J-S40019-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                  Appellee                :
                                          :
             v.                           :
                                          :
LAVON CECIL SMITH,                        :
                                          :
                  Appellant               : No. 1627 WDA 2014

              Appeal from the PCRA Order September 16, 2014,
                 Court of Common Pleas, Allegheny County,
             Criminal Division at No(s): CP-02-CR-0014857-2000
                        and CP-02-CR-0015047-2000

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                               FILED JULY 8, 2015

       Lavon Cecil Smith (“Smith”) appeals from the September 16, 2014

order entered by the Allegheny County Court of Common Pleas dismissing

his third petition filed pursuant to the Post Conviction Relief Act, 42

Pa.C.S.A. §§ 9541-9546 (“PCRA”), as untimely. We affirm.

       On February 14, 2002, the trial court convicted Smith of first-degree

murder, attempted murder and aggravated assault for the stabbing death of

his wife and serious injury of his daughter.1 On May 14, 2002, the trial court

sentenced him to life in prison without the possibility of parole plus twenty to

forty years of imprisonment. Smith filed post-sentence motions and a direct

appeal, and this Court affirmed his judgment of sentence on January 6,




1
    18 Pa.C.S.A. §§ 2502(a), 901(a), 2702(a)(1).

*Retired Senior Judge assigned to the Superior Court.
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2004. The Pennsylvania Supreme Court denied his petition for allowance of

appeal on June 23, 2004.

        Smith filed a timely pro se PCRA petition on May 13, 2005. The PCRA

court appointed counsel, who ultimately filed a Turner/Finley2 no-merit

letter and a petition to withdraw as counsel.    On September 5, 2006, the

PCRA court granted counsel’s petition to withdraw and issued notice of its

intent to dismiss Smith’s petition without a hearing pursuant to Pa.R.Crim.P.

907.    The PCRA court dismissed the petition on October 16, 2006.      Smith

appealed the dismissal pro se, and this Court affirmed on October 2, 2007.3

Our Supreme Court denied his petition for allowance of appeal on July 23,

2008.

        Smith filed a second pro se PCRA petition on July 27, 2011. On August

19, 2011, the PCRA court issued a Rule 907 notice, and thereafter dismissed

the petition on September 21, 2011.      Smith again appealed this dismissal

pro se, and this Court affirmed on August 1, 2012. On December 26, 2012,

the Pennsylvania Supreme Court denied his request for allowance of appeal.

        Smith filed the instant pro se PCRA petition – his third – on April 7,

2014, alleging that Commonwealth witness Detective Christine Williams was


2
   Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3
    While Smith’s appeal from the dismissal of his first PCRA petition was
pending before this Court, the record reflects that on April 5, 2007, Smith
filed a pro se motion entitled “Motion for Ineffective Assistance of Counsel,”
upon which no action was taken by the lower court.


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biased in her investigation, as she knew the victims in this case and shared

the same last name as Smith’s deceased wife.         According to Smith, this

information constituted newly discovered facts and Brady4 material that the

Commonwealth withheld, entitling him to a new trial.          The PCRA court

appointed counsel, who filed a Turner/Finley no-merit letter and request to

withdraw.   The PCRA court issued a Rule 907 notice on May 5, 2014 and

dismissed the petition on September 16, 2014, permitting counsel to

withdraw.

       Smith filed a timely pro se notice of appeal. He raises the following

issues for our review, which we recite verbatim from the concise statement

of errors complained of on appeal included in his appellate brief5:

          A. Did not face and prima facie constitutional
             memorandum of law defeat the time bar which
             activated the court order?

          B. Was the enforcement of the appeal at the cost of
             Allegheny County by court order, evidence the
             petitioner hurdled the time bar with evidence and
             constitutional?



4
    Brady v. Maryland, 373 U.S. 83 (1963).
5
   Smith did not include a statement of questions involved section in his
appellate brief as required by Pa.R.A.P. 2116(a), and instead included at the
beginning of his brief the concise statement of errors complained of on
appeal that he filed pursuant to Pa.R.A.P. 1925(b). Although the failure to
comply with Rule 2116(a) would justify the dismissal of his appeal, see
Pa.R.A.P. 2101, 2116(a), we do not do so here based upon the manner by
which we decide this appeal. See Commonwealth v. Ryan, 909 A.2d 839,
841 (Pa. Super. 2006) (declining to find waiver despite violation of Rule
2116).


