from the PCRA Order Entered May 8, 2017 In the Court of
Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0503171-2000 CP-51-CR-0503181-2000
BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.
Keith Smith, appeals from the order dismissing, as untimely,
his petition filed pursuant to the Post-Conviction Relief Act
("PCRA"), 42 Pa.C.S. §§ 9541-9546. After
careful review, we affirm.
On September 25, 2001, [Appellant] was convicted by a jury of
first-degree murder, [18 Pa.C.S. § 2502(a), ] possessing
an instrument of crime, [18 Pa.C.S. § 907, ] and
recklessly endangering another person, [18 Pa.C.S. §
2705]. In our memorandum affirming [Appellant]'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 [Appellant] as the shooter. At a later time,
each of the witnesses recanted their identifications of
[Appellant] 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 [Appellant] as the shooter. The
Commonwealth was permitted to utilize their prior
inconsistent statements as substantive evidence of
Commonwealth v. Smith, No. 554 EDA 2002,
[unpublished memorandum] at 1-2 (Pa. Super. [filed] May 6,
2003). On September 26, 2001, [Appellant] was sentenced to
life imprisonment. On May 6, 2003, we affirmed the judgment
of sentence. Id. at 1, 6. The Pennsylvania Supreme
Court denied [Appellant]'s petition for allowance of
appeal. Commonwealth v. Smith, 836 A.2d 122 (Pa.
On June 24, 2004, [Appellant] 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,
[unpublished memorandum] at 7 (Pa. Super. [filed] June 5,
2007). On March 14, 2008, the Pennsylvania Supreme Court
denied [Appellant]'s petition for allowance of appeal.
Commonwealth v. Smith, 945 A.2d 170 (Pa. 2008).
On December 9, 2009, [Appellant] 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, [unpublished memorandum] at 1, 7 (Pa.
Super. [filed] Nov. 30, 2011). On June 20, 2012, the
Pennsylvania Supreme Court denied [Appellant]'s petition
for allowance of appeal. Commonwealth v. Smith, 47
A.3d 847 (Pa. 2012).
[Appellant] 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, [Appellant] filed his fifth PCRA
petition. … On April 5, 2013, the PCRA court entered
an order dismissing Smith's fifth petition.
Commonwealth v. Smith, No. 1264 EDA 2013,
unpublished memorandum at 1-3 (Pa. Super. filed February 28,
2014). This Court affirmed the denial of Appellant's
fifth PCRA petition as untimely on February 28, 2014.
Id. at 10. Our Supreme Court denied his petition for
allowance of appeal on October 7, 2014. Commonwealth v.
Smith, 97 A.3d 817 (Pa. 2014).
matter sub judice arose as follows:
instant [PCRA] petition was filed on October 14, 2014,
followed by several amended petitions dated February 20,
2015, March 9, 2015, December 4, 2015 and a PCRA petition
styled as a writ of habeas corpus on January 4,
2017. Pursuant to
Pa.R.Crim.P. 907, th[e PCRA] court sent a notice of intent to
dismiss the petition as untimely without exception on March
22, 2017. In response to th[e] court's 907 notice,
[Appellant] filed another petition on April 6, 2017. Th[e
PCRA] court formally dismissed the petition on May 8, 2017.
[Appellant] timely filed a notice of appeal to the
Pennsylvania Superior Court on May 23, 2017.
PCRA Court Opinion ("PCO"), 7/25/17, at 2 (footnote
now presents the following questions for our review, which we
set forth verbatim:
1. Whether the PCRA Court erred in denying [appellant's]
Post-Conviction Petition as untimely when (appellant] did
established that Government officials interfered with the
presentation of the claim, failure to turn over impeachment
and exculpatory evidence (David Jefferson's] statement
that was given to detectives was in violation of Brady within
the plain language of the timeliness exception set forth at
42 Pa C.S.A 9545 (b) (1) (i) (iii) and (after - discovered
facts claim} section 9545 (b) (1) (ii), and filing claim
within sixty days (60) satisfying 9545 (b) (2)?
2. Whether (appellant} is entitled to a new trial or remand
for an evidentiary hearing based upon the affidavit of (David
Jefferson's} admitting that he gave a statement to
detectives on 10/15/1999 that he was with (Clift Walker} the
victim in this case prior to the shooting and stated within
affidavit (Clift Walker} had words with males from
North-Philly, was impeachment evidence and exculpatory to the
argument of the witnesses out-of court statements that was
admitted at trial, which (after-discovered fact} was provided
to (appellant} by way of affidavit by (David Jefferson} sent
to (appellant} by mail?
