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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

CHRISTOPHER SMITH

                         Appellant                 No. 3542 EDA 2015


                Appeal from the PCRA Order October 30, 2015
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-1115931-1991


BEFORE: BOWES, MOULTON AND MUSMANNO JJ.

MEMORANDUM BY BOWES, J.:                        FILED JANUARY 30, 2017

      Christopher Smith appeals pro se from the order entered October 30,

2015, denying his PCRA petition as untimely. We affirm.

      The facts of this case were set forth in the Pa.R.A.P. Rule 1925(a)

opinion filed for purposes of direct appeal.

      On 19 September 1991 at 11:00 P.M., on the corner of 52nd and
      Haverford Avenues in Philadelphia, the defendant Christopher
      Smith and another unapprehended man tentatively referred to
      as “Marcus McDowell,” shot to death James Williams, a heavy-
      set man in his thirties.          Co-defendant Kevin Fitzpatrick
      participated in this incident by agreeing to act as a look-out.

      On the night in question, although it was raining, the defendant
      and Marcus sat on the steps outside of a Chinese food restaurant
      in the vicinity of 52nd and Haverford. The young co-defendant
      Fitzpatrick stood nearby and kept watch as he was instructed to
      do by Marcus. The three men were observing James Williams,
      who was purchasing food from the Chinese restaurant and beer
      from a nearby bar. As Mr. Williams left the restaurant with his
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       food and his beer, the defendant and Marcus left their station
       and approached the decedent from behind. One of the two men
       pulled out a large silver revolver and pointed it at Mr. Williams’
       head. After a brief conversation, the gunman pulled the trigger
       and Mr. Williams fell.      As he lay in the street, the two
       perpetrators took his belongings and left.

Trial Court Opinion, 12/14/93, at 2-3 (citations omitted). In the weeks that

followed the murder, Appellant and Fitzpatrick were apprehended. Appellant

gave a statement admitting his involvement in the incident, but claimed that

Marcus McDowell shot the victim. N.T., 10/7/92, at 184-89.

       Appellant and Fitzpatrick elected to proceed to a joint bench trial,

where Appellant was found guilty of, inter alia, second-degree murder and

was sentenced to life imprisonment.1              After sentencing, Appellant filed a

direct appeal, and we affirmed, Commonwealth v. Smith, 655 A.2d 1049

(Pa.Super. 1994). Appellant did not seek further review. He timely sought

PCRA relief, which was ultimately denied. We affirmed on August 27, 1998.2

Commonwealth v. Smith, No. 2849 Philadelphia 1997 (unpublished

memorandum)         (Pa.Super.     1998).      Appellant    subsequently   filed   two



____________________________________________


1
    The PCRA judge herein did not preside over this proceeding.
2
  Appellant’s sentence was final before the 1995 amendments to the current
PCRA became effective. The legislature provided a one-year grace period
from the time constraints of filing a PCRA petition, from January 16, 1996 to
January 16, 1997, for petitioners whose judgment of sentence preceded the
PCRA. See Commonwealth v. Alcorn, 703 A.2d 1054 (Pa. 1997).



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additional petitions for PCRA relief, both of which were dismissed due to the

failure to file a brief.

       The instant proceedings commenced on May 1, 2015, when Appellant

filed a motion attaching an April 21, 2015 affidavit from an inmate, Steven

Guilford, who stated the following. While engaged in small talk in the prison

yard, Guilford informed Appellant that he grew up in West Philadelphia.

Appellant then asked Guilford if he knew Marcus McDowell; Guilford replied

that he did, but said Marcus’s real name is Mark Kevin McDowell. Guilford

further stated that he heard McDowell was involved in a murder. Guilford

wrote that Mark McDowell has a twin brother, Anthony.         The twin told

Guilford at some unspecified point in time that the police moved Mark to

Williamsport and “got him out of” the murder.3



____________________________________________


3
  We have reviewed the trial transcript and note that the detective who took
Appellant’s statement was asked on cross-examination about McDowell’s
possible involvement. Appellant’s attorney stated that he possessed a
statement by “Kevin” McDowell. N.T., 10/7/92, at 204. The detective was
asked if this individual was actually Marcus McDowell. Id. The detective
testified that he was not involved with speaking to that individual. However,
he stated that, “To the best of my recollection, at some later point we found
out that the Marcus McDowell we actually were looking for was the fellow
that we had in that night with a different name.” Id. at 204-05.

