J-S65008-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ANTHONY DUANE SMITH

Appellant No. 1313 WDA 2015

Appeal from the PCRA Order July 15, 2015

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0016177-1999

BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 09, 2016

Anthony Duane Smith appeals pro se from the trial court’s order 

denying his third petition filed pursuant to the Post Conviction Relief Act 

(PCRA), 42 Pa.C.S. §§ 9541-9546.1 After careful review, we affirm.

On February 26, 2001, following a bench trial, the court convicted 

Smith of first-degree murder and sentenced him to life imprisonment 

without parole. This Court affirmed the judgment of sentence on May 7, 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1

 The standard of review of an order denying a PCRA petition is whether 

that determination is supported by the evidence of record and is free of legal 

error. The PCRA court’s findings will not be disturbed unless there is no 

support for the findings in the certified record. Commonwealth v. 

Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012).
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2004, and our Supreme Court denied Smith’s petition for allowance of 

appeal on October 12, 2004. On September 28, 2005, Smith filed his first 

PCRA petition, which the court ultimately denied on February 15, 2008. 

Smith appealed that decision and this Court affirmed the PCRA court on 

December 16, 2008. Smith filed a second PCRA petition on April 25, 2012. 

On June 22, 2012, the PCRA court issued its Pa.R.Crim.P. 907 notice of 

intent to dismiss; Smith filed a response on September 6, 2012. On 

February 27, 2013, the PCRA court dismissed Smith’s petition as untimely. 

Smith filed an appeal and this Court affirmed the PCRA court’s order on May 

6, 2014, finding the petition untimely and no section 9545(b)(1) timeliness 

exception applicable. See Commonwealth v. Smith, 548 WDA 2013 (Pa. 

Super. 2014) (judgment order filed May 6, 2014).

On October 17, 2014, Smith filed the instant PCRA petition, his third, 

pro se. After the court issued its Rule 907 notice, the court permitted Smith 

to file an amended petition. On July 15, 2015, the court denied Smith’s 

petition. This appeal follows.

On appeal, Smith presents the following issues for our consideration:

(1) Whether the PCRA Court erred in denying petitioner’s PCRA 

Petition without an evidentiary hearing to allow the court 

to consider the testimony and reason why attorney Patrick 

J. Thomassey was ineffective by failing to submit 

Petitioner’s newly discovered exculpatory evidence under 

42 Pa.C.S. § 9543(a)(2)(iv) within the 60[-]day required 

time period, where Petitioner presented evidence that the 

affidavits w[ere] fax[ed] to attorney Patrick J. Thomassey 

within the exception codified at 42 Pa.C.S. § 

9545(b)(1)(ii).
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(2) Did PCRA Counsel render deficient performance where 

Petitioner’s PCRA petition raising newly/after discovered 

evidence was dismissed as untimely, due to PCRA 

counsel’s failure to submit [a] PCRA petition within 60 days 

of receiving newly/after discovered evidence?

Generally, a petition for PCRA relief, including a second or subsequent 

petition, must be filed within one year of the date the judgment is final. See

42 Pa.C.S.A. § 9545(b)(3); see also Commonwealth v. Alcorn, 703 A.2d 

1054 (Pa. Super. 1997). There are, however, exceptions to the time 

requirement, set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii). Where 

the petition alleges, and the petitioner proves, that an exception to the time 

for filing the petition is met, the petition will be considered timely. These 

exceptions include interference by government officials in the presentation of 

the claim, after-discovered facts or evidence, and an after-recognized 

constitutional right. See Commonwealth v. Gamboa-Taylor, 753 A.2d 

780, 783 (Pa. 2000). A PCRA petition invoking one of these exceptions must 

“be filed within 60 days of the date the claims could have been presented.” 

Id; see also 42 Pa.C.S.A. § 9545(b)(2). The timeliness requirements of the 

PCRA are jurisdictional in nature and, accordingly, a PCRA court cannot hear 

untimely petitions. Commonwealth v. Robinson, 837 A.2d 1157 (Pa. 

2003). 

Instantly, Smith’s judgment of sentence became final, for purposes of 

the PCRA, on January 10, 2005. Smith filed the current petition on October 

17, 2014, more than nine years after his judgment of sentence became final. 

Thus, Smith’s petition in facially untimely. 42 Pa.C.S.A. § 9545(b)(3). In 
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his Pa.R.A.P. 1925(b) statement, Smith claims that prior counsel was 

ineffective for failing to timely present two affidavits of witnesses, Lowery 

and Andrews, which would have provided exculpatory evidence and entitled 

him to a new trial.

Allegations of ineffective assistance of counsel cannot overcome the 

jurisdictional timeliness requirements of the PCRA. See Commonwealth v. 

Wharton, 886 A.2d 1120, 1127 (Pa. 2005). See also Commonwealth v. 

Murray, 753 A.2d 201 (Pa. 2000) (court properly dismissed untimely PCRA 

petition claiming ineffectiveness for counsel’s failure to file direct appeal, 

where defendant did not plead and prove applicability of time-bar 

exceptions).2 Therefore, Smith has failed to properly plead and prove an 

exception to the PCRA time bar. Accordingly, the trial court properly denied 

his third, untimely petition.

Order affirmed.3

____________________________________________

2 We note that in his prior PCRA petition and collateral appeal, Smith argued 

that the PCRA court should have granted him an evidentiary hearing based 

on the testimony provided in Lowery’s and Andrew’s affidavits. That claim is 

the underlying substantive claim to his current ineffectiveness claim.

 

3 To the extent that Smith’s amended petition raises the “newly discovered 

evidence” exception (based on alleged statements made by Gregory Parker 

to a privately-hired investigator) to the PCRA’s time bar provisions, we find 

that he has not preserved this claim on appeal. Not only does Smith fail to 

include that argument in his pro se brief, but he has also failed to include it 

in his Rule 1925(b) statement. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not 

included in the Statement and/or not raised in accordance with the 

provisions of this paragraph (b)(4) are waived.”).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/9/2016