J-S09006-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ROGER K. SNYDER,

Appellant No. 2962 EDA 2016

Appeal from the PCRA Order August 29, 2016

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0003847-1977

BEFORE: SHOGAN, STABILE, and PLATT,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 28, 2017

Appellant, Roger K. Snyder, appeals pro se from the order entered on 

August 29, 2016, that denied his fifth petition for collateral relief filed 

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

9546. We affirm.

The PCRA court provided the following background:

1. On June 21, 1978, a jury found petitioner guilty of murder 

in the first degree and related offenses. He was subsequently 

sentenced to imprisonment for life.

____________________________________________

*

 Retired Senior Judge assigned to the Superior Court.
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2. The Supreme Court of Pennsylvania affirmed the judgment 

of sentence on December 17, 1981.[1]

3. In 1983, petitioner filed a federal habeas corpus petition 

seeking post-conviction collateral relief.[2] The District Attorney 

at the time was Joseph A. Smyth, Jr. who later became a judge 

of the Montgomery County Court of Common Pleas, and who 

now serves as a Senior Judge of the Montgomery County Court 

of Common Pleas. 

4. On August 3, 1986, petitioner filed a petition under the 

Post-Conviction Hearing Act (the predecessor to the PostConviction Relief Act, 42 Pa.C.S. §§ 9541-9546). This court 

denied the petition and the Superior Court of Pennsylvania 

affirmed that order. Petitioner filed a petition for allowance of 

appeal, but the Supreme Court of Pennsylvania denied it.

5. On December 19, 1996, petitioner filed a petition under 

the PCRA. Judge Smyth denied the petition, the Superior Court 

affirmed and the Supreme Court of Pennsylvania denied 

petitioner’s petition for allowance of appeal. 

6. Petitioner then filed an application styled as a petition for 

writ of habeas corpus on November 30, 2007. That petition 

raised a single claim: that Judge Smyth should have recused 

himself from deciding the 1996 PCRA petition because he was 

the District Attorney at the time petitioner litigated his 1983 

federal habeas corpus petition. This court treated the application

as a PCRA petition and denied it as untimely. The Superior 

Court affirmed that decision on March 25, 2009. Petitioner did 

not seek leave to appeal to the Supreme Court of Pennsylvania.

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1

 At the time of Appellant’s conviction, the Supreme Court had exclusive 

jurisdiction over appeals in cases of felonious homicide. See

Commonwealth v. Spotz, 896 A.2d 1191, 1218 n.30 (Pa. 2006) 

(discussing the Supreme Court’s exclusive jurisdiction pursuant to 17 P.S. § 

211.202(1), which was repealed by Act No. 137 of 1980 and codified at 42 

Pa.C.S. § 722).

2 Appellant’s petition for writ of habeas corpus was denied on February 9, 

1984.
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7. Petitioner filed an application for post-conviction collateral 

relief, styled as a “Petition for Writ of Habeas Corpus” 

(hereinafter “the petition”) on September 4, 2013, again 

claiming Judge Smyth should have recused himself from deciding 

the 1996 PCRA petition. The undersigned judge denied the 

petition, the Superior Court of Pennsylvania affirmed that order, 

and the Supreme Court of Pennsylvania denied permission for 

allowance to appeal. 

8. Petitioner then filed the instant application for postconviction collateral relief on July 13, 2016.

9. In the instant PCRA petition, petitioner again claims Judge 

Smyth should have recused himself from deciding the 1996 

PCRA petition.

10. The petition does not aver new evidence that would tend 

to establish petitioner’s innocence. Nor does the petition aver 

that government officials interfered with petitioner’s presentation 

of his claims; that the facts upon which the claim is based were 

unknown to petitioner; or that petitioner is asserting a 

constitutional right that has been recognized by the Supreme 

Court of the United States or the Supreme Court of 

Pennsylvania, and held to apply retroactively by the court that 

recognized it. 

Order, 7/25/16, at 1-3.3 The PCRA court denied Appellant’s petition on 

August 29, 2016, and Appellant filed this timely appeal. 

On appeal, Appellant presents one issue for this Court’s consideration:

IS THE PETITIONER ENTITLED TO A NEW PCRA FILING 

PURSUANT TO THE UNITED STATES SUPREME COURT DECISION 

IN WILLIAMS V. PENNSYLVANIA, 2016 U.S. LEXIS 373 AS THE 

COURT HELD THAT IT WAS A VIOLATION OF THE DUE PROCESS 

CLAUSE FOR A FORMER DISTRICT ATTORNEY TO RULE AS A 

SITTING JUDGE IN HIS CRIMINAL CASE?

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3

In its opinion filed pursuant to Pa.R.A.P. 1925(a), the PCRA court 

incorporated the July 25, 2016 order by reference. Opinion, 9/23/16, at 

unnumbered 1. 
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Appellant’s Brief at 6 (verbatim).