Appellant’s theory appears to be that the Commonwealth deliberately
released McDowell in exchange for information that Appellant was involved
and suppressed his true name as well as the existence of some type of deal.




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           On September 17, 2015 the court issued its notice of intent to dismiss

without a hearing. Appellant responded by filing an objection on October 6,

2015.        This timely appeal followed the October 30, 2015 dismissal of

Appellant’s petition for PCRA relief. The PCRA court did not order Appellant

to file a Pa.R.A.P. 1925(b) statement of matters complained of on appeal.

The following issues are presented for our consideration.

     I.       Did the PCRA court err by not finding that the Commonwealth
              violated Brady v. Maryland4 when the Commonwealth failed
              to disclose the true identity of alleged co-conspirator, Marcus
              McDowell?

     II.      Did the PCRA court err by not finding that the Commonwealth
              and government violated Brady v. Maryland when the
              Commonwealth failed to disclose a substantial benefit given
              to alleged co-conspirator, Marcus McDowell?

     III.     Did the PCRA court err by not granting Appellant’s application
              for leave to pursue discovery pursuant to Pennsylvania Rule
              of Criminal Procedure 902(E)(1) and in failing to grant that
              discovery request the PCRA violated Appellant’s right to due
              process under the Fourteenth Amendment?

Appellant’s brief at 8.

           Initially, we observe that our review of the denial of a PCRA petition is

well-settled.      “In reviewing the denial of PCRA relief, we examine whether

the PCRA court's determination is supported by the record and free of legal

error.” Commonwealth v. Mitchell, 141 A.3d 1277, 1283-83 (Pa. 2016)

(quotation and citation omitted).
____________________________________________


4
    Brady v. Maryland, 373 U.S. 83 (1963).



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      The timeliness of a petition implicates the PCRA court’s ability to

adjudicate the controversy.     If a PCRA petition is untimely, “neither this

Court nor the trial court has jurisdiction over the petition.” Commonwealth

v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted).          We

review that legal conclusion de novo.      Id.   A PCRA petition, including a

second or subsequent petition, must be filed within one year of the date that

the judgment of sentence becomes final unless an exception applies.         42

Pa.C.S. § 9545(b)(1).

      Appellant’s sentence became final in 1994.        Thus, the petition is

timely only if one of the statutory exceptions applies. These exceptions 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;

      (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).

      Herein, Appellant’s petition jointly invokes the § 9545(b)(1)(i) and (ii)

exceptions.    The § 9545(b)(1)(ii) exception requires the petitioner to

establish (1) that the facts upon which the claim was predicated were



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unknown and (2) that the facts could not have been discovered through the

exercise of due diligence. Commonwealth v. Bennet, 930 A.2d 1264, 1272

(Pa. 2007). We do not conduct a merits-based analysis of the actual claim.

See Commonwealth v. Cox, 146 A.3d 221, 229, n.11 (Pa. 2016)

(describing the function of § 9545(b)(1)(ii) as that of a “gatekeeper . . .

limited to considering only the existence of a previously unknown fact that

would allow a petitioner to avoid the strict one year time-bar.”). A petition

invoking any of these exceptions must be filed within sixty days of the date

the claim could have been presented. 42 Pa.C.S. § 9545(b)(2).

      Instantly, Appellant contends that he presented the newly-discovered

facts within sixty days, as the Commonwealth failed to disclose McDowell’s

true identity and the purported favorable treatment during discovery in

violation of Brady v. Maryland, 373 U.S. 83 (1963).      “Although a Brady

violation may fall within the governmental interference exception, the

petitioner must plead and prove the failure to previously raise the claim was

the result of interference by government officials, and the information could

not have been obtained earlier with the exercise of due diligence.”

