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[U] Commonwealth v. Smith

Superior Court of Pennsylvania

February 28, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
KEITH SMITH Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order April 5, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at Nos.: CP-51-CR-0503171-2000 CP-51-CR-0503181-2000

BEFORE: GANTMAN, J., OLSON, J., and WECHT, J.

MEMORANDUM

WECHT, J.

Keith Smith appeals, pro se, the April 5, 2013 order dismissing his fifth petition for relief under the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-46, as untimely. We affirm.

On September 25, 2001, Smith was convicted by a jury of first-degree murder, possessing an instrument of crime, and recklessly endangering another person.[1] In our memorandum affirming Smith's judgment of sentence, we summarized the pertinent facts underlying these convictions as follows:

[O]n October 15, 1999, at approximately 3:30 p.m., the victim Clifton Walker was shot at the intersection of 34th and Mt. Vernon Streets, Philadelphia. At the time of the shooting, the victim was with a group of friends and acquaintances, including Commonwealth witnesses Huey Hewitt and Kirk Dunson. The shooter stood in the intersection and fired at least eight shots, hitting the victim from the rear three times. Two of the shots entered the victim's buttocks; the fatal bullet entered at the shoulder blade, severed the aorta, exited and hit the victim's chin and exited a second time. The police obtained statements from the two above-named witnesses on the evening of the incident in which each of them identified [Smith] as the shooter. At a later time, each of the witnesses recanted their identifications of [Smith] and attributed their inculpatory statements to police misconduct, i.e., withholding of medical treatment of Hewitt and physical abuse of Dunson. At trial, neither witness identified [Smith] as the shooter. The Commonwealth was permitted to utilize their prior inconsistent statements as substantive evidence of Smith's guilt.

Commonwealth v. Smith, No. 554 EDA 2002, slip op. at 1-2 (Pa. Super. May 6, 2003). On September 26, 2001, Smith was sentenced to life imprisonment. On May 6, 2003, we affirmed the judgment of sentence. Id. at 1, 6. The Pennsylvania Supreme Court denied Smith's petition for allowance of appeal. Commonwealth v. Smith, 836 A.2d 122 (Pa. 2003) (per curiam).

On June 24, 2004, Smith filed his first PCRA petition. Following the appointment of counsel and the filing of an amended petition, the PCRA court dismissed the petition without a hearing. On June 5, 2007, we affirmed the denial. Commonwealth v. Smith, No. 1399 EDA 2006, slip op. at 7 (Pa. Super. June 5, 2007). On March 14, 2008, the Pennsylvania Supreme Court denied Smith's petition for allowance of appeal. Commonwealth v. Smith, 945 A.2d 170 (Pa. 2008) (per curiam).

On December 9, 2009, Smith filed a second pro se PCRA petition, which the PCRA court dismissed as untimely on August 20, 2010. On November 30, 2011, we also found the petition to be untimely, and affirmed the PCRA court's dismissal order. Commonwealth v. Smith, No. 2552 EDA 2010, slip op. at 1, 7 (Pa. Super. Nov. 30, 2011). On June 20, 2012, the Pennsylvania Supreme Court denied Smith's petition for allowance of appeal. Commonwealth v. Smith, 47 A.3d 847 (Pa. 2012) (per curiam).

Smith filed his third and fourth PCRA petitions on March 27, 2012 and August 15, 2012, respectively. The PCRA court dismissed both petitions as untimely on February 12, 2013. On February 11, 2013, Smith filed his fifth PCRA petition. On March 14, 2013, the PCRA court issued to Smith a notice of the court's intention to dismiss the PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907(1). On March 24, 2013, Smith filed a written response to the PCRA court's notice. On April 5, 2013, the PCRA court entered an order dismissing Smith's fifth petition.

On April 22, 2013, Smith filed a notice of appeal from the April 5, 2013 order. The PCRA court did not direct Smith to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Smith did not file one. Nonetheless, on June 11, 2013, the PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a).

Smith raises the following six questions for our review:
A. Whether the PCRA court "erred" in dismissing [Smith's] second or subsequent petition as untimely, despite [Smith] satisfying the (60) sixty day rule/the after-discovered facts exception, to the PCRA's time-bar, set forth in/under Commonwealth v. Bennett, 930 A.2d ...

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