J-S65008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ANTHONY DUANE SMITH

                            Appellant                No. 1313 WDA 2015


                   Appeal from the PCRA Order July 15, 2015
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0016177-1999


BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                      FILED SEPTEMBER 09, 2016

        Anthony Duane Smith appeals pro se from the trial court’s order

denying his third petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546.1 After careful review, we affirm.

        On February 26, 2001, following a bench trial, the court convicted

Smith of first-degree murder and sentenced him to life imprisonment

without parole.     This Court affirmed the judgment of sentence on May 7,

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   The standard of review of an order denying a PCRA petition is whether
that determination is supported by the evidence of record and is free of legal
error. The PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record.       Commonwealth v.
Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012).
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2004, and our Supreme Court denied Smith’s petition for allowance of

appeal on October 12, 2004. On September 28, 2005, Smith filed his first

PCRA petition, which the court ultimately denied on February 15, 2008.

Smith appealed that decision and this Court affirmed the PCRA court on

December 16, 2008. Smith filed a second PCRA petition on April 25, 2012.

On June 22, 2012, the PCRA court issued its Pa.R.Crim.P. 907 notice of

intent to dismiss; Smith filed a response on September 6, 2012.           On

February 27, 2013, the PCRA court dismissed Smith’s petition as untimely.

Smith filed an appeal and this Court affirmed the PCRA court’s order on May

6, 2014, finding the petition untimely and no section 9545(b)(1) timeliness

exception applicable. See Commonwealth v. Smith, 548 WDA 2013 (Pa.

Super. 2014) (judgment order filed May 6, 2014).

      On October 17, 2014, Smith filed the instant PCRA petition, his third,

pro se. After the court issued its Rule 907 notice, the court permitted Smith

to file an amended petition.     On July 15, 2015, the court denied Smith’s

petition. This appeal follows.

      On appeal, Smith presents the following issues for our consideration:

      (1)   Whether the PCRA Court erred in denying petitioner’s PCRA
            Petition without an evidentiary hearing to allow the court
            to consider the testimony and reason why attorney Patrick
            J. Thomassey was ineffective by failing to submit
            Petitioner’s newly discovered exculpatory evidence under
            42 Pa.C.S. § 9543(a)(2)(iv) within the 60[-]day required
            time period, where Petitioner presented evidence that the
            affidavits w[ere] fax[ed] to attorney Patrick J. Thomassey
            within the exception codified at 42 Pa.C.S. §
            9545(b)(1)(ii).


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      (2)   Did PCRA Counsel render deficient performance where
            Petitioner’s PCRA petition raising newly/after discovered
            evidence was dismissed as untimely, due to PCRA
            counsel’s failure to submit [a] PCRA petition within 60 days
            of receiving newly/after discovered evidence?

      Generally, a petition for PCRA relief, including a second or subsequent

petition, must be filed within one year of the date the judgment is final. See

42 Pa.C.S.A. § 9545(b)(3); see also Commonwealth v. Alcorn, 703 A.2d

1054 (Pa. Super. 1997). There are, however, exceptions to the time

requirement, set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii). Where

the petition alleges, and the petitioner proves, that an exception to the time

for filing the petition is met, the petition will be considered timely. These

exceptions include interference by government officials in the presentation of

the claim, after-discovered facts or evidence, and an after-recognized

constitutional right.   See Commonwealth v. Gamboa-Taylor, 753 A.2d

780, 783 (Pa. 2000). A PCRA petition invoking one of these exceptions must

“be filed within 60 days of the date the claims could have been presented.”

Id; see also 42 Pa.C.S.A. § 9545(b)(2). The timeliness requirements of the

PCRA are jurisdictional in nature and, accordingly, a PCRA court cannot hear

untimely petitions.     Commonwealth v. Robinson, 837 A.2d 1157 (Pa.

2003).

      Instantly, Smith’s judgment of sentence became final, for purposes of

the PCRA, on January 10, 2005. Smith filed the current petition on October

17, 2014, more than nine years after his judgment of sentence became final.

Thus, Smith’s petition in facially untimely. 42 Pa.C.S.A. § 9545(b)(3). In


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his Pa.R.A.P. 1925(b) statement, Smith claims that prior counsel was

ineffective for failing to timely present two affidavits of witnesses, Lowery

and Andrews, which would have provided exculpatory evidence and entitled

him to a new trial.

       Allegations of ineffective assistance of counsel cannot overcome the

jurisdictional timeliness requirements of the PCRA. See Commonwealth v.

Wharton, 886 A.2d 1120, 1127 (Pa. 2005). See also Commonwealth v.

Murray, 753 A.2d 201 (Pa. 2000) (court properly dismissed untimely PCRA

petition claiming ineffectiveness for counsel’s failure to file direct appeal,

where    defendant     did   not    plead      and   prove   applicability   of   time-bar

exceptions).2     Therefore, Smith has failed to properly plead and prove an

exception to the PCRA time bar. Accordingly, the trial court properly denied

his third, untimely petition.

       Order affirmed.3
____________________________________________


2
  We note that in his prior PCRA petition and collateral appeal, Smith argued
that the PCRA court should have granted him an evidentiary hearing based
on the testimony provided in Lowery’s and Andrew’s affidavits. That claim is
the underlying substantive claim to his current ineffectiveness claim.
3
  To the extent that Smith’s amended petition raises the “newly discovered
evidence” exception (based on alleged statements made by Gregory Parker
to a privately-hired investigator) to the PCRA’s time bar provisions, we find
that he has not preserved this claim on appeal. Not only does Smith fail to
include that argument in his pro se brief, but he has also failed to include it
in his Rule 1925(b) statement. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not
included in the Statement and/or not raised in accordance with the
provisions of this paragraph (b)(4) are waived.”).




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2016




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