J-S30010-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

TIMOTHY SMITH,

Appellant No. 973 WDA 2017

Appeal from the PCRA Order Entered May 31, 2017

In the Court of Common Pleas of Jefferson County

Criminal Division at No(s): CP-33-CR-0000083-2009

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

TIMOTHY SMITH,

Appellant No. 1419 WDA 2017

Appeal from the PCRA Order Entered September 5, 2017

In the Court of Common Pleas of Jefferson County

Criminal Division at No(s): CP-33-CR-0000083-2009

BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 24, 2018

Timothy Smith appeals from the May 31, 2017 order denying, as an 

untimely petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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9541-9546, his “Petition for Writ of Habeas Corpus or Coram Nobis” 

(hereinafter, “coram nobis petition”). Appellant has also filed an appeal from 

the court’s September 5, 2017 order which held in abeyance a second, pro se 

PCRA petition that Appellant filed during the pendency of his appeal from the 

May 31, 2017 order.1 After careful review, we affirm the court’s May 31, 2017 

order, and quash the appeal from its September 5, 2017 order. 

This Court previously summarized the facts and procedural history of 

Appellant’s case, as follows:

Appellant was arrested on January 5, 2009, and charged 

with various offenses after his step-daughter, C.P., alleged that 

he had sexually abused her beginning when she was eight years 

old and continuing until she was approximately thirteen years old. 

Appellant proceeded to a jury trial on October 5 and 6, 2009, at 

the close of which the jury convicted him of 23 counts of 

aggravated indecent assault, 29 counts of indecent assault 

(person less than 13 years of age), and 26 counts of endangering 

the welfare of children. The trial court subsequently sentenced 

Appellant to an aggregate term of 24 years, 8 months, and one 

day to 76 years’ incarceration. Appellant was also determined to 

be a sexually violent predator for Megan’s Law purposes. 

Appellant timely appealed from his judgment of sentence and, on 

September 13, 2011, we affirmed. Commonwealth v. Smith, 

34 A.3d 225 (Pa. Super. 2011) (unpublished memorandum). 

Appellant did not file a petition for allowance of appeal with our 

Supreme Court.

On October 9, 2012, Appellant filed a timely, counseled 

PCRA petition alleging, inter alia, the ineffective assistance of his 

trial counsel, David S. Shrager, Esq. A PCRA hearing was 

conducted on May 23, 2013, at which Appellant and Attorney 

Shrager both testified. On December 30, 2013, the PCRA court 

issued an opinion and order denying Appellant’s petition. 

____________________________________________

1 Appellant filed with this Court a request to consolidate his two appeals, which 

we granted by per curiam order on November 29, 2017.
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Commonwealth v. Smith, No. 198 WDA 2014, unpublished memorandum 

at 1-2 (Pa. Super. filed March 31, 2015). Appellant filed a timely appeal from 

the PCRA court’s decision, and this Court affirmed. See id. Appellant then 

filed a petition for allowance of appeal with our Supreme Court, which the 

Court denied on November 4, 2015. See Commonwealth v. Smith, 125 

A.3d 1201 (Pa. 2015).

On April 24, 2017, Appellant filed the coram nobis petition underlying 

the present appeal. Therein, he asserted that Attorney Shrager had “testified 

inaccurately” during the May 23, 2013 PCRA hearing. Petition for Writ of 

Habeas Corpus or Coram Nobis, 4/24/17, at 3 (unnumbered). Appellant

vaguely claimed that he uncovered Attorney Shrager’s allegedly inaccurate 

testimony at some unidentified point after the court had denied his October 

9, 2012 PCRA petition. Id. Appellant neither specified what ‘inaccurate’ 

testimony Attorney Shrager purportedly offered at the PCRA hearing, nor how 

that testimony had impacted the PCRA court’s decision. He also did not 

identify how, or precisely when, he had discovered this information. In regard 

to what relief Appellant sought, he asked that the court permit him to amend 

his coram nobis petition, submit a witness affidavit from an individual named 

Erin Melegari, and schedule a hearing on his petition. 

The trial court deemed Appellant’s coram nobis petition as a PCRA 

petition. On April 28, 2017, the court issued a Pa.R.Crim.P. 907 notice of its 

intent to dismiss the petition as being untimely filed. Appellant filed a 

response on May 22, 2017. On May 31, 2017, the PCRA court issued an order 
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dismissing Appellant’s petition. Appellant filed a timely notice of appeal, and 

he also complied with the court’s order to file a Pa.R.A.P. 1925(b) concise 

statement of errors complained of on appeal. The court issued a Rule 1925(a) 

opinion on July 31, 2017. 

While that appeal was pending in this Court, Appellant filed a pro se 

PCRA petition on August 25, 2017, arguing that his designation as a sexually 

violent predator (SVP) is illegal under our Supreme Court’s decision in 

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), cert. denied, 138 S.Ct. 

295 (2018) (holding that the registration provisions of the Sexual Offender 

Registration and Notification Act (SORNA) are punitive and, therefore, cannot 

be retroactively applied to a defendant whose crimes were committed prior to 

SORNA’s effective date). On September 5, 2017, the PCRA court issued an 

order stating that Appellant’s petition was being held in abeyance until his 

appeal from the May 31, 2017 order became final. The order did not address 

the underlying merits of Appellant’s SVP challenge. Nevertheless, on

September 25, 2017, Appellant filed a pro se notice of appeal from that order. 

