J-S54040-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANTHONY TUSWEET SMITH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 382 WDA 2017

Appeal from the PCRA Order February 10, 2017

In the Court of Common Pleas of Beaver County 

Criminal Division at No(s): CP-04-CR-0000147-2005, 

CP-04-CR-0000967-2001, CP-04-CR-0001148-2005, 

CP-04-CR-0001151-2005

BEFORE: OTT, MOULTON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 14, 2017

Appellant, Anthony Tusweet Smith, appeals pro se from the order 

entered in the Beaver County Court of Common Pleas dismissing his fifth 

Post Conviction Relief Act1(“PCRA”) petition as untimely. Appellant claims 

that governmental interference precluded him from obtaining exculpatory 

evidence. We affirm.

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*

Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546. 
J-S54040-17

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 We adopt the facts and procedural history set forth by the PCRA 

court’s opinions.2 See PCRA Ct. Op., 12/13/16, at 1-2;3PCRA Ct. Op., 

2/10/17, at 1. Appellant raises the following issues for review:

I. Whether Title 42 Pa.C.S.A. § 9545(b)(1)(i)(ii)(2) 

provides remedy for PSP denial of subpoena for 

exculpatory PSP-PRI’s[4] & PSP-GIR’s[5]in violation of the 

demand rights of Pennsylvania Constitution Article I § 9, 

informed rights of united states constitution amendment VI 

and due process rights of United States Constitution 

Amendment XIV? 

II. Whether the time constraint of title 42 Pa.C.S.A. § 9545 

(b)(2) ignores the time attributed to the continuing nondisclosure of exculpatory PSP-PRI’s & PSP-GIR’s denying 

[Appellant] opportunity of subpoena in violation of 

Pennsylvania and U.S. constitutions?

III. Whether an evidentiary hearing is required to 

substantiate partial PSP-PRI’s were provided to trial 

counsel that propelled the presentation of evidence from 

PSP case(s) other than [Appellant’s]?

IV. Whether judgment of sentence violates Pennsylvania 

and United States constitutions where prosecutors arrest 

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2 We note the PCRA court’s Pa.R.Crim.P. 907(1) opinion states, in the first 

paragraph, that the instant PCRA petition is Appellant’s fourth. However, as 

recognized by the PCRA court, on page two of its opinion, the instant PCRA 

petition represents Appellant’s fifth petition. 

3 The PCRA court filed a Pa.R.A.P. 1925(a) opinion on April 4, 2017 wherein 

the court specifically incorporated the reasoning set forth in its December 

13, 2016 Rule 907 opinion and order and its February 10, 2017 final opinion 

and order. 

4

“PSP-PRI” refers to Pennsylvania State Police-Property Record of Incident. 

5

“PSP-GIR” refers to Pennsylvania State Police-General Investigation 

Report.
J-S54040-17

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and imprison [Appellant] through the use of a false report, 

testimony & evidence that has undermined the truth 

determining factors of the trial court and all previous 

counsel? 

Appellant’s Brief at 4. 

After careful consideration of Appellant’s brief, the record, and the 

decisions of the PCRA court, we affirm on the basis of the PCRA court’s 

opinions. See PCRA Ct. Op., 12/13/16 at 3-6; PCRA Ct. Op., 2/10/17, at 1-

3 (holding that the PCRA court lacked jurisdiction to review the merits of 

Appellant’s petition where Appellant’s fifth PCRA petition is facially untimely 

and he failed to plead and prove any of the statutory exceptions to the 

PCRA’s time bar). Accordingly, we affirm the PCRA court’s dismissal of 

Appellant’s petition. 

 Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/14/2017
J-S54040-17

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AP pAt,50Ece&Nt OMMIN 

IN THE COURT OF COMMON PLEAS OF BEAVER COUNTY 

PENNSYLVANIA 

CRIMINAL DIVISION-LAW 

COMMONWEALTH OF 

PENNSYLVANIA 

vs, NOS. 967-2001; 147, 

1148, 1151-2005 

ANTHONY TUSWEET SMITH 

H. KNAFELC, J. December 13, 2016 

OPINION & ORDER 

Petitioner, Anthony Tusweet Smith, filed a fourth Post -Conviction Relief 

Act petition, in which he alleges that the conduct of the Pennsylvania Attorney 

General improperly influenced her Office's failure to disclose records to Petitioner. 

The untimeliness of the petition precludes this Court's evaluation of the merits, and 

this opinion and order shall serve as notice of this Court's intent to dismiss 

pursuant to Pennsylvania Rule of Criminal Procedure 907(1). 

