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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                          :
RONALD B. SMITH,                          :         No. 1897 EDA 2018
                                          :
                           Appellant      :


               Appeal from the PCRA Order Entered June 5, 2018,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-1241201-1993


BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED MAY 16, 2019

        Ronald B. Smith appeals pro se from the June 5, 2018 order dismissing

his untimely serial petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

        The PCRA court summarized the relevant facts and procedural history

of this case as follows:

              [Appellant] was arrested and subsequently charged in
              connection with the fatal shooting of William Jones in
              Philadelphia in 1992. On July 22, 1994, following a
              non-jury trial before the Honorable Lisa A. Richette,
              [appellant] was convicted of first-degree murder and
              possession of an instrument of crime.[1] On the same
              date, the trial court sentenced [appellant] to life
              imprisonment. On April 3, 1996, following a direct
              appeal, the Superior Court affirmed the judgment of
              sentence. The Pennsylvania Supreme Court denied
              allocatur on September 24, 1996.                 [See

1   18 Pa.C.S.A. §§ 2502(a) and 907(a), respectively.
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            Commonwealth v. Smith, 679 A.2d 258 (Pa.Super.
            1996), appeal denied, 683 A.2d 881 (Pa. 1996).]

            [Appellant] filed his first pro se PCRA petition on
            November 4, 1996.         Attorney Michael J. Farrell,
            Esquire, was appointed and subsequently filed an
            amended petition on September 29, 1998. The PCRA
            court denied relief on October 13, 1999. On April 30,
            2001, the Superior Court affirmed the PCRA court’s
            denial      of    post-conviction   relief.     [See
            Commonwealth v. Smith, 778 A.2d 1248
            (Pa.Super. 2001).]        [Appellant] did not seek
            allocatur in the Pennsylvania Supreme Court.
            [Appellant] was subsequently unsuccessful in
            obtaining collateral relief through a serial PCRA
            petition filed in 2012.

            On May 30, 2017, [appellant] filed the instant pro se
            PCRA petition, his third. [Appellant] submitted a
            supplemental petition[,] which was reviewed jointly
            with his initial petition. Pursuant to Pennsylvania Rule
            of Criminal Procedure 907, [appellant] was served
            notice of the PCRA court’s intention to dismiss his
            petition on April 3, 2018. [Appellant] submitted a
            response to the Rule 907 notice on April 24, 2018. On
            June 5, 2018, the PCRA court dismissed his PCRA
            petition as untimely. On June 20, 2018, the instant
            notice of appeal was timely filed to the Superior
            Court.[2]

PCRA court opinion, 8/15/18 at 1-2 (footnotes omitted).

      Appellant raises the following interrelated issues for our review:

            I.    [D]id the PCRA Court err, and commit reversible
                  error when it failed to recognize a timely
                  presented petition to the court, that was
                  pertinent to the due process of the law with
                  regards to final disposition of a (PCRA) petition


2 The PCRA court did not order appellant to file a concise statement of errors
complained of on appeal, pursuant to Pa.R.A.P. 1925(b). The PCRA court filed
its Rule 1925(a) opinion on August 15, 2018.


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                   by stating that petitioner failed to show due
                   diligence?

            II.    Did the PCRA Court err, and commit reversible
                   error when it dismissed [a]ppellant’s petition
                   without the benefit of a properly conducted
                   evidentiary hearing to determine the credibility
                   of the presented statement(s) in the form of [a]
                   phone conversation with [C]ommonwealth
                   witness Shawn Parker that led to the filing of the
                   said petition, and therefore being able to render
                   a fully informed legal opinion?

            III.   Did the PCRA Court err, and commit reversible
                   error when it dismissed [a]ppellant’s petition
                   without the benefit of allowing appointed
                   [PCRA] counsel to amend, and perfect
                   [appellant’s] petition by allowing counsel to
                   retrieve the phone conversation between
                   [appellant], Johnny Walls, and Commonwealth
                   witness Shawn Parker?

Appellant’s brief at VI.

      Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s

findings will not be disturbed unless there is no support for the findings in the

certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)

(citations omitted). “This Court grants great deference to the findings of the

PCRA court, and we will not disturb those findings merely because the record

could support a contrary holding.” Commonwealth v. Hickman, 799 A.2d

136, 140 (Pa.Super. 2002) (citation omitted).



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      Preliminarily, we must consider the timeliness of appellant’s PCRA

petition because it implicates the jurisdiction of this court and the PCRA court.

Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014) (citation

omitted). All PCRA petitions, including second and subsequent petitions, must

be filed within one year of when a defendant’s judgment of sentence becomes

final. See 42 Pa.C.S.A. § 9545(b)(1). “[A] judgment becomes final at the

conclusion of direct review, including discretionary review in the Supreme

Court of the United States and the Supreme Court of Pennsylvania, or at the

expiration of time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).

      Here, the record reveals that appellant’s judgment of sentence became

final on December 23, 1996, 90 days after the Pennsylvania Supreme Court

denied allowance of appeal and the deadline for filing a petition for writ of

certiorari in the United States Supreme Court expired. See id. Accordingly,

appellant had until December 23, 1997 to file a timely PCRA petition. See id.

at § 9545(b)(1). Appellant’s instant petition was filed on May 30, 2017, more

than 20 years after his judgment of sentence became final, and is patently

untimely, unless appellant can plead and prove that one of the three statutory

exceptions to the one-year jurisdictional time-bar applies.

