J-S08011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                                OF
                                                           PENNSYLVANIA
                             Appellee

                        v.

    CHARLES SMITH,

                             Appellant                    No. 4091 EDA 2017


            Appeal from the PCRA Order Entered December 11, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0513651-2000


BEFORE: BENDER, P.J.E., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                             FILED APRIL 25, 2019

        Appellant, Charles Smith, appeals pro se from the post-conviction

court’s December 11, 2017 order dismissing, as untimely, his third petition

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

9546. We affirm.

        The trial court summarized the procedural and factual history of this

case as follows:
        I. Procedure

               In December of 2017, this [c]ourt dismissed as untimely the
        third petition for post-conviction relief that was filed by [Appellant]
        in August of 2017.[1] [Appellant] then filed an appeal from this
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1  Before dismissing Appellant’s third petition, the PCRA court gave him
Pa.R.Crim.P. 907 notice of its intent to dismiss his petition. Appellant did not
file a response.
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       [c]ourt’s December 2017 order that dismissed his              PCRA
       [p]etition[, which is the subject of this present appeal].

              In December of 2001, this [c]ourt filed an opinion in support
       of [Appellant’s] judgment of sentence that was affirmed by the
       Superior Court in a memorandum decision in October [of] 2002.
       [Appellant] filed a petition for allowance of appeal with the
       [Pennsylvania] Supreme Court, which was denied in September of
       2003. Commonwealth v. Smith, 815 A.2d 1131 (Pa. Super.
       2002) (unpublished memorandum)[,] appeal denied, 833 A.2d
       142 (Pa. 2003). [Appellant] then had ninety … days to file a
       petition with the U.S. Supreme Court. [Appellant] did not file a
       petition with the U.S. Supreme Court, and [Appellant’s] judgment
       of sentence became final in December of 2003 — ninety … days
       after his right to petition the U.S. Supreme Court expired.

               [Appellant] filed his first petition under the [PCRA] in
       December of 2004. This [c]ourt dismissed that petition as
       untimely in January of 2006, and it entered an opinion in June of
       2006. The Superior Court affirmed [the] dismissal of [Appellant’s]
       first petition in Commonwealth v. Smith, 928 A.2d 1129 (Pa.
       Super. 2007) (unpublished memorandum), appeal denied, 931
       A.2d 658 (Pa. 2007). [Appellant] then filed a second [PCRA]
       petition in May of 2012[,] which this [c]ourt dismissed as untimely
       in September of 2013. This [c]ourt authored an opinion that was
       filed in June of 2014, and the Superior Court affirmed that decision
       in Commonwealth v. Smith, [131 A.3d 88 (Pa. Super. 2015)
       (unpublished memorandum)], appeal denied, … 134 A.3d 56
       ([Pa.] 2016).

       II. Facts[]

            After a one-day bench trial on April 24, 2001, [Appellant]
       was convicted of Aggravated Assault, Burglary, Criminal Trespass,
       Possession of an Instrument of a Crime, Unlawful Restraint,
       Simple Assault, Reckless Endangerment of Another Person, and
       False Imprisonment.[2]     The Commonwealth’s case against
       [Appellant] arose from allegations that he attacked his life-long
       acquaintance and former girlfriend, Rurri Blake.       To briefly
       summarize the essence of the facts supporting [Appellant’s]
       judgment of sentence in the most concise form:

____________________________________________


2 For these offenses, Appellant received an aggregate term of 20½-41 years’
imprisonment.

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           On June 29, 1997, at approximately 8:00 a.m., [Ms.]
        Blake[] was in the bathroom of her apartment getting
        herself ready to attend church. While in the bathroom, [Ms.
        Blake] heard a noise. As she walked down the hallway, she
        saw [Appellant] coming towards her…[.] As she cursed at
        [Appellant], he punched her in the face. A brief struggled
        ensued, and [Appellant] pushed [Ms. Blake] down onto her
        bed. While on top of her, [Appellant] proceeded to choke
        [her] with both hands. [Ms. Blake] could not breathe and
        shortly became unconscious. She gained consciousness
        upon feeling [Appellant’s] stabbing her repeatedly with a
        steak knife.

        [Appellant] picked up [Ms. Blake’s] daughter and placed
        them both in her bedroom. [Ms. Blake] was trapped in her
        bedroom with her daughter for approximately four days until
        a police officer arrived….

PCRA Court Opinion (PCO), 4/24/2018, at 1-2 (some internal citations

omitted).

