Opinion
J-S54040-17 No. 382 WDA 2017
09-14-2017
COMMONWEALTH OF PENNSYLVANIA v. ANTHONY TUSWEET SMITH Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order February 10, 2017
In the Court of Common Pleas of Beaver County
Criminal Division at No(s): CP-04-CR-0000147-2005, CP-04-CR-0000967-2001, CP-04-CR-0001148-2005, CP-04-CR-0001151-2005 BEFORE: OTT, MOULTON, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Anthony Tusweet Smith, appeals pro se from the order entered in the Beaver County Court of Common Pleas dismissing his fifth Post Conviction Relief Act ("PCRA") petition as untimely. Appellant claims that governmental interference precluded him from obtaining exculpatory evidence. We affirm.
We adopt the facts and procedural history set forth by the PCRA court's opinions. See PCRA Ct. Op., 12/13/16, at 1-2; PCRA Ct. Op., 2/10/17, at 1. Appellant raises the following issues for review:
We note the PCRA court's Pa.R.Crim.P. 907(1) opinion states, in the first paragraph, that the instant PCRA petition is Appellant's fourth. However, as recognized by the PCRA court, on page two of its opinion, the instant PCRA petition represents Appellant's fifth petition.
The PCRA court filed a Pa.R.A.P. 1925(a) opinion on April 4, 2017 wherein the court specifically incorporated the reasoning set forth in its December 13, 2016 Rule 907 opinion and order and its February 10, 2017 final opinion and order.
I. Whether Title 42 Pa.C.S.A. § 9545(b)(1)(i)(ii)(2) provides remedy for PSP denial of subpoena for exculpatory PSP-PRI's & PSP-GIR's in violation of the demand rights of Pennsylvania Constitution Article I § 9, informed rights of united states constitution amendment VI and due process rights of United States Constitution Amendment XIV?
II. Whether the time constraint of title 42 Pa.C.S.A. § 9545 (b)(2) ignores the time attributed to the continuing non-disclosure of exculpatory PSP-PRI's & PSP-GIR's denying [Appellant] opportunity of subpoena in violation of Pennsylvania and U.S. constitutions?
III. Whether an evidentiary hearing is required to substantiate partial PSP-PRI's were provided to trial counsel that propelled the presentation of evidence from PSP case(s) other than [Appellant's]?
IV. Whether judgment of sentence violates Pennsylvania and United States constitutions where prosecutors arrest
and imprison [Appellant] through the use of a false report, testimony & evidence that has undermined the truth determining factors of the trial court and all previous counsel?Appellant's Brief at 4.
"PSP-PRI" refers to Pennsylvania State Police-Property Record of Incident.
"PSP-GIR" refers to Pennsylvania State Police-General Investigation Report. --------
After careful consideration of Appellant's brief, the record, and the decisions of the PCRA court, we affirm on the basis of the PCRA court's opinions. See PCRA Ct. Op., 12/13/16 at 3-6; PCRA Ct. Op., 2/10/17, at 1-3 (holding that the PCRA court lacked jurisdiction to review the merits of Appellant's petition where Appellant's fifth PCRA petition is facially untimely and he failed to plead and prove any of the statutory exceptions to the PCRA's time bar). Accordingly, we affirm the PCRA court's dismissal of Appellant's petition.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/14/2017
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