J-S75008-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

CHRISTOPHER SMITH

Appellant No. 3542 EDA 2015

Appeal from the PCRA Order October 30, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-1115931-1991

BEFORE: BOWES, MOULTON AND MUSMANNO JJ.

MEMORANDUM BY BOWES, J.: FILED JANUARY 30, 2017

Christopher Smith appeals pro se from the order entered October 30, 

2015, denying his PCRA petition as untimely. We affirm. 

The facts of this case were set forth in the Pa.R.A.P. Rule 1925(a) 

opinion filed for purposes of direct appeal. 

On 19 September 1991 at 11:00 P.M., on the corner of 52nd and 

Haverford Avenues in Philadelphia, the defendant Christopher 

Smith and another unapprehended man tentatively referred to 

as “Marcus McDowell,” shot to death James Williams, a heavyset man in his thirties. Co-defendant Kevin Fitzpatrick 

participated in this incident by agreeing to act as a look-out.

On the night in question, although it was raining, the defendant 

and Marcus sat on the steps outside of a Chinese food restaurant 

in the vicinity of 52nd and Haverford. The young co-defendant 

Fitzpatrick stood nearby and kept watch as he was instructed to 

do by Marcus. The three men were observing James Williams, 

who was purchasing food from the Chinese restaurant and beer 

from a nearby bar. As Mr. Williams left the restaurant with his 
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food and his beer, the defendant and Marcus left their station 

and approached the decedent from behind. One of the two men 

pulled out a large silver revolver and pointed it at Mr. Williams’ 

head. After a brief conversation, the gunman pulled the trigger 

and Mr. Williams fell. As he lay in the street, the two 

perpetrators took his belongings and left.

Trial Court Opinion, 12/14/93, at 2-3 (citations omitted). In the weeks that 

followed the murder, Appellant and Fitzpatrick were apprehended. Appellant 

gave a statement admitting his involvement in the incident, but claimed that 

Marcus McDowell shot the victim. N.T., 10/7/92, at 184-89. 

Appellant and Fitzpatrick elected to proceed to a joint bench trial, 

where Appellant was found guilty of, inter alia, second-degree murder and 

was sentenced to life imprisonment.1 After sentencing, Appellant filed a 

direct appeal, and we affirmed, Commonwealth v. Smith, 655 A.2d 1049 

(Pa.Super. 1994). Appellant did not seek further review. He timely sought 

PCRA relief, which was ultimately denied. We affirmed on August 27, 1998.2 

Commonwealth v. Smith, No. 2849 Philadelphia 1997 (unpublished 

memorandum) (Pa.Super. 1998). Appellant subsequently filed two 

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1

 The PCRA judge herein did not preside over this proceeding.

2 Appellant’s sentence was final before the 1995 amendments to the current 

PCRA became effective. The legislature provided a one-year grace period 

from the time constraints of filing a PCRA petition, from January 16, 1996 to 

January 16, 1997, for petitioners whose judgment of sentence preceded the 

PCRA. See Commonwealth v. Alcorn, 703 A.2d 1054 (Pa. 1997). 
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additional petitions for PCRA relief, both of which were dismissed due to the 

failure to file a brief. 

The instant proceedings commenced on May 1, 2015, when Appellant 

filed a motion attaching an April 21, 2015 affidavit from an inmate, Steven 

Guilford, who stated the following. While engaged in small talk in the prison 

yard, Guilford informed Appellant that he grew up in West Philadelphia. 

Appellant then asked Guilford if he knew Marcus McDowell; Guilford replied 

that he did, but said Marcus’s real name is Mark Kevin McDowell. Guilford 

further stated that he heard McDowell was involved in a murder. Guilford 

wrote that Mark McDowell has a twin brother, Anthony. The twin told 

Guilford at some unspecified point in time that the police moved Mark to 

Williamsport and “got him out of” the murder.3

____________________________________________

3

 We have reviewed the trial transcript and note that the detective who took 

Appellant’s statement was asked on cross-examination about McDowell’s 

possible involvement. Appellant’s attorney stated that he possessed a 

statement by “Kevin” McDowell. N.T., 10/7/92, at 204. The detective was 

asked if this individual was actually Marcus McDowell. Id. The detective 

testified that he was not involved with speaking to that individual. However, 

he stated that, “To the best of my recollection, at some later point we found 

out that the Marcus McDowell we actually were looking for was the fellow 

that we had in that night with a different name.” Id. at 204-05. 