     As mentioned by the PCRA court, Appellant filed a timely notice of appeal

from its order dismissing his third petition as untimely. The PCRA court did

not direct Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal.

     Appellant presently raises the following issues on appeal:
     I. Was the PCRA court the proper court to submit newly discovered
     evidence, with jurisdiction over such matters?

     II. Did the PCRA court abuse its discretion by dismissing
     [Appellant’s] PCRA petition without the benefit of an evidentiary
     hearing and stating [the] PCRA petition was untimely when case
     law supporting [Appellant’s] claim was submitted, along with new
     evidence within the proper time constraints?

     III. Did the court err in stating [Appellant] had not invoked any
     exception to the one[-]year jurisdictional timeliness requirement
     of the PCRA?




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      IV. Did the PCRA court err by dismissing [Appellant’s] prior PCRA
      issues despite the weight of the evidence presented without the
      benefit of an evidentiary hearing?

Appellant’s Brief at 5 (unnecessary capitalization omitted).

      At the outset, we note that our standard of review regarding an order

denying post-conviction relief is whether the findings of the court are

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

Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citations omitted).         We must

begin by addressing the timeliness of Appellant’s petition because “[t]he

PCRA’s time restrictions are jurisdictional in nature. … Without jurisdiction,

we simply do not have the legal authority to address the substantive claims.”

Id. (citations omitted).   With respect to timeliness, the PCRA provides, in

pertinent part, the following:
      (b) Time for filing petition.--

         (1) Any petition under this subchapter, including a second
         or subsequent petition, shall be filed within one year of the
         date the judgment becomes final, unless the petition alleges
         and the petitioner proves that:

            (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.


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42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, at the time Appellant’s petition

was filed, Section 9545(b)(2) required that any petition attempting to invoke

one of these exceptions “be filed within sixty days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).3

       In this case, as stated above, Appellant’s judgment of sentence became

final in December of 2003. Therefore, his present petition, filed in August of

2017, is patently untimely, and Appellant must meet one of the exceptions to

the timeliness requirement set forth in Section 9545(b)(1)(i)-(iii), supra.

       Appellant advances numerous allegations and theories for why he

satisfies the timeliness exceptions in his long-winded filings. We have gleaned

the following claims therefrom: (1) the Commonwealth failed to share

information it knew at the time of trial regarding Appellant’s health and that

his co-defendant’s case had been dismissed because a witness had lied, see

Appellant’s Brief at 14; PCRA Petition, 8/12/2017, at ¶¶ 23, 33; (2) Appellant’s

trial counsel ineffectively failed to call Appellant’s doctor to testify at trial, see

Appellant’s Brief at 15; PCRA Petition at ¶ 29; (3) Appellant’s trial counsel

ineffectively failed to investigate that Appellant had obtained a restraining

order against a woman named Sandra Garruad in the month before the

incident at issue, see Appellant’s Brief at 18; PCRA Petition at ¶ 30; (4) the

Commonwealth has failed to provide Appellant with access to his legal
____________________________________________


3 A recent amendment to Section 9545(b)(2), which became effective on
December 24, 2018, changed the language to require that a petition “be filed
within one year of the date the claim could have been presented.” 42 Pa.C.S.
§ 9545(b)(2).

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materials, as corrections officers in his housing unit destroyed his entire legal