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008).

Furthermore, as with the newly-discovered evidence exception, we do not

conduct a merits analysis of the underlying Brady claim in resolving a

timeliness inquiry.   Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa.

2008).

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     The PCRA court explained its reasons for deeming the petition

untimely as follows.

     Petitioner, who confessed to participating in the crime, failed
     however to demonstrate that the identity of his alleged co-
     conspirator was unascertainable with the exercise of due
     diligence. Instead, Petitioner outright dismissed his obligation of
     demonstrating due diligence by baldly asserting that Marcus’s
     “true identity” was undiscoverable because the government
     actively suppressed the information. Petitioner ignored the fact
     that according to Mr. Guilford’s affidavit, Mr. McDowell was
     known as Marcus by his family and friends. Thus, despite
     Petitioner’s complicity in the offense and awareness of his co-
     conspirator’s widely-acknowledged alias, he nevertheless
     rejected his obligation under subsection 9545(b)(1). Petitioner’s
     unfounded speculation of a governmental cover-up did not
     relieve him of his burden to demonstrate due diligence.
     Petitioner thus failed to establish timeliness under either cited
     PCRA subsection.

Trial Court Opinion, 12/15/15, at 4-5.

     We agree that Appellant has failed to demonstrate that he acted with

due diligence in ascertaining his alleged co-conspirator’s true name.

Appellant has failed to establish why he could not have learned McDowell’s

legal name through due diligence, nor has he attempted to establish that the

government interfered with his ability to do so.      Indeed, our review of

Appellant’s statement shows that Appellant identified McDowell in a photo

array and stated, “I heard that he told the cops that I shot the guy.” N.T.,

10/7/92, at 185. Nothing prevented Appellant from investigating McDowell’s

involvement.




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      More significantly, we note that the facts upon which the claim is

predicated goes far beyond the mere fact of McDowell’s name. As reflected

in Appellant’s second claim on appeal, he alleges that the “Commonwealth

failed to disclose a substantial benefit given to alleged co-conspirator,

Marcus McDowell.” Appellant’s brief at 8.

      However, this alleged deal is not demonstrated by the affidavit.     In

Commonwealth v. Brown, 141 A.3d 491 (Pa.Super. 2016), we examined

an affidavit wherein the writer alleged that a third party, Tommy Lemon,

confessed to the litigant’s crime.      Id. at 501.     We concluded that the

affidavit did not constitute a newly-discovered fact.

      We conclude that [the affidavit] does not constitute a newly-
      discovered fact. We find instructive our Supreme Court's decision
      in Commonwealth v. Yarris, 557 Pa. 12, 731 A.2d 581 (1999).
      In Yarris, the petitioner sought to invoke the newly-discovered
      fact exception to the PCRA's timeliness requirement. He relied
      upon an affidavit by an individual who said that she heard
      another individual, not the petitioner, confess to the murder for
      which the petitioner had been convicted. Our Supreme Court
      held

              that the evidence which purportedly reveals that
              someone other than [the petitioner] committed the
              murder is hearsay, not within any exception, and so
              unreliable as to be inadmissible. A claim which rests
              exclusively upon inadmissible hearsay is not of a
              type that would implicate the [newly-discovered fact]
              exception to the timeliness requirement, nor would
              such a claim, even if timely, entitle [the petitioner]
              to relief under the PCRA.

Id. at 592.




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      The alleged confession by Tommy Lemon is hearsay as it is an
      out-of-court statement offered for the truth of the matter
      asserted. See Pa.R.Evid. 801(c). Any argument that Tommy
      Lemon's confession was a statement against interest fails
      because “for this exception to apply, the declarant must be
      unavailable as a witness, see Pa.R.Evid. 804(b), and [A]ppellant
      offers no proof [Lemon] is not available.

