J-S04007-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JASON SMITH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1491 EDA 2021

Appeal from the PCRA Order Entered June 17, 2021

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-004803-2013

BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 07, 2022

Appellant, Jason Smith, appeals pro se from the order dismissing his 

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

42 Pa.C.S. §§ 9541-9546. After careful review, we affirm in part, vacate in 

part, and remand for further proceedings. 

A detailed summary of the facts underlying Appellant’s convictions are 

not germane to this appeal. Briefly, on May 15, 2015, a jury convicted 

Appellant of first-degree murder, arson, risking catastrophe, abuse of a

corpse, and possession of an instrument of crime. That same day, the trial 

court imposed a mandatory minimum sentence of life imprisonment for firstdegree murder, and consecutive sentences of 10-20 years’ incarceration for 

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* Former Justice specially assigned to the Superior Court.
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arson, 3.5-7 years’ incarceration for risking a catastrophe, 1-2 years’

incarceration for abusing a corpse, and 2.5-5 years’ incarceration for 

possession of an instrument of crime. Appellant filed a timely direct appeal. 

This Court affirmed his judgment of sentence, and our Supreme Court 

declined further review on June 25, 2018. Commonwealth v. Smith, 181 

A.3d 1271 (Pa. Super. 2017) (unpublished memorandum), allocatur denied, 

187 A.3d 914 (Pa. 2018).

On December 12, 2017, while this Court’s decision on direct appeal 

was pending, Appellant prematurely filed a pro se PCRA petition, which the 

PCRA court stayed pending the outcome of his appeal. On September 7, 

2018, following the resolution of his direct appeal, Appellant’s first PCRA 

petition was reinstated, and the lower court appointed PCRA counsel. 

Subsequently, as recounted by the Commonwealth:

On January 18, 2019, [PCRA] counsel filed a “no merit”

[Turner/Finley1] letter..., along with a motion to withdraw as 

counsel. The PCRA court filed notice of its intent to dismiss 

[Appellant]’s petition pursuant to Pa.R.Crim.P. 907. After no 

response was filed, the PCRA court dismissed the petition and 

granted counsel’s withdrawal motion on February 22, 2019. No 

appeal followed.

On December 3, 2019, [Appellant] filed a pro se second PCRA 

petition, that is the subject of this appeal, in which he claimed to 

have filed a responsive motion to PCRA counsel’s 

[Turner/]Finley letter and a notice of appeal from the dismissal 

of his first PCRA petition that the PCRA court and the clerk of 

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1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 
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courts supposedly never acknowledged or accepted for filing. 

Second PCRA Petition, 12/3/19, [at] 1-2. He also claimed that a 

Pennsylvania Department of Corrections policy prevented him 

from developing “a complete and supported” PCRA filing and 

prevented him from assisting his prior counsel “with an 

attachment of” his psychiatric records. Id. at 3. With respect to 

those claims, he asserted the governmental interference 

exception to the PCRA’s timeliness provision. Id. With respect 

to the documents that he claimed were never accepted for filing, 

he attached to his petition a “Motion to Deny Withdrawal of

Counsel,” with a proof of service dated February 14, 2019, and a 

notice of appeal and a [Pa.R.A.P. 1925(b) concise] statement of 

matters complained of on appeal, with a proof of service dated 

March 20, 2019. Id. at Exhibits A-C.

On June 30, 2020, [Appellant] filed a request for discovery and 

an amended PCRA petition reiterating his assertion that the clerk 

of courts had never docketed a response to his former counsel’s 

[Turner/]Finley letter and a notice of appeal, and requesting 

reinstatement of his right to appeal from the dismissal of his first 

PCRA petition. Amended Second PCRA Petition, 6/30/20, [at] 1-

2.

The PCRA court filed notice of its intent to dismiss the petition 

pursuant to Pa.R.Crim.P. 907. The court found that [Appellant’s]

substantive claims of ineffective assistance and after-discovered 

evidence did not satisfy any applicable exception to the PCRA’s 

timeliness provision. Rule 907 Notice, 4/30/21. The notice did 

not address [Appellant]’s assertion about the clerk of courts 

supposedly not accepting his pro se PCRA filings concerning the 

dismissal of his first PCRA petition. After no response was filed, 

the PCRA court dismissed the petition on June 17, 2021.

Commonwealth’s Brief at 4-5 (citations reformatted; footnote omitted).

Appellant filed a timely notice of appeal from the dismissal of his 

second PCRA petition, and the PCRA court did not order him to file a 

statement pursuant to Rule 1925(b). The PCRA court issued its Rule 

1925(a) opinion on August 16, 2021. Appellant now presents the following 

questions for our review:
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I. Did the PCRA petition properly demonstrate governmental 

interference?

II. Did the PCRA court err in treating the after-discovered 

evidence as if they were after-discovered facts?