When reviewing the propriety of an order denying PCRA relief, this 

Court is limited to determining whether the evidence of record supports the 

conclusions of the PCRA court and whether the ruling is free of legal error. 

Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). The PCRA 

court’s findings will not be disturbed unless there is no support for them in 

the certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. 

Super. 2014).

Initially, we address whether this appeal is properly before us. The 

PCRA court dismissed Appellant’s petition as untimely. “As the timeliness of 

a PCRA petition is a question of law, our standard of review is de novo and 

our scope of review is plenary.” Commonwealth v. Callahan, 101 A.3d 

118, 121 (Pa. Super. 2014) (citation omitted). Moreover, the timeliness of a 

PCRA petition is a jurisdictional threshold that may not be disregarded in 

order to reach the merits of the claims raised in a PCRA petition that is 

untimely. Commonwealth v. Cintora, 69 A.3d 759, 762 (Pa. Super. 

2013). “We have repeatedly stated it is the [petitioner’s] burden to allege 

and prove that one of the timeliness exceptions applies. See, e.g., 

Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999). Whether [a 

petitioner] has carried his burden is a threshold inquiry prior to considering 

the merits of any claim.” Commonwealth v. Edmiston, 65 A.3d 339, 346 

(Pa. 2013).
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In order to be considered timely, a first or subsequent PCRA petition 

must be filed within one year of the date the petitioner’s judgment of 

sentence becomes final. 42 Pa.C.S. § 9545(b)(1). As noted above, since his 

sentencing on May 11, 1979, Appellant has filed numerous petitions for 

collateral relief;4the instant petition, his fifth, is time-barred absent the 

applicability of one of the exceptions enumerated in 42 Pa.C.S. 

§ 9545(b)(1).5 

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4 The 1995 amendments to the PCRA provided that if the petitioner’s 

judgment of sentence became final before January 16, 1996, a PCRA petition 

could be filed within one year, or by January 16, 1997. However, this grace 

period does not apply to second or subsequent petitions, regardless of when 

the first petition was filed. Commonwealth v. Fairiror, 809 A.2d 396, 398 

(Pa. Super. 2002). 

5

 The exceptions to the timeliness requirement are as follows:

(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. § 9545(b)(1)(i), (ii), and (iii).
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A petition invoking one of these exceptions must be filed within sixty 

days of the date the claim could first have been presented. 42 Pa.C.S. 

§ 9545(b)(2). In order to be entitled to the exceptions to the PCRA’s oneyear filing deadline, “the petitioner must plead and prove specific facts that 

demonstrate his claim was raised within the sixty-day time frame” under 

section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa. 

Super. 2001). “If the petition is determined to be untimely, and no 

exception has been pled and proven, the petition must be dismissed without 

a hearing because Pennsylvania courts are without jurisdiction to consider 

the merits of the petition.” Commonwealth v. Perrin, 947 A.2d 1284, 

1285 (Pa. Super. 2008).

Here, Appellant claims that Williams v. Pennsylvania, ___U.S.___, 

136 S.Ct. 1899, 1907 (2016), created a new constitutional right, and 

therefore, an exception to the PCRA time-bar pursuant to 42 Pa.C.S. § 

9541(b)(1)(iii) is applicable. Appellant’s Brief at 8-9. We disagree.

In Williams, the United States Supreme Court stated that “The 

involvement of multiple actors and the passage of time do not relieve the 

former prosecutor of the duty to withdraw in order to ensure the neutrality 

of the judicial process in determining the consequences that his or her own 

earlier, critical decision may have set in motion.” Williams, ___U.S. at ___, 

136 S.Ct. at 1907. Appellant asserts that pursuant to Williams, Judge 
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Smyth was obligated to recuse from considering Appellant’s 1996 PCRA 

petition. 

After review, it is undisputed that Judge Smyth served as an Assistant 

District Attorney and District Attorney when Appellant litigated collateral 

petitions, and that Judge Smyth later ruled on Appellant’s 1996 PCRA 

petition. However, Appellant has not established that the holding in 

Williams has been held to apply retroactively pursuant to 42 Pa.C.S. § 

9545(b)(1)(iii). As such, Appellant’s fifth PCRA petition is untimely, and no 

exceptions are applicable.6 

In conclusion, because Appellant’s PCRA petition was untimely and no 

exceptions apply, the PCRA court correctly determined that it lacked 

jurisdiction to consider the merits of Appellant’s PCRA petition and properly 

dismissed it as untimely filed. Perrin, 947 A.2d at 1285. Accordingly, we 

affirm the PCRA court’s order. Commonwealth v. Lawson, 90 A.3d 1, 8 

(Pa. Super. 2014).

Order affirmed.

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6 We note, however, that even if Williams applied, Appellant failed to 

articulate how or in what capacity Judge Smyth was involved with his case 

or that Judge Smyth made any “critical decision” at trial, on appeal, or in 

any collateral proceeding as a prosecutor. Williams, 136 S.Ct. at 1907.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/28/2017