      The three statutory exceptions to the PCRA time-bar are as follows:

            (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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             (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.A. § 9545(b)(1). “Any petition invoking an exception . . . shall be

filed within 60 days of the date the claim could have been presented.” Id. at

§ 9545(b)(2).3

      Instantly, appellant invokes the “newly-discovered facts” exception to

the PCRA time-bar based on a three-way telephone conversation he allegedly

had   with   Commonwealth        eyewitness   Shawn    Parker   and      his   friend,

Johnny Walls, on April 8, 2017, wherein he claims that Parker acknowledged

that he falsely identified appellant as William Jones’ murderer. (Appellant’s

brief at 4-5.) In support of this claim, appellant has attached a signed affidavit

from Walls to his petition and brief detailing this conversation.               (See

appellant’s brief at appendix, exhibit JW; pro se “motion”, 2/15/18 at 3.)

Appellant contends that these “newly discovered facts” are exculpatory in




3A 2018 amendment to Section 9545(b)(2) substituted “within one year” for
“within 60 days.” The effective date of the amendment is December 24, 2018,
and the amendment applies to claims arising one year before the effective
date or thereafter. See Act 2018-146, § 3. Here, because appellant’s claim
arose prior to December 24, 2017, the 60-day rule applies.


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nature and warrant that a new trial be granted. (Appellant’s brief at 4-10.)

We disagree.

      As noted, in order to prevail on a “newly-discovered facts” claim,

appellant is required to demonstrate “that the facts upon which the claim was

predicated were unknown and could not have been ascertained by the exercise

of due diligence.” Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa.

2007)      (emphasis   and   numeration    omitted),    citing   42   Pa.C.S.A.

§ 9545(b)(1)(ii). Here, our review of the record reveals that appellant has

failed to prove that the alleged “fact” that Parker was falsely inculpating him

was unknown to him nor undiscoverable through the exercise of due diligence.

      The record reveals that appellant argued that Shawn Parker falsely

identified him as William Jones’ murderer as early as his 1994 bench trial,

cross-examined Parker with regard to the veracity of his testimony, and

presented a witness who contended that Parker, and not appellant, was the

shooter.     (Notes of testimony, 7/21/94 at 355-398; 7/22/94 at 430.)

Moreover, appellant acknowledged that he waited until November of 2004, a

decade after his conviction, before writing the first of three letters to Parker

requesting that he come forward and tell the truth. (Appellant’s brief at 6 and

appendix, exhibits 1-3.) Appellant has failed to demonstrate that his decision

to wait more than ten years before attempting to contact Parker constituted

a reasonable step to protect his own interests.




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      Under Section 9545(b)(1)(ii), “due diligence requires neither perfect

vigilance nor punctilious care, but rather it requires reasonable efforts by a

petitioner, based on the particular circumstances, to uncover facts that may

support a claim for collateral relief.” Commonwealth v. Brown, 141 A.3d

491, 506 (Pa.Super. 2016) (citation omitted; emphasis added).            Clearly,

appellant failed to undertake reasonable efforts in this instance. Based on the

foregoing, we find that appellant has failed to demonstrate that his untimely

petition satisfies the newly discovered fact exception to the statutory one-year

time-bar.

      Appellant next argues that the PCRA court erred in dismissing his PCRA

petition without conducting an evidentiary hearing on all the aforementioned

issues. (Appellant’s brief at 11-13.) We disagree.

      This court has long recognized that there is no absolute right to an

evidentiary hearing. Commonwealth v. Hart, 911 A.2d 939, 941 (Pa.Super.

2006) (citation omitted). “It is within the PCRA court’s discretion to decline

to hold a hearing if the petitioner’s claim is patently frivolous and has no

support either in the record or other evidence.” Commonwealth v. Wah,

42 A.3d 335, 338 (Pa.Super. 2012) (citations omitted). When the PCRA court

denies a petition without an evidentiary hearing, we “examine each issue

raised in the PCRA petition in light of the record certified before it in order to

determine if the PCRA court erred in its determination that there were no

genuine issues of material fact in controversy and in denying relief without



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conducting an evidentiary hearing.” Commonwealth v. Khalifah, 852 A.2d

1238, 1240 (Pa.Super. 2004).

      As discussed, the PCRA court properly found that appellant failed to

satisfy any of the statutory exceptions to the time-bar set forth in

Section 9545(b)(1).   Accordingly, we conclude that the PCRA court lacked

jurisdiction to consider the merits of appellant’s claim and discern no error on

the part of the PCRA court in dismissing appellant’s untimely petition without

conducting an evidentiary hearing.

      Lastly, appellant contends that the PCRA court erred in not allowing an

appointed counsel “to amend[] and perfect” his third, untimely pro se

petition. (Appellant’s brief at 13-14).

      It is well settled that a defendant has a rule-based right to

court-appointed counsel for the first PCRA petition. See Pa.R.Crim.P. 904(A);

Commonwealth v. Jackson, 965 A.2d 280, 283 (Pa.Super. 2009).

However, with respect to a second or subsequent PCRA petition, Rule 904(D)

governs:

            On a second or subsequent petition, when an
            unrepresented defendant satisfies the judge that the
            defendant is unable to afford or otherwise procure
            counsel, and an evidentiary hearing is required as
            provided in Rule 908, the judge shall appoint counsel
            to represent the defendant.

Pa.R.Crim.P. 904(D). The comment explains “the rule now limits appointment

of counsel on second or subsequent petitions so that counsel should be




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appointed only if the judge determines that an evidentiary hearing is

required.” Pa.R.Crim.P. 904 Comment (emphasis added).

      Here, there is no indication that the PCRA court appointed counsel let

alone determined that an evidentiary hearing was required for appellant’s

third, untimely PCRA petition.   Accordingly, appellant’s final claim of PCRA

court error is meritless.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 5/16/19




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