Appellant’s Brief at 4.

This Court’s standard of review regarding an order denying a petition 

under the PCRA is whether the determination of the PCRA court is supported 

by the evidence of record and is free of legal error. Commonwealth v. 

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the 

timeliness of Appellant’s petition, because the PCRA time limitations 

implicate our jurisdiction and may not be altered or disregarded to address 

the merits of a petition. See 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
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(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). Additionally, any petition attempting to 

invoke one of these exceptions must “be filed within one year of the date the 

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

Here, as stated supra, our Supreme Court denied Appellant’s petition 

for allowance of appeal from our decision affirming his judgment of sentence 

on June 25, 2018. Appellant did not seek further review and, thus, his 

judgment of sentence became final ninety days later, on September 23, 

2018, upon expiration of the time to file a petition for writ of certiorari with 

the United States Supreme Court. See 42 Pa.C.S. § 9545(b)(3); 

U.S.Sup.Ct.R. 13. Consequently, Appellant’s present PCRA petition, his 

second, filed in December of 2019, is facially untimely and, for this Court to 

have jurisdiction to review the merits thereof, he must prove that he meets 

one of the exceptions to the timeliness requirements set forth in 42 Pa.C.S. 

§ 9545(b).

In his first claim, Appellant asserts that the untimeliness of the claims 

in his second PCRA petition was excused by the applicability of the 

government interference exception, arguing that his attempt to appeal from 

the order dismissing his first PCRA petition was thwarted by the clerk of 

courts. The second petition contains numerous claims regarding the alleged 

ineffectiveness of both trial and PCRA counsel. See PCRA Court Opinion 
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(“PCO”), 8/16/21, at 2 n.1 (summarizing these various claims). Most of 

these claims were raised in Appellant’s first PCRA petition. The PCRA court 

dismissed these claims as being untimely under the PCRA, with scant

analysis, and without having conducted an evidentiary hearing, relying 

generally on the principles that ineffectiveness claims are subject to the 

PCRA court’s time limits without exception, and that the government 

interference exception cannot be satisfied by a claim that prior counsel 

hindered the timely filing of a PCRA petition. Id. at 2.

However, Appellant argues that:

Although the PCRA court claimed Appellant was somehow 

asserting that PCRA counsel was a government official, the 

records belies that contention. Neither the original PCRA Petition 

[n]or the Amended petition made such a claim. Appellant has 

consistently made clear that the “clerk failed to docket the 

Notice of Appeal,” [and] never has Appellant claimed PCRA 

counsel was at fault. To hold otherwise is simply inaccurate.

Appellant’s Brief at 9. 

As the Commonwealth dutifully concedes, 

the PCRA court does not appear to have made any determination 

as to whether or not [Appellant] had tried to file a notice of 

appeal from the dismissal of his first PCRA petition and was 

somehow thwarted from completing the filing of that notice due 

to governmental interference. No such ruling can be gleaned 

from the court’s Rule 907 dismissal notice or its opinion. 

[Appellant] does not appear to have waived the claim by not 

clearly identifying it in a statement pursuant to Pa.R.A.P. 

1925(b), because the PCRA court never ordered [him] to file a 

Rule 1925(b) statement. Nor can the Commonwealth conclude 

that the claim was waived for lack of preservation because it was 

included in [Appellant]’s petition[. See] Second PCRA Petition, 

12/3/19, [at] 1-2[].
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Commonwealth’s Brief at 7-8. Thus, the Commonwealth concludes that, 

“[g]iven the lack of any input ... from the PCRA court, there is no 

determination for this Court or the Commonwealth to evaluate” regarding 

Appellant’s government interference claim, and “the Commonwealth does 

not oppose a remand for the purpose of allowing the PCRA court to issue a 

ruling” on Appellant’s claim that his attempt to file a notice of appeal from 

the denial of his first PCRA petition was the product of government 

interference. Id. at 8.

As further noted by the Commonwealth, Appellant attached to his 

second PCRA petition evidence that he attempted to appeal from the 

dismissal of his first, timely PCRA petition, in which these various 

ineffectiveness claims were raised. Furthermore, most of the claims 

Appellant attempts to raise in his second petition were initially raised in his 

first petition, but were not thoroughly litigated due to his ostensible failure 

to respond to the court’s Rule 907 that accepted PCRA counsel’s

Turner/Finley letter, and/or due to his failure to perfect an appeal from the 

order dismissing his first petition. Because the PCRA court failed to conduct 

a hearing to address the applicability of this exception based on the facts 

alleged in Appellant’s second petition, we agree with the Commonwealth that 
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we must remand this matter for the PCRA court to conduct an evidentiary 

