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Commonwealth v. Smith

Superior Court of Pennsylvania

July 20, 2018

KEITH SMITH, Appellant

          Appeal 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. [*]


          BENDER, P.J.E.

         Appellant, 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 [Appellant]'s guilt.
Commonwealth v. Smith, No. 554 EDA 2002, [unpublished memorandum] at 1-2 (Pa.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. 2003)[].
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).

         The matter sub judice arose as follows:

         The 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 omitted).

         Appellant 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 shooting?
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 review?
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 non-waivable?
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 guilt ...

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