J-S47040-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ELWOOD JOHNSON
Appellant No. 503 EDA 2014
Appeal from the PCRA Order of January 17, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-0009065-2006
BEFORE: MUNDY, J., OLSON, J., and WECHT, J.
MEMORANDUM BY WECHT, J.: FILED OCTOBER 22, 2014
Elwood Johnson appeals the order entered on January 17, 2014,
dismissing his fourth petition under the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-46. In the underlying case, Johnson was convicted by a
jury of two counts each of possession of a controlled substance, corrupt
organizations, and criminal use of a communication facility, and one count
each of possession of a controlled substance with intent to deliver, criminal
conspiracy, and dealing in proceeds of unlawful activities.1 We affirm.
In our August 6, 2010 memorandum affirming Johnson’s judgment of
sentence on direct appeal, we set forth the following abbreviated factual and
procedural history of this case:
____________________________________________
1
35 P.S. § 780-113(a)(16); 18 Pa.C.S. §§ 911, 7512; 35 P.S. § 780-
113(a)(30); and 18 Pa.C.S. § 903, 5111, respectively.
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In September 2006, the authorities began investigating
[Johnson’s] involvement in a drug trafficking organization led by
Jose Cabrera. A confidential informant (“Informant 1”) told the
authorities [Johnson] possessed and sold cocaine. The
authorities subsequently used Informant 1 to conduct three
controlled purchases of narcotics from [Johnson]. During each
transaction, [Johnson] utilized the same black Honda. Through
surveillance, the police confirmed [Johnson] would often travel in
this vehicle to his mother’s residence at 1317 Locust Street in
Norristown. In October 2006, a second confidential informant
(“Informant 2”) told police [Johnson] stored illegal drugs at 1317
Locust Street.
The authorities subsequently obtained court orders to intercept
the telephone conversations of [Johnson], Mr. Cabrera, Abraham
Martinez, and other members of the Cabrera organization. The
intercepted telephone conversations revealed [Johnson] had
purchased cocaine from Mr. Cabrera on October 12, 2006.
Conversations between [Johnson] and Mr. Cabrera confirmed
[Johnson] was selling this cocaine, and [Johnson] anticipated
purchasing additional cocaine from Mr. Cabrera. On October 25,
2006, the authorities executed a search warrant at 1317 Locust
Street, recovering 248.41 grams of cocaine. That same day, the
authorities raided other properties associated with the Cabrera
organization. The authorities also arrested Mr. Cabrera and
Mr. Martinez, both of whom later agreed to testify against
[Johnson] at trial.
On December 24, 2007, [Johnson] filed a pretrial motion to
suppress the evidence obtained during the search of 1317 Locust
Street. In his motion, [Johnson] argued the police illegally
obtained the evidence, because probable cause did not exist to
support the issuance of the search warrant. [Johnson] further
argued the search warrant contained material
misrepresentations and omissions. On September 3, 2008, the
court denied [Johnson’s] suppression motion.
Following trial, a jury found [Johnson] guilty of [the above-
stated counts]. On February 5, 2009, the court sentenced
[Johnson] to an aggregate term of sixteen and one-half (16½) to
thirty-three (33) years’ imprisonment. On February 11, 2009,
[Johnson] filed post-sentence motions, challenging the weight
and sufficiency of the evidence and the discretionary aspects of
his sentence. The court denied [Johnson’s] post-sentence
motions on June 25, 2009.
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Commonwealth v. Johnson, 2033 EDA 2009, slip op. at 1-3 (Pa.
Super. August 6, 2010) (unpublished memorandum).
On direct appeal, Johnson challenged the sufficiency and the weight of
the evidence to sustain his convictions. Johnson also asserted a third issue,
challenging the trial court’s ruling denying his motion to suppress evidence
obtained from his residence. We rejected all three issues, and, on March 9,
2011, our Supreme Court denied Johnson’s petition for allowance of appeal.
See Commonwealth v. Johnson, 20 A.3d 485 (Pa. 2011) (table).