3. Whether the District Attorney's failure to disclose
impeachment and exculpatory evidence to (appellant} proving
his innocence, that he did not shoot (Cliff Walker} because
of an argument, and Whether (appellant's} confrontation
Clause Rights were violated under the sixth Amendment
"to be confronted with witnesses against him" those
whom were actually present for the argument which the
prosecution used towards proving (appellant's} guilt
violates the prosecutions obligation under the Fourteenth
Amendment Due Process and substantive Due Process right?
4. Whether trial counsel was ineffective for failing to
investigate and present at trial impeachment and exculpatory
evidence, especially (Kelly Smith} who was not on the corner
of 34th and MT. Vernon street standing around with males and
who did not argue with (Clift Walker} prior to him being
shot, and was not with (appellant} in a vehicle before the
5. Whether the PCRA Court erred and improperly dismissed
(appellant's} PCRA Petition as untimely without an
evidentiary hearing to review whether trial counsel was
ineffective assistance by failing to investigate and call
Rasheeda Brennan, Malik Walker, Edward Johnson, whom had
knowledge of (appellant's} whereabouts as alibi
witnesses, violated (appellant's} sixth Amendment right
"to obtain witnesses in his favor"?
6. Whether the PCRA Court erred in denying (appellant}
Post-conviction Petition as untimely filed, when (appellant}
filed several issues under Pa.R.Crim.P. 905(A), requesting
right to Amend, which such right shall be freely allowed to
achieve substantial justice, where (appellant} clearly filed
amendment before PCRA Court Order of May 8, 2017?
7. Whether the PCRA Court erred by denying (appellant} Habeas
Corpus Review under the "Legality of sentence
claim", which cannot be waived, where the PCRA Court
does not subsume any remedy that address the challenge of the
penal statute 18 Pa.C.S.A. 1102(A) constitutionality, as to
whether a Judge has statutory authority to impose a further
condition upon a sentence without parole, pursuant 1102(A)?
8. Whether the PCRA Court erred by denying relief, vacation
of sentence, remand, evidentiary hearing, as to the
Pennsylvania statute of 18 Pa. C.S.A. 1102(A) violates Due
Process; is unconstitutional and void under the Vagueness
Doctrine: because the statute fails to give a person of
ordinary intelligence fair notice that its true penalty is
life imprisonment "without parole", and the
legality of sentence is in question/ subject matter
jurisdiction which cannot be waived?
9. Whether the PCRA Court erred by denying relief Due, where
the sentencing Court has never docketed a "sentencing
order", nor furnished one upon (appellant} to have
properly challenged the legality of the sentence imposed from
the actual sentencing order and contents stated therein,
did/does violate Due Process and substantive Due Process
rights, where (appellant} could have raised the claim within
one year of his judgment becoming final, had the sentencing
order been docketed and provided by the Clerk of Courts/
judge, thus making the sentence legality a question of merits
10. Whether the PCRA Court erred, by failing to review the
Law, where the trial Court violated (appellant's} Due
Process right of the Fifth, Fourteenth, sixth Amendment and
pursuant Pa. Constitution article 1 sections 9, 10, as the
trial court was without jurisdiction to try, convict or
sentence (appellant}, : because the Commonwealth criminal
complaint/information was void for vagueness Doctrine, and
failed to confront (appellant} with formal and specific
accusations of the crimes charged for Recklessly endangering
another Person, and first degree Murder elements, as a
challenge to a Courts subject matter jurisdiction is
11. Did the Pcra Court erred, by failing to address the claim
of whether the [appellant's] 5th, 6th, 14th Amendment
constitution rights were violated by the trail Courts
instruction that, "there was no evidence of voluntary
manslaughter, nor elements of manslaughter in this case and
those are not for your consideration here", when the
commonwealth's case in chief was predicated upon a
killing caused by provocation and heat of passion? N.T.1200
12. Did the PCRA Court erred, by failing to address the claim
of whether the Commonwealth suppressed, withheld,
misrepresented material evidence of the autopsy's
findings, that was favorable to [appellant] and material to