J-S09006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ROGER K. SNYDER,

                            Appellant                No. 2962 EDA 2016


                 Appeal from the PCRA Order August 29, 2016
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0003847-1977


BEFORE: SHOGAN, STABILE, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED FEBRUARY 28, 2017

       Appellant, Roger K. Snyder, appeals pro se from the order entered on

August 29, 2016, that denied his fifth petition for collateral relief filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

9546. We affirm.

       The PCRA court provided the following background:

       1.    On June 21, 1978, a jury found petitioner guilty of murder
       in the first degree and related offenses. He was subsequently
       sentenced to imprisonment for life.




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*
    Retired Senior Judge assigned to the Superior Court.
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       2.    The Supreme Court of Pennsylvania affirmed the judgment
       of sentence on December 17, 1981.[1]

       3.    In 1983, petitioner filed a federal habeas corpus petition
       seeking post-conviction collateral relief.[2] The District Attorney
       at the time was Joseph A. Smyth, Jr. who later became a judge
       of the Montgomery County Court of Common Pleas, and who
       now serves as a Senior Judge of the Montgomery County Court
       of Common Pleas.

       4.    On August 3, 1986, petitioner filed a petition under the
       Post-Conviction Hearing Act (the predecessor to the Post-
       Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546). This court
       denied the petition and the Superior Court of Pennsylvania
       affirmed that order. Petitioner filed a petition for allowance of
       appeal, but the Supreme Court of Pennsylvania denied it.

       5.     On December 19, 1996, petitioner filed a petition under
       the PCRA. Judge Smyth denied the petition, the Superior Court
       affirmed and the Supreme Court of Pennsylvania denied
       petitioner’s petition for allowance of appeal.

       6.    Petitioner then filed an application styled as a petition for
       writ of habeas corpus on November 30, 2007. That petition
       raised a single claim: that Judge Smyth should have recused
       himself from deciding the 1996 PCRA petition because he was
       the District Attorney at the time petitioner litigated his 1983
       federal habeas corpus petition. This court treated the application
       as a PCRA petition and denied it as untimely. The Superior
       Court affirmed that decision on March 25, 2009. Petitioner did
       not seek leave to appeal to the Supreme Court of Pennsylvania.


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1
    At the time of Appellant’s conviction, the Supreme Court had exclusive
jurisdiction over appeals in cases of felonious homicide.               See
Commonwealth v. Spotz, 896 A.2d 1191, 1218 n.30 (Pa. 2006)
(discussing the Supreme Court’s exclusive jurisdiction pursuant to 17 P.S. §
211.202(1), which was repealed by Act No. 137 of 1980 and codified at 42
Pa.C.S. § 722).
2
 Appellant’s petition for writ of habeas corpus was denied on February 9,
1984.



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       7.     Petitioner filed an application for post-conviction collateral
       relief, styled as a “Petition for Writ of Habeas Corpus”
       (hereinafter “the petition”) on September 4, 2013, again
       claiming Judge Smyth should have recused himself from deciding
       the 1996 PCRA petition. The undersigned judge denied the
       petition, the Superior Court of Pennsylvania affirmed that order,
       and the Supreme Court of Pennsylvania denied permission for
       allowance to appeal.

       8.    Petitioner then filed the instant application for post-
       conviction collateral relief on July 13, 2016.

       9.   In the instant PCRA petition, petitioner again claims Judge
       Smyth should have recused himself from deciding the 1996
       PCRA petition.

       10. The petition does not aver new evidence that would tend
       to establish petitioner’s innocence. Nor does the petition aver
       that government officials interfered with petitioner’s presentation
       of his claims; that the facts upon which the claim is based were
       unknown to petitioner; or that petitioner is asserting a
       constitutional right that has been recognized by the Supreme
       Court of the United States or the Supreme Court of
       Pennsylvania, and held to apply retroactively by the court that
       recognized it.

Order, 7/25/16, at 1-3.3         The PCRA court denied Appellant’s petition on

August 29, 2016, and Appellant filed this timely appeal.

       On appeal, Appellant presents one issue for this Court’s consideration:

       IS THE PETITIONER ENTITLED TO A NEW PCRA FILING
       PURSUANT TO THE UNITED STATES SUPREME COURT DECISION
       IN WILLIAMS V. PENNSYLVANIA, 2016 U.S. LEXIS 373 AS THE
       COURT HELD THAT IT WAS A VIOLATION OF THE DUE PROCESS
       CLAUSE FOR A FORMER DISTRICT ATTORNEY TO RULE AS A
       SITTING JUDGE IN HIS CRIMINAL CASE?
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3
   In its opinion filed pursuant to Pa.R.A.P. 1925(a), the PCRA court
incorporated the July 25, 2016 order by reference. Opinion, 9/23/16, at
unnumbered 1.