file in 2008, see Appellant’s Brief at 22; PCRA Petition at ¶ 40; (5) Appellant

has obtained newly discovered medical records showing that, at the time of

the incident, Appellant was recovering from a surgery, see Appellant’s Brief

at 14-16, 21, 22-23; PCRA Petition at ¶¶ 44-48, 51; and (6) Appellant has

acquired newly discovered evidence from Valencia Roberts, a former resident

of Ms. Blake’s apartment building, stating that “the doors in the apartment

building … were not able to be kicked in and that the police had to use

battering rams to gain access[,]” see Appellant’s Brief at 17; PCRA Brief at ¶

43. We address the timeliness of each claim in turn.4


____________________________________________


4 To the extent Appellant raises other claims, we deem them waived. See In
re S.T.S., Jr., 76 A.3d 24, 41 (Pa. Super. 2013) (finding waiver where the
appellant’s “discussion contained in the argument section of his brief
addressing this issue is inadequate to provide meaningful appellate review. It
is well settled that the argument portion of an appellate brief must be
developed with pertinent discussion of the issue, which includes citations to
relevant authority”) (citations omitted). Further, it appears to us that
Appellant raises certain issues in his brief that he did not set forth in his
petition. See Appellant’s Brief at 18-19 (challenging, among other things, the
discretionary aspects of his sentence, the constitutionality of his extradition
hearing, and the effectiveness of his first PCRA counsel). It is well-established
that “[i]ssues not raised in the lower court are waived and cannot be raised
for the first time on appeal.” See Pa.R.A.P. 302(a). Further, if Appellant had
raised these issues below, he does not point us to where he did so. See
Pa.R.A.P. 2119(e) (“Where under the applicable law an issue is not reviewable
on appeal unless raised or preserved below, the argument must set forth, in
immediate connection therewith or in a footnote thereto, either a specific
cross-reference to the page or pages of the statement of the case which set
forth the information relating thereto as required by Pa.R.A.P. 2117(c), or
substantially the same information.”).



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       First,   Appellant   avers    that      the   Commonwealth   failed   to   share

information it knew at the time of trial regarding Appellant’s health and that

his co-defendant’s case had been dismissed because a witness had lied. See

Appellant’s Brief at 14; PCRA Petition at ¶¶ 23, 33. Appellant does not plead

or prove how this specific claim overcomes the jurisdictional time-bar.

Further, he does not contend that he filed his petition within 60 days of the

date this claim could have been presented pursuant to Section 9545(b)(2).

Thus, we do not have jurisdiction to review this issue.

       Appellant’s second and third claims allege the ineffectiveness of his trial

counsel. Appellant says his counsel failed to call his doctor to testify at trial,

and did not investigate a restraining order that Appellant had previously

obtained against a woman named Sandra Garruad. Appellant’s Brief at 15,

18; PCRA Petition at ¶¶ 29, 30.5 Again, Appellant does not plead or prove

how these particular claims meet a timeliness exception, and he does not state

that he filed his petition within 60 days of the date these claims could have

been presented pursuant to Section 9545(b)(2). Consequently, we do not

have jurisdiction to review these issues.

       Fourth, Appellant asserts that the Commonwealth has failed to provide

him with access to his legal materials, as corrections officers in his housing

unit destroyed his entire legal file in 2008.           Appellant’s Brief at 22; PCRA

____________________________________________


5Appellant explains that he could not protect himself against Ms. Garruad,
who he alleges was a much smaller individual than Ms. Blake. See Appellant’s
Brief at 18; PCRA Petition at ¶ 30.

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Petition at ¶ 40. Appellant does not plead or prove how this claim meets a

timeliness exception under Section 9545(b)(1).       Moreover, Appellant has

seemingly waited nearly ten years to present this claim, and it consequently

fails to satisfy Section 9545(b)(2). We therefore lack jurisdiction to review

this issue.

        Fifth, Appellant says he has obtained newly discovered medical records

that support that, when the alleged events occurred, he “was still in the

process of recovering and rehabbing” from an “invasive spinal surgery to

remove tumorous growths and mass and to repair nerve damage that was

hindering [his] mobility.” Appellant’s Brief at 16. Consequently, Appellant

insisted in his petition that “his condition and physical weakness precluded

him from traveling long distances and surely … breaking through a door….”

PCRA Petition at ¶ 51. He avers that “[t]he medical reports were sent to him

by Sheila Murdaugh. [Appellant] was unaware that emergency rooms kept

records of all admissions.” Appellant’s Brief at 22-23.6 He argues that this

claim fulfills the newly-discovered facts exception pursuant to Section

9545(b)(1)(ii).

        To qualify for the newly-discovered facts exception under Section

9545(b)(1)(ii), “a petitioner need only establish that the facts upon which the

claim is based were unknown to him and could not have been ascertained by


____________________________________________


6   Appellant does not elaborate on how he knows Sheila Murdaugh.



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the exercise of due diligence.” Commonwealth v. Burton (“Burton II”),

158 A.3d 618, 629 (Pa. 2017).7 Additionally, we note that “the focus of this

exception is on the newly discovered facts, not on a newly discovered or newly

willing source for previously known facts.” Commonwealth v. Brown, 111

A.3d 171, 176 (Pa. Super. 2015) (citation and internal quotation marks

omitted).    Here, Appellant obviously has known that, at the time of his

offenses, he was recovering from surgery and in poor physical condition.

Thus, these medical records are not a newly discovered fact, but instead

constitute a newly discovered source for previously known facts.        See id.

