J -S54040 - 17

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

v. ANTHONY TUSWEET SMITH

Appellant : : : : : : : : : 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 Act 1 (“PCRA”) petition as untimely. Appellant claims that governmental interference precluded him from obtaining exculpatory evidence. We affirm.

____________________________________________
* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541 -9546.J -S54040 - 17

- 2 -

We adopt the facts and procedural history set forth by the PCRA court’s opin ions. 2 See PCRA Ct. Op., 12/13/16, at 1 - 2; 3 PCRA 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 titl e 42 Pa.C.S.A. § 9545 (b)(2) ignores the time attributed to the continuing non disclosure 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 hea ring 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

____________________________________________ 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

- 3 - 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 consideratio n 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 m erits 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: 9/14/2017J -S54040 - 17

- 4 -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 

### ofthe 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 

### of7

### 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 7II. 

### 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 

### ofthe 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 

### ofthese 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 7H 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 Reliefunder 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

1Constitution or laws of this Commonwealth or the Constitution or laws ofthe 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 

### ofcustody 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

2demonstrate that a miscarriage ofjustice 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 ReliefAct 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:

3