hearing to address this government interference claim in the first instance.2

In his next claim, Appellant asserts that the PCRA court erred by 

addressing his after-discovered evidence issues

3 as alleging a timeliness 

exception under 42 Pa.C.S. § 9545(b)(1)(ii), instead of considering those

claims pursuant to 42 Pa.C.S. § 9543(a)(2)(vi) (providing for relief under 

the PCRA due to the “unavailability at the time of trial of exculpatory 

evidence that has subsequently become available and would have changed 

the outcome of the trial if it had been introduced”). Appellant stresses that, 

as with his ineffectiveness claims discussed above, his after-discovered 

evidence claims in his current petition were the same as those raised initially 

in his first PCRA petition. As such, Appellant asserts that he was relying on 

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2 This Court has explained that, “[w]hen reviewing the denial of a PCRA 

petition without an evidentiary hearing, we ‘determine whether the PCRA 

court erred in concluding that there were no genuine issues of material fact 

and in denying relief without an evidentiary hearing.’” Commonwealth v. 

Hart, 199 A.3d 475, 481 (Pa. Super. 2018) (quoting Commonwealth v. 

Burton, 121 A.3d 1063, 1067 (Pa. Super. 2015)). “[W]hen there are no 

disputed factual issues, an evidentiary hearing is not required....” Id. 

(quoting Commonwealth v. Morris, 684 A.2d 1027, 1042 (Pa. 1996)). 

Here, Appellant’s government interference claim necessitates an evidentiary 

hearing, as Appellant proffered evidence in his current PCRA petition that he 

attempted to appeal from the denial of his first PCRA petition. 

3 Appellant contends that new evidence has emerged 1) that “his trial 

counsel was convicted of money laundering[,]” and 2) that “another person 

had confessed to the murder of which he was convicted.” Appellant’s Brief 

at 11. In support of these assertions, Appellant proffered two newspaper 

articles originally published in 2017. 
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the government interference exception pursuant to Section 9545(b)(1)(i), 

not the newly-discovered evidence exception set forth in Section 

9545(b)(1)(ii), to excuse the facial untimeliness of his second PCRA petition 

with respect to these claims. 

The record confirms Appellant’s assertion that he first tried to raise 

these claims during the litigation of his first, pro se PCRA petition. See

Appellant’s First Pro Se PCRA Petition, 12/12/17, at 3-4. Thus, if the 

government interference exception does not apply to these claims in the 

context of the current petition, Appellant necessarily waived them for 

purposes of the current petition due to his failure to seek appellate review 

from the denial of his first PCRA petition wherein he raised identical claims. 

See 42 Pa.C.S. § 9544(b) (“For purposes of this subchapter, an issue is 

waived if the petitioner could have raised it but failed to do so before trial, at 

trial, during unitary review, on appeal or in a prior state postconviction 

proceeding.”). However, Appellant argues that his failure to fully litigate 

these claims during his first PCRA petition was due to interference with his 

attempt to appeal from the denial of his first PCRA petition, as discussed 

above. Accordingly, we agree with Appellant that the PCRA court should 

have addressed the timeliness of these after-discovered evidence claims 

under the government interference exception set forth in Section 

9545(b)(1)(i), not the newly-discovered evidence exception set forth in 

Section 9545(b)(1)(ii). 
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Nevertheless, the PCRA court provided an alternative analysis with 

respect to these after-discovered evidence claims, which the court did not do 

with respect to Appellant’s ineffectiveness claims. As such, we deem the

record is sufficiently developed for us to address them. 

The PCRA court reasoned that, 

[e]ven assuming that the amended petition was filed within one 

year of [Appellant]’s discovering these articles, his claims would 

nevertheless fail. Both allegations rely on newspaper articles

which do not articulate any basis for relief, nor demonstrate how 

this information would be exculpatory. The allegations regarding 

[Appellant]’s trial counsel are that he was convicted of conspiring 

with his clients in money laundering and similar activities. This

fact does not provide a basis, nor does [Appellant] allege, that 

counsel committed any wrong-doing in [Appellant]’s case.

This assertion is therefore not sufficient to substantiate 

[Appellant]’s claim, nor demonstrate how counsel’s personal 

legal jeopardy impacted the legal representation [Appellant] 

received.

PCO at 3-4.

We agree with the PCRA court and conclude that Appellant is not 

entitled to relief on this claim, as he failed to plead facts sufficient 

demonstrate that the after-discovered evidence pertaining to his trial 

counsel’s legal troubles had any nexus with his representation of Appellant in 

this case. In reaching this conclusion, we find persuasive the 

Commonwealth’s citation of Commonwealth v. King, 241 A.3d 396 (Pa. 
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Super. 2020) (unpublished memorandum).4 That case involved a similar 

claim concerning the very same attorney’s legal troubles, where King argued 

the attorney was ineffective due to being “pre-occupied with extra-curricular 

criminal activities,” which ostensibly led him to file a frivolous direct appeal 

on King’s behalf. Commonwealth v. King, 1772/1773 EDA 2019, 

unpublished memorandum at 4 (Pa. Super. filed Oct. 8, 2020). This Court 

rejected that claim, reasoning that the attorney’s “criminal activities were 

completely removed from” King’s case, and that King failed to “explain how 

[counsel’s] unrelated criminal activities could have caused [him] to file a 

frivolous direct appeal....” Id. at 8. Similarly, here, Appellant fails to 

demonstrate how his trial attorney’s illegal conduct impacted his 

representation of Appellant in this case.5 Accordingly, no relief is due on this 

claim, even assuming Appellant could overcome the PCRA’s timeliness 

requirements. 