I. Procedural, History 

The relevant procedural history of Petitioner's case is as follows. On March 

5, 2002, folloWing a jury trial, the Defendant was convicted of aggravated assault 

and criminal attempt to commit homicide. On April 17, 2002, the Defendant was 

Page 1 of 7 
sentenced to 120 to 240 months of incarceration. The judgment of sentence was 

affirmed by the Superior Court of Pennsylvania on February 3, 2004. The 

Defendant filed a timely petition for allowance of appeal to the Supreme Court of 

Pennsylvania, which was denied on July 1, 2004. The Defendant did not seek 

review by the Supreme Court of the United States. 

The Defendant filed his first, counseled, PCRA petition on September 20, 

2005. Following a heating, the PCRA was denied on November 5, 2007, and the 

Defendant did not appeal. The Defendant filed a second, pro se PCRA petition on 

June 3, 2008. The pettin was dismissed on September 22, 2008. He filed a third 

PCRA petition on Augtist 28, 2013. His third PCRA petition was found to be 

untimely, and'the Court therefore denied the petition. The Superior Court affirmed 

the order denying the petition. A Petition for Allowance of Appeal filed with the 

Pennsylvania Supreme Court was denied on December 30, 2014. Defendant filed 

his fourth PCRA petition on November 23, 2015. Defendant's fourth PCRA 

petition was dismissed by order of this Court on February 2, 2016. Defendant 

timely appealed the order dismissing his fourth PCRA; however, the Superior 

Court affirmed the order of the PCRA court on September 12, 2016. 

Defendant's fifth PCRA petition is npw under review. That petition was 

filed on October 24, 20.16, and substantially alleges the same matters as his 

previous PCRA petitions. 

Page 2 of 7 
II. Jurisdiction 

A threshold inquiry in reviewing a PCRA petition is whether the reviewing 

court has jurisdiction to rule on the merits of the Petitioner's claims. The 

postconviction court only has jurisdiction overly timely PCRA petitions. If a 

petition is untimely, the postconviction court has no jurisdiction to address 

substantive claims. Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa. Super. 

Ct. 2013) ("if a PCRA petition, neither [the Superior Court] nor the [PCRA] court 

has jurisdiction over the petition"). 

A reviewing court's jurisdiction is defined explicitly by statute. The Post - Conviction Relief Act provides that any petition, including a second or subsequent 

petition, must be filed within one year of the date the judgment becomes final, 

unless an exception applies. 42 Pa. C.S.A. § 9545(b)(1). Unless the petitioner can 

show that his or her petition is timely, the Court lacks jurisdiction to address the 

petition's merits. Commonwealth v. Cintora, 69 A.3d 759, 762 (Pa. Super. Ct. 

2013). 

A petition is timely in two situations: The first is where the petition is filed 

within one year of the date that the judgment became final. A judgment becomes 

final for purposes of PCRA review at the conclusion of direct review, including 

discretionary review of the Supreme Court of the United States and the Supreme 

Page 3 of 7 
Court of Pennsylvania, or at the expiration of time for seeking the review. 42 Pa. 

Cons. Stat. § 9545(b)(3). 

The second is where the Petitioner can plead and prove that one of the 

statutory exceptions to the one-year time bar is applicable. Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012). The Act lists three exceptions to the one-year 

rule. An otherwise untimely petition may nevertheless be considered if the petition 

alleges and the petitionerproves 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 theConstitution 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; 

(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 provided in this section has been held by 

that court to apply retroactively. 

42 Pa. C.S.A..§ 9545(b)(1)(i)-(iii); see also Commonwealth v. Fairy, 737 A.2d 214, 

218 (Pa. 1999). Any petition invoking one of these exceptions must be filed within 

60 days of the date .,the claim could have been presented. 42 Pa. C.S.A. § 

9545(b)(2). 

It is clear that the petition sub judice does not comport with these 

requirements. The Petitioner's judgment became final on or about September 29, 

Page 4 of 7 
2004, ninety-one days after his Petition for Allows of Appeal was denied by the 

Supreme Court of Pennsylvania and he declined to seek review by the Supreme 

Court of the United States. See U.S. Sup. Ct. R. 13(1) ("a petition for a writ of 

certiorari to review a judgment in any case, civil or criminal, entered by a state 

court of last resort is timely when it is filed with the Clerk of this Court within 

90 days after entry of the judgment"). Petitioner therefore had until September 29, 

2005, to file a timely PCRA petition. 

