J-S12003-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                         :   IN THE SUPERIOR COURT OF
\PENNSYLVANIA                            :        PENNSYLVANIA
                                         :
                                         :
                  v.                     :
                                         :
                                         :
 FABIAN DESMOND SMART                    :
                                         :   No. 1469 MDA 2017
                    Appellant            :

               Appeal from the PCRA Order August 24, 2017
    In the Court of Common Pleas of Clinton County Criminal Division at
                      No(s): CP-18-CR-0000175-2002


BEFORE: LAZARUS, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                           FILED MARCH 13, 2018

      Fabian Desmond Smart appeals from the trial court’s order dismissing

his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546. After careful review, we affirm.

      In 2004, a jury convicted Smart of first-degree murder, kidnapping and

conspiracy in connection with the 1999 beating death of Jason McCann. Smart

was sentenced to life in prison without the possibility of parole. Smart filed

an unsuccessful direct appeal to our Court, and, on May 1, 2007, our Supreme

Court denied his petition for allowance of appeal. Smart did not seek certiorari

in the United States Supreme Court. Smart filed a timely PCRA petition that

was denied after a hearing. Our Court affirmed that decision on a collateral

appeal. In 2009, our Supreme Court denied a petition for allowance of appeal.
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       On May 4, 2017, Smart filed the instant PCRA petition, his second. On

August 24, 2017, the trial court denied his petition. This timely appeal follows,

in which he raises the following issue for our review: “Did the trial court err

in dismissing [Smart’s] PCRA petition seeking relief under the United States

Supreme Court precedent in Pena-Rodriguez v. Colorado, 137 S. Ct. 855

(U[.]S[.] March 6, 2017)[,]1 due to [the] trial court being unclear as to the

decision’s retroactivity to allow individuals convicted previous to said decision

to set aside the “No[-]Impeachment” rule and challenge racial bias in jury

deliberations?” Appellant’s Brief, at 2.

       Instantly, Smart contends that that jurors at his trial exhibited racial

bias and that he is entitled to collateral relief from his judgment of sentence

under the new substantive rule2 of constitutional law announced in Pena-

Rodriguez.

____________________________________________


1 In Pena-Rodriguez, the United States Supreme Court held that where a
juror makes a clear statement that indicates he or she relied on racial
stereotypes or animus to convict a criminal defendant, the Sixth Amendment
of the United States Constitution requires that the no-impeachment rule give
way in order to permit the trial court to consider the evidence of the juror’s
statement and any resulting denial of the jury trial guarantee. 137 S. Ct. at
869. See also Pa.R.E. 606(b) (during inquiry into validity of verdict, juror
may only testify about whether prejudicial information not of record and that
which is beyond common knowledge and experience was improperly brought
to jury’s attention, or if outside influence improperly brought to bear on any
juror).

2 In fact, in Tharpe v. Sellers, 138 S. Ct. 545 (2018), the United States
Supreme Court recently stated that because Pena-Rodriguez “permits a trial
court ‘to consider [certain] evidence,’ . . . and does not alte[r] the range of



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       Before we can address the merits of Smart’s issue, we must begin by

examining the timeliness of his petition. The PCRA time limitations implicate

a court’s jurisdiction and may not be altered or disregarded in order to address

the merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267

(Pa. 2007). Under the PCRA, any petition for post-conviction relief, including

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

judgment of sentence becomes final, unless one of the following exceptions

set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

       (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


____________________________________________


conduct or the class of persons that the law punishes . . . , it cannot be a
substantive rule.” Id. at 551 (citations omitted). Moreover, the Supreme
Court acknowledged that the petitioner-defendant in Tharpe could not even
attempt to argue that Pena-Rodriguez established a watershed rule of
criminal procedure where the right to have a jury decide a defendant’s
eligibility for death does not count as such a rule. Id. at 552.

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          provided in this section and has been held by that court to
          apply retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). Moreover, any petition attempting to invoke

one of these exceptions “shall be filed within 60 days of the date the claim

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

      Here, Smart’s judgment of sentence became final on August 1, 2007,

when the time expired for him to file a writ of certiorari with the United States

Supreme Court. See Sup. Ct. R. 13. Thus, he had until August 1, 2008, to

file his petition.   Accordingly, his current petition, filed in 2017, is facially

untimely.    Consequently, for this Court to have jurisdiction to review the

merits of his claims, Smart must prove that he meets one of the exceptions

to the timeliness requirements set forth in 42 Pa.C.S. § 9545(b).

      Smart claims that his petition satisfies the timeliness exception of

section 9545(b)(1)(iii), by arguing that the holding of Pena-Rodriguez

applies retroactively and allows the court to inquire into jury deliberations on

collateral review where a juror indicates that he or she relied upon racial

stereotypes or animus in convicting a defendant. Smart’s reliance on Pena-

Rodriguez, however, does not satisfy the “new retroactive right” exception

of section 9545(b)(1)(iii). In Commonwealth v. Abdul-Salaam, 812 A.2d

497 (Pa. 2002), our Supreme Court held that:

      Subsection (iii) of [s]ection 9545 has two requirements. First, it
      provides that the right asserted is a constitutional right that was
      recognized by the Supreme Court of the United States or this
      [C]ourt after the time provided in this section. Second, it provides
      that the right “has been held” by “that court” to apply


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      retroactively. Thus, a petitioner must prove that there is a “new”
      constitutional right and that the right “has been held” by that court
      to apply retroactively. The language “has been held” is in the past
      tense. These words mean that the action has already occurred,
      i.e., “that court” has already held the new constitutional right to
      be retroactive to cases on collateral review. By employing the past
      tense in writing this provision, the legislature clearly intended that
      the right was already recognized at the time the petition was
      filed.

Id. at 501 (emphasis added).

      Because Smart’s PCRA petition is untimely, he must demonstrate that

the either the United States Supreme Court or the Pennsylvania Supreme

Court has held that Pena-Rodriguez applies retroactively in order to satisfy

section 9545(b)(1)(iii). See Abdul-Salaam, supra. Because at this time,

no such holding has been issued by the United States Supreme Court or our

Supreme Court, Smart cannot rely on Pena-Rodriguez to invoke that

timeliness exception.     Thus, the trial court properly dismissed Smart’s

untimely petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/2018




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