Next, Appellant asserts that he obtained after-discovered evidence 

that someone else admitted to committing the crime for which he was 

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4 See Pa.R.A.P. 126(b) (stating that non-precedential decisions of this Court,

filed after May 1, 2019, may be cited for their persuasive value). 

5 Appellant’s bald assertion and cursory argument, without any supporting 

caselaw, that counsel had represented him “while donning the cloak of 

criminality,” is no different from King’s bald assertion that the same attorney 

was preoccupied with his criminal activity. Appellant’s Brief at 12. In both 

cases, the petitioners failed to show a nexus between the attorney’s illegal 

conduct and the attorney’s own cases. 
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convicted. Appellant argues that it “is difficult to imagine evidence more 

exculpatory[.]” Appellant’s Brief at 12.

The PCRA court dismissed this claim, inter alia, because the article 

proffered by Appellant did not substantiate it. We first note that the 

evidence of Appellant’s guilt was extremely strong. At trial, the 

Commonwealth proved that, while working as an exterminator at the 

victim’s home, Appellant strangled the victim to death and then set fire to 

her body. See Commonwealth v. Smith, 2994 EDA 2015, unpublished 

memorandum at 1-2 (Pa. Super. filed Dec. 27, 2017). Corroborating video 

evidence showed Appellant entering and leaving the victim’s home near the 

time of the murder, and other evidence showed that he had an appointment 

with the victim that day. Id. at 2-3. When first approached by police, and 

before the officers said anything to him, “Appellant blurted out[,] ‘she was 

alive when I left her[.]’” Id. at 3. Subsequently, Appellant confessed to 

killing the victim. Id. at 4. Additionally, “[d]uring recorded phone 

conversations from prison, Appellant joked with his girlfriend about 

pretending to be intellectually impaired so that the jury would question the 

validity of his confession to police.” Id. at 4-5. 

The 2017 news article proffered by Appellant concerned admissions 

made by Cosmo DiNardo, who had previously confessed to committing four 

murders in Bucks County. In the article, DiNardo also purportedly claimed 

to have killed two people in Philadelphia. An investigator stated that, with 

respect to the alleged Philadelphia killings, all the police had to go on was a 
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nickname in one case, and the claim that DiNardo had killed a woman in a 

basement in the other. No other details were provided in the article. 

The PCRA court rejected Appellant’s claim that this article contained 

exculpatory evidence, finding that the article lacked “any reference to times, 

dates, locations[,] or other details of this incident[,]” that could establish a 

relationship to Appellant’s case and, therefore, that Appellant’s “argument ... 

that this alleged confession has the ‘hallmarks’ of the crime for which [he]

was convicted” was unsubstantiated. PCO at 4. The court concluded that 

Appellant “fail[ed] to demonstrate any nexus whatsoever to his case, and his 

reliance on this article f[ell] woefully short of the standard of proof needed 

to substantiate any evidence which could be demonstrated to be 

exculpatory.” Id.

We agree with the PCRA court. Even if Appellant could satisfy the 

PCRA’s timeliness requirements with respect to this claim, he would not be 

entitled to relief. Appellant has again failed to establish any nexus between 

the new evidence and the crime for which he was convicted.6 

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In his brief, Appellant asserted in quotation marks, but without citation, 

that DiNardo had stated that Appellant “did not commit these crimes, I did.” 

Appellant’s Brief at 12. No such statement is contained in the article cited 

by Appellant, nor could we find any other evidence in the record supporting 

this assertion. Furthermore, it is beyond absurd to infer such a statement 

from the mere fact that DiNardo claimed to have killed a woman in a 

basement in Philadelphia, absent any more details to establish a nexus to

Appellant’s case. 
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In sum, with respect to Appellant’s after-discovered evidence claims 

discussed above, we affirm the PCRA court’s order denying Appellant’s 

second PCRA petition. With respect to all other claims raised therein, we 

vacate that portion of the order, and remand for an evidentiary hearing to 

consider Appellant’s claim that his attempt to appeal from the denial of his 

first PCRA petition was thwarted by governmental interference.

Order affirmed in part, vacated in part. Case remanded. 

Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/7/2022