The court ordered Appellant to file a Rule 1925(b) statement, and Appellant, 

still acting pro se, timely complied. On October 18, 2017, the court issued an 

opinion in which it addressed, and rejected, the merits of Appellant’s challenge 

to his SVP designation.

As stated supra, we consolidated Appellant’s two appeals. Herein, he

raises two issues for our review:
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1) Did the lower court err by disregarding the petition’s title of a

request for habeas corpus or coram nobis relief and dismissing 

the petition as an untimely PCRA action since [Appellant’s] 

claim is not one that is eligible for relief under 42 Pa.C.S. § 

9543?

2) Did the lower court err by determining that [Appellant] was not 

eligible to have his [SVP] status retracted under ... Muniz?

Appellant’s Brief at 7.

In Appellant’s first issue, he contends that the court erred by treating 

his coram nobis petition as a PCRA petition. According to Appellant, the “crux 

of this action ... alleges that there was an irregularity in the PCRA hearing[,]” 

where Attorney Shrager’s testimony was “untruthful or otherwise grossly 

inaccurate....” Appellant’s Brief at 15, 16 (footnote and citations to the record 

omitted). Appellant contends that this claim is not cognizable under the PCRA, 

thus making him “eligible for habeas corpus or coram nobis relief....” Id. at 

17.

Appellant’s argument is unconvincing. Appellant is effectively asking 

this Court to reopen his prior PCRA action so he can re-litigate the underlying 

ineffectiveness claims against Attorney Shrager. Regardless of why he claims 

such relief is warranted, his claim boils down to an assertion of ineffective 

assistance of counsel, which is indisputably a cognizable claim under the 

PCRA. See 42 Pa.C.S. § 9543(a)(2)(ii). Appellant himself concedes this point, 

stating that his “ultimate complaint is that his trial counsel was ineffective....”

Appellant’s Brief at 15. Consequently, the trial court properly treated his 

present petition as a PCRA petition. Because that petition is untimely under 
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42 Pa.C.S. § 9545(b)(1) (requiring that any PCRA petition be filed within one 

year of the date on which Appellant’s judgment of sentence becomes final),

and Appellant does not identify any applicable timeliness exception under 42 

Pa.C.S. § 9545(b)(1)(i)-(iii), we discern no error by the PCRA court in its 

denial of his petition.2

In Appellant’s next issue, he claims that his SVP designation is illegal 

under Muniz, and this Court’s more recent decision in Commonwealth v. 

Butler, 173 A.3d 1212 (Pa. Super. 2017) (holding that SORNA’s provision 

directing a trial court to determine, by a preponderance of the evidence, 

____________________________________________

2 Even if the claim raised in Appellant’s coram nobis petition is not cognizable 

under the PCRA, we would still conclude that the court did not err in denying 

him relief. In Commonwealth v. Mangini, 386 A.2d 482 (Pa. 1978), our 

Supreme Court stated that the remedy of coram nobis is “generally regarded 

as an extraordinary one.” Id. at 490. “[T]he granting of a petition for such 

extraordinary relief is not proper unless the extrinsic facts were not only not 

discovered at the time of trial, but also not discoverable by the petitioner at 

such time by the exercise of due diligence.” Id. Here, as noted supra, 

Appellant did not explain in his coram nobis petition how, or when, he 

discovered Attorney Shrager’s inaccurate testimony; thus, he failed to 

demonstrate that he acted with due diligence in ascertaining this information. 

We also point out that Appellant first raised this issue about Attorney 

Shrager’s incorrect testimony in a motion for reconsideration filed with this 

Court on April 14, 2015. He reiterated that claim in his petition for allowance 

of appeal filed with our Supreme Court, which was denied on November 4, 

2015. Appellant then waited nearly a year-and-a-half to file his coram nobis 

petition. He offers no explanation for this delay. For these reasons, we would 

conclude the court did not err in denying his petition, even if it should not 

have been treated as a PCRA petition. 
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whether a defendant is an SVP is unconstitutional under Muniz and Alleyne 

v. United States, 133 S.Ct. 2151 (2013)). 

Before we may address the merits of Appellant’s legality of sentence 

claim, we must first determine if we have jurisdiction over his appeal from the 

PCRA court’s September 5, 2017 order. Commonwealth v. Fowler, 930 

A.2d 586, 592 (Pa. Super. 2007) (“[A] court may entertain a challenge to the 

legality of the sentence so long as the court has jurisdiction to hear the 

claim.”). As set forth in Pennsylvania Rule of Appellate Procedure 341, 

(a) General Rule.--Except as prescribed in paragraphs (d) and 

(e) of this rule, an appeal may be taken as of right from any final 

order of a government unit or trial court.

(b) Definition of Final Order.--A final order is any order that:

(1) disposes of all claims and of all parties; or

(2) RESCINDED

(3) is entered as a final order pursuant to paragraph (c) of this 

rule.

Pa.R.A.P. 341.

In the present case, the PCRA court’s September 5, 2017 order did not 

dispose of the claim raised in Appellant’s petition; instead, the order held any 

decision on that claim in abeyance until Appellant’s appeal from the court’s 

May 31, 2017 order was finalized. Moreover, the court did not state that the 

order was final and appealable. Accordingly, we conclude that the September 

5, 2017 order is not final and appealable. Thus, we quash Appellant’s appeal

at docket number 1419 WDA 2017.
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Order appealed at docket number 973 WDA 2017 affirmed. Appeal at 

docket number 1419 WDA 2017 quashed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/24/2018