Appellant’s theory appears to be that the Commonwealth deliberately 

released McDowell in exchange for information that Appellant was involved 

and suppressed his true name as well as the existence of some type of deal.
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On September 17, 2015 the court issued its notice of intent to dismiss 

without a hearing. Appellant responded by filing an objection on October 6, 

2015. This timely appeal followed the October 30, 2015 dismissal of 

Appellant’s petition for PCRA relief. The PCRA court did not order Appellant 

to file a Pa.R.A.P. 1925(b) statement of matters complained of on appeal. 

The following issues are presented for our consideration. 

I. Did the PCRA court err by not finding that the Commonwealth 

violated Brady v. Maryland4 when the Commonwealth failed 

to disclose the true identity of alleged co-conspirator, Marcus 

McDowell?

II. Did the PCRA court err by not finding that the Commonwealth 

and government violated Brady v. Maryland when the 

Commonwealth failed to disclose a substantial benefit given 

to alleged co-conspirator, Marcus McDowell? 

III. Did the PCRA court err by not granting Appellant’s application 

for leave to pursue discovery pursuant to Pennsylvania Rule 

of Criminal Procedure 902(E)(1) and in failing to grant that 

discovery request the PCRA violated Appellant’s right to due 

process under the Fourteenth Amendment? 

Appellant’s brief at 8.

Initially, we observe that our review of the denial of a PCRA petition is 

well-settled. “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.” Commonwealth v. Mitchell, 141 A.3d 1277, 1283-83 (Pa. 2016) 

(quotation and citation omitted). 

____________________________________________

4 Brady v. Maryland, 373 U.S. 83 (1963). 
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The timeliness of a petition implicates the PCRA court’s ability to 

adjudicate the controversy. If a PCRA petition is untimely, “neither this 

Court nor the trial court has jurisdiction over the petition.” Commonwealth 

v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). We 

review that legal conclusion de novo. Id. A PCRA petition, including a 

second or subsequent petition, must be filed within one year of the date that 

the judgment of sentence becomes final unless an exception applies. 42 

Pa.C.S. § 9545(b)(1). 

Appellant’s sentence became final in 1994. Thus, the petition is 

timely only if one of the statutory exceptions applies. These exceptions are:

(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)-(iii). 

Herein, Appellant’s petition jointly invokes the § 9545(b)(1)(i) and (ii) 

exceptions. The § 9545(b)(1)(ii) exception requires the petitioner to 

establish (1) that the facts upon which the claim was predicated were 
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unknown and (2) that the facts could not have been discovered through the 

exercise of due diligence. Commonwealth v. Bennet, 930 A.2d 1264, 1272

(Pa. 2007). We do not conduct a merits-based analysis of the actual claim. 

See Commonwealth v. Cox, 146 A.3d 221, 229, n.11 (Pa. 2016) 

(describing the function of § 9545(b)(1)(ii) as that of a “gatekeeper . . . 

limited to considering only the existence of a previously unknown fact that 

would allow a petitioner to avoid the strict one year time-bar.”). A petition 

invoking any of these exceptions must be filed within sixty days of the date 

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

Instantly, Appellant contends that he presented the newly-discovered 

facts within sixty days, as the Commonwealth failed to disclose McDowell’s 

true identity and the purported favorable treatment during discovery in 

violation of Brady v. Maryland, 373 U.S. 83 (1963). “Although a Brady

violation may fall within the governmental interference exception, the 

petitioner must plead and prove the failure to previously raise the claim was 

the result of interference by government officials, and the information could 

not have been obtained earlier with the exercise of due diligence.” 