Further, in the exercise of due diligence, Appellant could have contacted his

hospital or doctor at an earlier point in time, and ascertained if either kept

medical records for him. See Burton I, 121 A.3d at 1071 (“[D]ue diligence

… requires reasonable efforts by a petitioner, based on the particular

circumstances, to uncover facts that may support a claim for collateral

relief.”). Finally, even if Section 9545(b)(1) were met, Appellant does not

establish that he filed his petition within 60 days of the date this claim could

____________________________________________


7 Appellant discusses Burton II, and this Court’s decision in Commonwealth
v. Burton (“Burton I”), 121 A.3d 1063 (Pa. Super. 2015) (en banc), at
length in his filings. In Burton I, this Court held that “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.” Burton I, 121 A.3d at 1071
(citations omitted). Further, our Supreme Court subsequently granted review
in that case, determining in Burton II that “the presumption that information
which is of public record cannot be deemed ‘unknown’ for purposes of
[S]ection 9545(b)(1)(ii) does not apply to pro se prisoner petitioners.”
Burton II, 158 A.3d at 638 (emphasis in original).

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have been presented pursuant to Section 9545(b)(2). Thus, this claim does

not satisfy the newly-discovered facts exception, and we lack jurisdiction to

review it.

      Finally, in his last claim, Appellant avers that he has obtained an affidavit

from Valencia Roberts, a woman who had lived in Ms. Blake’s apartment

building when the offenses took place, stating that the doors to the building

“were not able to be kicked in and that the police had to use battering rams

to gain access.” Appellant’s Brief at 17. She also conveyed that individuals

must pass through a security door to gain entrance to the building.            Id.

According to Appellant, “[t]his poses a direct challenge to the testimony of

how [he] allegedly gained entrance to the building and apartment.”           PCRA

Petition at ¶ 49. He further argues that this claim meets the newly-discovered

facts exception under Section 9545(b)(1)(ii).

      At the outset, Appellant failed to allege in his petition specifically when

he learned of the information contained in Valencia Roberts’s affidavit.

Instead, he stated:
      [Appellant] asserts that[,] although the affidavit was not[a]rized
      in December [of] 2015, and submitted in May [of] 2016, it had
      already been sent in to be preserved once it was received by
      [Appellant] to the Clerk of Courts and [the] PCRA [c]ourt by itself.
      [Appellant], however, does not have to have submitted anything
      because of the date it is marked. Information is tolled once
      [Appellant] learns of the document or information. Therefore,
      [p]etitioners have sixty days from that point to submit their
      findings to the [c]ourt….




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PCRA Petition at ¶ 52.8 This explanation does not satisfy Section 9545(b)(2),

which sets forth that “[a]ny petition invoking an exception … shall be filed

within 60 days of the date the claim could have been presented.” 42 Pa.C.S.

§ 9545(b)(2) (emphasis added).             As Appellant does not allege when he

learned of the information provided by Valencia Roberts in the affidavit, he

has not demonstrated that he meets the 60-day filing requirement.

       Moreover, Appellant has failed to allege and prove that this claim meets

the due diligence requirement of the newly-discovered facts exception. He

asserts that, “prior to receiving the affidavit, [he] attempted to obtain repair

records from the Philadelphia Housing Authority and records from the

Department of Human Services. The door should have needed repairs had it

actually been kicked in or forced in some way. … These requests went

unanswered and[,] therefore, were not among the items presented.”

Appellant’s Brief at 23. In this way, Appellant indicates that he had previously

been investigating the kicking in of the door.         Although the Philadelphia

Housing Authority and Department of Human Services allegedly would not

give Appellant the repair records, this does not explain why he could not have

learned about the building’s security and the fortitude of the doors earlier in
____________________________________________


8Appellant modifies this explanation slightly in his brief, stating that Valencia
Roberts sent the affidavit to the District Attorney’s Office, Philadelphia County
Clerk of Courts, and the PCRA court. Appellant’s Brief at 23. However, he
says that “[a]ll were returned to her and then to [Appellant] who then filed it
once he received the information.” Id. Appellant, however, does not provide
us with a specific date for when he received the information. This is
particularly problematic given that the affidavit was notarized on December
30, 2015, and Appellant did not file his petition until August of 2017.

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the exercise of due diligence.   Had Appellant made reasonable efforts to

uncover facts to support this claim, see Burton I, 121 A.3d at 1071, he would

have inquired about the building’s security, looked into what the doors were

made of, and reached out to residents of the building about their experiences

there, none of which he did. Accordingly, this claim also fails to meet the

newly-discovered facts exception.   Therefore, we conclude that Appellant’s

PCRA petition is time-barred and was properly dismissed.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/25/19




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