition on February 22, 2018, more than a decade

late. Therefore, Appellant’s petition was patently untimely.

       However, Appellant attempts to circumvent the time bar by asserting

government interference under subsection 9545(b)(1)(i).            PCRA Petition,

2/22/2018, at 3; Petitioner’s Memorandum of Law, 2/22/2018, at 3;

Appellant’s Brief at 7.




____________________________________________


       (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).


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       It is the petitioner’s burden to plead and prove, by a preponderance of

the evidence, that his facially untimely petition falls under one of the three

timeliness exceptions. See Commonwealth v. Ali, 86 A.3d 173, 178 (Pa.

2014). Subsection 9545(b)(1)(i) requires that the petitioner plead and prove

that his “failure to raise the claim previously was the result of interference by

government officials[.]” 42 Pa.C.S. § 9545(b)(1)(i).

       In the current appeal, Appellant has failed to plead why he could not

have previously raised a claim that Detective Williams perjured herself, see

generally PCRA Petition, 2/22/2018; Petitioner’s Memorandum of Law,

2/22/2018, and, thus, failed to meet the pleading requirement for the time

bar exception in subsection 9545(b)(1)(i).          See Ali, 86 A.3d at 178.

Consequently, the PCRA court was without jurisdiction to review the merits of

Appellant’s claim and properly dismissed his petition. See Hernandez, 79

A.3d at 651.4




____________________________________________


4 Assuming arguendo Appellant’s fourth PCRA petition was timely or that
Appellant successfully pleaded and proved an exception to the time bar,
thereby giving the PCRA court and this Court jurisdiction to reach the merits
of Appellant’s claims, see Hernandez, 79 A.3d at 651, Appellant’s challenges
to the application of the “castle doctrine” and to Detective Williams’s credibility
could have been raised as part of his direct appeal following his sentencing on
May 14, 2002, but he failed to do so and thus waived these issues. See 42
Pa.C.S. § 9544(b) (“for purposes of [the PCRA], an issue is waived if the
petitioner could have raised it but failed to do so before trial, at trial, during
unitary review, on appeal or in a prior state postconviction proceeding.”).




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       Having discerned no error of law, we affirm the order below.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/15/2019




____________________________________________


To the extent that Appellant’s “challenge[ to] the sufficiency of the evidence
with respect to the Commonwealth disproving self-defense or imperfect self-
defense” on direct appeal encompassed his current “castle doctrine” claim,
compare Trial Court Opinion, filed February 23, 2003, at 5, with Appellant’s
Brief at vi, 5, 7, this Court has previously considered and rejected that claim,
Commonwealth v. Smith, No. 1878 WDA 2002, unpublished memorandum
at 1-2 (Pa. Super. filed January 6, 2004) (affirming on the basis of the trial
court opinion), and issues that have been previously litigated, including those
on litigated on direct appeal, cannot be raised pursuant to the PCRA. 42
Pa.C.S. §§ 9543(a)(3), 9544(a)(2).

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