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008). 

Furthermore, as with the newly-discovered evidence exception, we do not 

conduct a merits analysis of the underlying Brady claim in resolving a 

timeliness inquiry. Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 

2008). 
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The PCRA court explained its reasons for deeming the petition 

untimely as follows. 

Petitioner, who confessed to participating in the crime, failed 

however to demonstrate that the identity of his alleged coconspirator was unascertainable with the exercise of due 

diligence. Instead, Petitioner outright dismissed his obligation of 

demonstrating due diligence by baldly asserting that Marcus’s 

“true identity” was undiscoverable because the government 

actively suppressed the information. Petitioner ignored the fact 

that according to Mr. Guilford’s affidavit, Mr. McDowell was 

known as Marcus by his family and friends. Thus, despite 

Petitioner’s complicity in the offense and awareness of his coconspirator’s widely-acknowledged alias, he nevertheless 

rejected his obligation under subsection 9545(b)(1). Petitioner’s 

unfounded speculation of a governmental cover-up did not 

relieve him of his burden to demonstrate due diligence. 

Petitioner thus failed to establish timeliness under either cited 

PCRA subsection.

Trial Court Opinion, 12/15/15, at 4-5. 

We agree that Appellant has failed to demonstrate that he acted with 

due diligence in ascertaining his alleged co-conspirator’s true name. 

Appellant has failed to establish why he could not have learned McDowell’s 

legal name through due diligence, nor has he attempted to establish that the 

government interfered with his ability to do so. Indeed, our review of 

Appellant’s statement shows that Appellant identified McDowell in a photo 

array and stated, “I heard that he told the cops that I shot the guy.” N.T., 

10/7/92, at 185. Nothing prevented Appellant from investigating McDowell’s 

involvement. 
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More significantly, we note that the facts upon which the claim is 

predicated goes far beyond the mere fact of McDowell’s name. As reflected 

in Appellant’s second claim on appeal, he alleges that the “Commonwealth 

failed to disclose a substantial benefit given to alleged co-conspirator, 

Marcus McDowell.” Appellant’s brief at 8. 

However, this alleged deal is not demonstrated by the affidavit. In 

Commonwealth v. Brown, 141 A.3d 491 (Pa.Super. 2016), we examined 

an affidavit wherein the writer alleged that a third party, Tommy Lemon, 

confessed to the litigant’s crime. Id. at 501. We concluded that the 

affidavit did not constitute a newly-discovered fact. 

We conclude that [the affidavit] does not constitute a newlydiscovered fact. We find instructive our Supreme Court's decision 

in Commonwealth v. Yarris, 557 Pa. 12, 731 A.2d 581 (1999). 

In Yarris, the petitioner sought to invoke the newly-discovered 

fact exception to the PCRA's timeliness requirement. He relied 

upon an affidavit by an individual who said that she heard 

another individual, not the petitioner, confess to the murder for 

which the petitioner had been convicted. Our Supreme Court 

held

that the evidence which purportedly reveals that 

someone other than [the petitioner] committed the 

murder is hearsay, not within any exception, and so 

unreliable as to be inadmissible. A claim which rests 

exclusively upon inadmissible hearsay is not of a 

type that would implicate the [newly-discovered fact] 

exception to the timeliness requirement, nor would 

such a claim, even if timely, entitle [the petitioner] 

to relief under the PCRA.

Id. at 592.
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The alleged confession by Tommy Lemon is hearsay as it is an 

out-of-court statement offered for the truth of the matter 

asserted. See Pa.R.Evid. 801(c). Any argument that Tommy 

Lemon's confession was a statement against interest fails 

because “for this exception to apply, the declarant must be 

unavailable as a witness, see Pa.R.Evid. 804(b), and [A]ppellant 

offers no proof [Lemon] is not available. 