Id. at 501–02 (alterations in original). Herein, the affidavit does not even

present a purported confession by a third party overheard by the affidavit-

writer/witness.    Rather, Appellant avers that Guilford could testify to

speculation by McDowell’s brother that the police covered up McDowell’s

involvement in the murder.      This alleged fact does not fall under the

pertinent exception.

      Next, we address Appellant’s assertion that the PCRA court erred by

denying his request for discovery. His pro se petition sought two items: any

statements by McDowell from the interview that took place on September

28, 1991, and the contract that afforded McDowell his freedom.           PCRA

Petition, 5/1/15, at 7.

      Discovery in non-capital cases is permitted only upon leave of court

after a showing of exceptional circumstances. Pa.R.Crim.P. 902(E)(1). That

phrase is not defined, and it is “for the trial court, in its discretion, to

determine whether a case is exceptional and discovery is therefore

warranted.” Commonwealth v. Frey, 41 A.3d 605, 611 (Pa.Super. 2012).




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      However, while Rule 902(E) applies at “any stage of the proceedings,”

we explained in Commonwealth v. Johnston, 42 A.3d 1120 (Pa.Super.

2012), that the ability to grant discovery is conditioned on jurisdiction.

      However, the PCRA Court's ability to order discovery is precluded
      by the lack of jurisdiction demonstrated by the failure of the
      Appellants to satisfy the § 9545(b)(1)(ii) exception to the time-
      bar. As has been routinely stated by the Supreme Court of
      Pennsylvania, “[t]he PCRA's timeliness requirements are
      jurisdictional in nature and must be strictly construed; courts
      may not address the merits of the issues raised in a petition if it
      is not timely filed.”

      We, therefore, conclude that Appellants' second pro se PCRA
      petitions were untimely, and that they failed to meet an
      exception to the PCRA timeliness requirements. Because the
      PCRA court below lacked jurisdiction, it was precluded
      from entertaining a motion for PCRA discovery.

Id. at 1130 (citations omitted, emphasis added).          Thus, the court was

precluded from entertaining Appellant’s motion and no error inhered in

denying that request. Additionally, while Appellant claims the denial of his

request violated his constitutional due process rights, that argument is not

developed in any fashion. “While this Court may overlook minor defects or

omissions in an appellant’s brief, we will not act as his or her appellate

counsel.” Commonwealth v. Freeman, 128 A.3d 1231, 1249 (Pa.Super.

2015) (citing Bombar v. W. Am. Ins. Co., 932 A.2d 78, 93 (Pa.Super.

2007)).

      Finally, we address Appellant’s September 19, 2016 Application for

Relief, which requests that we reverse the judgment of the PCRA court due



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to the Commonwealth’s failure to file a timely brief.        Appellant correctly

notes that the Commonwealth did not comply with our July 21, 2016 per

curiam order, which granted a second extension of time to file a brief, with a

due date of August 15, 2016. The order specifically stated that no further

extensions would be granted absent extraordinary circumstances.               The

Commonwealth did not file its brief until September 16, 2016 and did not

seek an extension.

      While we disapprove of the Commonwealth flouting our order,

Appellant is not entitled to a windfall.      The applicable Rule of Appellate

Procedure states:

      If an appellant fails to file his designation of reproduced record,
      brief or any required reproduced record within the time
      prescribed by these rules, or within the time as extended, an
      appellee may move for dismissal of the matter. If an appellee
      fails to file his brief within the time prescribed by these rules, or
      within the time as extended, he will not be heard at oral
      argument except by permission of the court.

Pa.R.A.P. 2188.      Thus, an appellee may move for dismissal due to an

untimely brief, but an appellant may not. Moreover, we did not consider the

Commonwealth’s brief in reaching our decision.         See Commonwealth v.

Tisdale, 100 A.3d 216, 217, n.4 (Pa.Super. 2014) (arguments advanced in

untimely Commonwealth brief will not be considered). Hence, we deny the

application.

      Application for Relief denied. Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/30/2017




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