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Appellant’s Brief at 6 (verbatim).

      When reviewing the propriety of an order denying PCRA relief, this

Court is limited to determining whether the evidence of record supports the

conclusions of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). The PCRA

court’s findings will not be disturbed unless there is no support for them in

the certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa.

Super. 2014).

      Initially, we address whether this appeal is properly before us.    The

PCRA court dismissed Appellant’s petition as untimely. “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). Moreover, the timeliness of a

PCRA petition is a jurisdictional threshold that may not be disregarded in

order to reach the merits of the claims raised in a PCRA petition that is

untimely.     Commonwealth v. Cintora, 69 A.3d 759, 762 (Pa. Super.

2013). “We have repeatedly stated it is the [petitioner’s] burden to allege

and prove that one of the timeliness exceptions applies.          See, e.g.,

Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999). Whether [a

petitioner] has carried his burden is a threshold inquiry prior to considering

the merits of any claim.” Commonwealth v. Edmiston, 65 A.3d 339, 346

(Pa. 2013).

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       In order to be considered timely, a first or subsequent PCRA petition

must be filed within one year of the date the petitioner’s judgment of

sentence becomes final. 42 Pa.C.S. § 9545(b)(1). As noted above, since his

sentencing on May 11, 1979, Appellant has filed numerous petitions for

collateral relief;4 the instant petition, his fifth, is time-barred absent the

applicability   of   one    of   the    exceptions   enumerated   in   42   Pa.C.S.

§ 9545(b)(1).5



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4
  The 1995 amendments to the PCRA provided that if the petitioner’s
judgment of sentence became final before January 16, 1996, a PCRA petition
could be filed within one year, or by January 16, 1997. However, this grace
period does not apply to second or subsequent petitions, regardless of when
the first petition was filed. Commonwealth v. Fairiror, 809 A.2d 396, 398
(Pa. Super. 2002).
5
    The exceptions to the timeliness requirement 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;

       (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), (ii), and (iii).



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      A petition invoking one of these exceptions must be filed within sixty

days of the date the claim could first have been presented.        42 Pa.C.S.

§ 9545(b)(2). In order to be entitled to the exceptions to the PCRA’s one-

year filing deadline, “the petitioner must plead and prove specific facts that

demonstrate his claim was raised within the sixty-day time frame” under

section 9545(b)(2).   Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa.

Super. 2001).     “If the 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. Perrin, 947 A.2d 1284,

1285 (Pa. Super. 2008).

      Here, Appellant claims that Williams v. Pennsylvania, ___U.S.___,

136 S.Ct. 1899, 1907 (2016), created a new constitutional right, and

therefore, an exception to the PCRA time-bar pursuant to 42 Pa.C.S. §

9541(b)(1)(iii) is applicable. Appellant’s Brief at 8-9. We disagree.

      In Williams, the United States Supreme Court stated that “The

involvement of multiple actors and the passage of time do not relieve the

former prosecutor of the duty to withdraw in order to ensure the neutrality

of the judicial process in determining the consequences that his or her own

earlier, critical decision may have set in motion.” Williams, ___U.S. at ___,

136 S.Ct. at 1907.     Appellant asserts that pursuant to Williams, Judge




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Smyth was obligated to recuse from considering Appellant’s 1996 PCRA

petition.

       After review, it is undisputed that Judge Smyth served as an Assistant

District Attorney and District Attorney when Appellant litigated collateral

petitions, and that Judge Smyth later ruled on Appellant’s 1996 PCRA

petition.    However, Appellant has not established that the holding in

Williams has been held to apply retroactively pursuant to 42 Pa.C.S. §

9545(b)(1)(iii). As such, Appellant’s fifth PCRA petition is untimely, and no

exceptions are applicable.6

       In conclusion, because Appellant’s PCRA petition was untimely and no

exceptions apply, the PCRA court correctly determined that it lacked

jurisdiction to consider the merits of Appellant’s PCRA petition and properly

dismissed it as untimely filed. Perrin, 947 A.2d at 1285. Accordingly, we

affirm the PCRA court’s order. Commonwealth v. Lawson, 90 A.3d 1, 8

(Pa. Super. 2014).

       Order affirmed.




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6
  We note, however, that even if Williams applied, Appellant failed to
articulate how or in what capacity Judge Smyth was involved with his case
or that Judge Smyth made any “critical decision” at trial, on appeal, or in
any collateral proceeding as a prosecutor. Williams, 136 S.Ct. at 1907.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/28/2017




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