The Defendant therefore must show that he qualifies under the statute's 

exceptions. The Defendant has failed to plead and prove any of these statutory 

exceptions. Defendant'S instant petition is substantially the same as his fourth 

petition, the dismissal, of which was upheld by the Superior Court in its order of 

September 12,2016, wherein the Superior Court found Defendant ". . . failed to 

demonstrate tliat he has discovered any fact related to his conviction or sentence."' 

Given the identical nature of the claims in Defendant's fourth and fifth petitions, 

this Court finds that the issues presented in Defendant's instant petition have been 

previously litigated and found to be without merit. 

Therefore, having found that this Court lacks jurisdiction to grant 

Petitioner's request for relief, this Court is satisfied that there are no genuine issues 

concerning any material fact and the Petitioner is not entitled to post -conviction 

Com v. Smith, 1%lo.,322 WDA 2016, p. 7 (Sept. 12, 2016), 

Page 5 of 7 
collateral relief Pa. R. Crim. P. 907(1). The Court thus issues notice of its intent to 

dismiss the petition. Pursuant to Pennsylvania Rule of Criminal Procedure 907(1), 

the defendant May respond to this proposed dismissal within 20 days of this notice. 

An order is attached in compliance with Pennsylvania Rule of Criminal Procedure 

907(4). 

Page 6 of 7 
H Qirculated 08/25/2017 05:03 PM 

ORDER- PCRA DISMISSED 

IN THE COURT OF COMMON PLEAS OF BEAVER COUNTY 

PENNSYLVANIA 

CRIMINAL DIVISION-LAW 

COMMONWEALTH OF 

PENNSYLVANIA 

vs. 

ANTHONY TUSWEET SMITH 

NOS. 967-2001; 147, 

1148, 1151-2005 

H. KNAFELC, J. February 10, 2017 

OPINION & ORDER 

The Defendant, Anthony Tuswect Smith, filed his fifth Petition for Relief under the Post - Conviction Relief Act on October 24, 2016. On December 13, 2016 pursuant to Pa.R.Crim.Pro. 

907(1), the Defendant was provided Notice of the Conti's intent to dismiss his Petition for Relief 

under the Post -Conviction Relief Act without further proceedings as the Petition was untimely. 

On January 3, 2017 the Defendant filed a timely written objection to the Court's intent to dismiss 

without a hearing. 

Opinion 

For the reasons set forth in the Court's October 24, 2016 Notice, the Defendant's 

judgment of sentence beeam&final on or about September 29, 2004 and the present PCRA 

Petition is therefore patently Untimely. 

The Defendant may proceed with an otherwise untimely Petition only if he alleges and 

proves: 

-(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 

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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 Suprepe 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). 

The Defendant avers that this untimely Petition is permitted under 42 Pa.C.S.A. 

§9545(b)(1)(i) and §9545(b)(l)(ii) in that: 

(1) The Conamonwealth presented at trial an inaccurate stipulation as to the chain of custody 

regarding a glove, residue, and a firearm; and 

(2) The Defendant is actually innocent of this offense. 

The Court finds that these alleged exceptions to the PCRA's time imitations are 

inapplicable. First, the alleged inaccurate stipulation presented by the Commonwealth is not 

government interference thatprevented the Defendant from presenting this claim in a timely 

PCRA Petition, as required by 42 Pa.C.S.A. §9545(b)(1)(i); the Defendant has merely rephrased a substantive allegation of error and/or trial counsel ineffectiveness, Second, pursuant to 42 

Pa.C.S.A. §9545.(b)(2), lalnypetition invoking an exception provided in paragraph (I) shall be 

filed within 60 days of the date the claim could have been presented." The Defendant's 

allegations are based upon trial transcripts and Pennsylvania State Police ("PSP") property 

records that have existed for litany years-not upon the PSP denial of subpoena of September 28, 

2016-and therefore the Defendant has failed to raise these matters within 60 days of when they 

could have been.presented. Finally, the Comment to Pa.R.Crim.Pro. 907 provides "Second or 

subsequent petitions will not be entertained unless a strong prima fide showing is offered to 

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demonstrate that a miscarriage of justice may have occurred.... This standard is met if the 

petitioner can deMonstrate ... that the petitioner is innocent of the crimes charged." However, 

this does not negate the requirement that a Petition bp timely filed. See 42 Pa.C.S.A. 

. , §954.5(b)(1)("Arly petition, under this subchapter, including a second or subsequent petition, 

shall be filed within one year of the date the judgment becomes final....)(emphasis added). 

WHEREFORE, the Court finds that the Defendant's Petition for Relief under the Post - Conviction Relief Act is untimely and that the Defendant has failed to prove a statutory 

exception to the PCRA's time limitations. The Court therefore enters the following Order: 

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