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         C. Did not race play a key role in not investigating,
            consulting or filing the court ordered appeal which
            would reveal a hate crime by his associate attorneys,
            the Commonwealth and the police?

         D. Was not the March 2, 2006 criminal complaint filed
            (copy enclosed) against the Commonwealth (8) eight
            years earlier, a sign of the evidence that would
            come, that a constitutional crime was being
            committed?

Smith’s Brief at 2.

      We review the denial of a PCRA petition on timeliness grounds

according to the following standard:

            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. The PCRA
            timeliness requirement, however, is mandatory and
            jurisdictional in nature. The court cannot ignore a
            petition’s untimeliness and reach the merits of the
            petition. Section 9545(b)(1) requires a petitioner to
            file a PCRA petition within one year of the date the
            judgment [became] final.

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013) (internal

citations and quotations omitted). “[A] judgment becomes final at the

conclusion of direct review, including discretionary review in the Supreme

Court of the United States and the Supreme Court of Pennsylvania, or at the

expiration of time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).

      The judgment of sentence in the case before us became final on

September 21, 2004 – ninety days after the Pennsylvania Supreme Court

denied Smith’s request for allowance of appeal.       See U.S.SUP.CT.R. 13




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(stating that a writ of certiorari is timely if filed within ninety days of the

entry of judgment by a state court of last resort or a federal court of

appeals). Thus, the instant PCRA petition, filed on April 7, 2014, is facially

untimely.

      Section   9545(b)(1)    provides   three    statutory    exceptions   to   the

timeliness provisions that allow for very limited circumstances under which

the late filing of a PCRA petition will be excused:

             (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.A. § 9545(b)(1). “Any petition invoking an exception provided in

paragraph (1) shall be filed within [sixty] days of the date the claim could

have been presented.”      42 Pa.C.S.A. § 9545(b)(2).         It is the petitioner’s

burden to plead and prove, by a preponderance of the evidence, that his

facially untimely petition falls under one of the three timeliness exceptions;

that he filed it within sixty days of the date it could have been presented;

and   that   the   information   could   not     have   been     obtained   earlier.



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Commonwealth        v.   Williams,   105   A.3d   1234,      1239   (Pa.   2014);

Commonwealth v. Ali, 86 A.3d 173, 178 (Pa. 2014), cert. denied sub

nom., Ali v. Pennsylvania, 135 S. Ct. 707 (U.S. 2014).

      As stated above, Smith attempts to invoke the first and second

exceptions to the PCRA time bar, alleging that the Commonwealth withheld

Brady material that also constituted newly discovered facts.         Specifically,

Smith asserts that Commonwealth witness Detective Christine Williams had

a “conflict of interest” as she and Smith’s wife allegedly grew up in the same

neighborhood, attended the same high school, and worshiped at neighboring

churches. See Smith’s Brief at 5. Smith contends that this information is

suggestive of a conspiracy between unnamed individuals and entities to

violate his constitutional rights and “withhold[] relevant identity evidence for

a total of almost a decade and a half.” See id. at 4-6. Assuming solely for

the sake of this argument that the information allegedly withheld meets the

pleading requirements for the time bar exceptions in section 9545(b)(1)(i)

and/or (ii), Smith included no indication in his PCRA petition of when he

became aware of this information. See PCRA Petition, 4/7/14. He likewise

fails to include any such averment in his brief on appeal.

      As Smith failed to satisfy his burden of proving that he became aware

of this information within sixty days of the date he filed his third PCRA

petition and that the information could not have been obtained earlier, the

PCRA court lacked jurisdiction to review the substantive claims raised. See



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Williams, 105 A.3d at 1239; Ali, 86 A.3d at 178; Taylor, 67 A.3d at 1248.

We therefore find no error in the PCRA court’s decision to dismiss Smith’s

third PCRA petition without a hearing.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/8/2015




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