Id. at 501–02 (alterations in original). Herein, the affidavit does not even 

present a purported confession by a third party overheard by the affidavitwriter/witness. Rather, Appellant avers that Guilford could testify to 

speculation by McDowell’s brother that the police covered up McDowell’s 

involvement in the murder. This alleged fact does not fall under the

pertinent exception.

Next, we address Appellant’s assertion that the PCRA court erred by 

denying his request for discovery. His pro se petition sought two items: any 

statements by McDowell from the interview that took place on September 

28, 1991, and the contract that afforded McDowell his freedom. PCRA 

Petition, 5/1/15, at 7. 

Discovery in non-capital cases is permitted only upon leave of court 

after a showing of exceptional circumstances. Pa.R.Crim.P. 902(E)(1). That 

phrase is not defined, and it is “for the trial court, in its discretion, to 

determine whether a case is exceptional and discovery is therefore 

warranted.” Commonwealth v. Frey, 41 A.3d 605, 611 (Pa.Super. 2012).
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However, while Rule 902(E) applies at “any stage of the proceedings,” 

we explained in Commonwealth v. Johnston, 42 A.3d 1120 (Pa.Super. 

2012), that the ability to grant discovery is conditioned on jurisdiction. 

However, the PCRA Court's ability to order discovery is precluded 

by the lack of jurisdiction demonstrated by the failure of the 

Appellants to satisfy the § 9545(b)(1)(ii) exception to the timebar. As has been routinely stated by the Supreme Court of 

Pennsylvania, “[t]he PCRA's timeliness requirements are 

jurisdictional in nature and must be strictly construed; courts 

may not address the merits of the issues raised in a petition if it 

is not timely filed.” 

We, therefore, conclude that Appellants' second pro se PCRA 

petitions were untimely, and that they failed to meet an 

exception to the PCRA timeliness requirements. Because the 

PCRA court below lacked jurisdiction, it was precluded 

from entertaining a motion for PCRA discovery.

Id. at 1130 (citations omitted, emphasis added). Thus, the court was 

precluded from entertaining Appellant’s motion and no error inhered in 

denying that request. Additionally, while Appellant claims the denial of his 

request violated his constitutional due process rights, that argument is not 

developed in any fashion. “While this Court may overlook minor defects or 

omissions in an appellant’s brief, we will not act as his or her appellate 

counsel.” Commonwealth v. Freeman, 128 A.3d 1231, 1249 (Pa.Super. 

2015) (citing Bombar v. W. Am. Ins. Co., 932 A.2d 78, 93 (Pa.Super. 

2007)). 

Finally, we address Appellant’s September 19, 2016 Application for 

Relief, which requests that we reverse the judgment of the PCRA court due 
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to the Commonwealth’s failure to file a timely brief. Appellant correctly 

notes that the Commonwealth did not comply with our July 21, 2016 per 

curiam order, which granted a second extension of time to file a brief, with a 

due date of August 15, 2016. The order specifically stated that no further 

extensions would be granted absent extraordinary circumstances. The 

Commonwealth did not file its brief until September 16, 2016 and did not 

seek an extension.

While we disapprove of the Commonwealth flouting our order, 

Appellant is not entitled to a windfall. The applicable Rule of Appellate 

Procedure states: 

If an appellant fails to file his designation of reproduced record, 

brief or any required reproduced record within the time 

prescribed by these rules, or within the time as extended, an 

appellee may move for dismissal of the matter. If an appellee 

fails to file his brief within the time prescribed by these rules, or 

within the time as extended, he will not be heard at oral 

argument except by permission of the court.

Pa.R.A.P. 2188. Thus, an appellee may move for dismissal due to an 

untimely brief, but an appellant may not. Moreover, we did not consider the 

Commonwealth’s brief in reaching our decision. See Commonwealth v. 

Tisdale, 100 A.3d 216, 217, n.4 (Pa.Super. 2014) (arguments advanced in 

untimely Commonwealth brief will not be considered). Hence, we deny the 

application. 

Application for Relief denied. Order affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/30/2017