The PCRA court related the subsequent procedural history as follows:
On April 29, 2011, [Johnson] filed, pro se, a timely first petition
pursuant to the [PCRA], raising numerous claims of
ineffectiveness [of counsel] against [trial counsel]. By order
dated May 4, 2011, the undersigned appointed Henry S. Hilles,
III, Esquire, to represent [Johnson] as PCRA counsel. On
July 26, 2011, Mr. Hilles forwarded to this court a petition to
withdraw as counsel and a “no merit” letter, pursuant to
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc), stating Mr. Hilles’ opinion that [Johnson] was not entitled
to PCRA relief.
On September 26, 2011, [Johnson] filed, pro se, a document
entitled “Supplemental PCRA Motion.” This filing appeared to
consist entirely of a collection of documents that had already
been filed of record. [Johnson] asked this court to consider
these items in determining his PCRA petition, and we did so. A
copy of [Johnson’s] September 26, 2011 filing was forwarded by
the court to Mr. Hilles.
Following our own independent review of the record, we
determined that [Johnson] was not entitled to PCRA relief, and—
on October 3, 2011—we notified [Johnson], in accordance with
Pa.R.Crim.P. 907(1), of this court’s intention to dismiss his first
PCRA petition without a hearing. On October 26, 2011, the
undersigned received a copy of [Johnson’s] pro se response to
the court’s Rule 907(1) Notice. Following review, we determined
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that said response raised no issue entitling [Johnson] to PCRA
relief. Accordingly, by final order dated December 12, 2011, the
undersigned dismissed [Johnson’s] first PCRA petition and
granted Mr. Hilles’ petition to withdraw as [Johnson’s] PCRA
counsel.
On December 27, 2011, [Johnson] filed a timely notice of appeal
to the Superior Court. On September 20, 2012, [Johnson] filed,
pro se, a second PCRA petition. The undersigned dismissed this
second PCRA petition without prejudice as premature, given that
it was filed while appellate review of the dismissal of [Johnson’s]
first PCRA petition remained pending. See Commonwealth v.
Lark, 746 A.2d 585 (Pa. 2002).
By per curiam memorandum dated December 18, 2012, the
Superior Court vacated our order dismissing [Johnson’s] first
PCRA petition on the grounds that the record did not reflect that
PCRA counsel—Mr. Hilles—had reviewed and addressed either
[Johnson’s] September 26, 2011 “Supplemental PCRA Motion” or
[Johnson’s] pro se October 26, 2011 response to this court’s
Rule 907(1) Notice, which [Johnson] had filed before Mr. Hilles
was granted leave to withdraw as [Johnson’s] counsel. The
Superior Court remanded the case “for the reappointment of
counsel to review [Johnson’s] pro se correspondence, and, if
necessary, amend his initial Finley letter in order to document
his reasons why [Johnson’s] claims are meritless.”
In accordance with the directive of the Superior Court, the
undersigned reappointed Mr. Hilles as [Johnson’s] PCRA counsel
by order dated December 20, 2012, directing Mr. Hilles to review
[Johnson’s] “Supplemental PCRA Motion” and [Johnson’s]
response to the court’s Rule 907(1) Notice.
****
On May 31, 2013, [following a hearing,] the undersigned entered
this [c]ourt’s final order dismissing [Johnson’s] first PCRA
petition, stating our reasoning for the dismissal at some length
in our order.4 [Johnson] did not appeal from our May 31, 2013
final order.
_________________
4
Our order also dismissed as premature and without
prejudice a third PCRA petition that [Johnson] had filed on
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December 31, 2012, before litigation of his first PCRA
petition had concluded. See Lark, supra.
On July 18, 2013, [Johnson] filed, pro se, the instant PCRA
petition, his fourth. On September 17, 2013, the
Commonwealth filed an Answer and Motion to Dismiss said
petition. On September 30, 2013, [Johnson] filed a response to
the Commonwealth’s Answer and Motion to Dismiss.
Upon review of the voluminous record in this case, the
undersigned determined that the claims raised in [Johnson’s]
fourth PCRA petition were time-barred. Accordingly, on January
2, 2014, the undersigned entered this court’s Notice pursuant to
Pa.R.Crim.P. 907(1), informing [Johnson] of our intention to
dismiss his fourth PCRA petition without a hearing. [Johnson]
filed a timely response to our Rule 907(1) Notice. Determining
that said response failed to establish [Johnson’s] entitlement to
PCRA relief or to raise any issue requiring a hearing, the
undersigned entered this court’s final order dismissing
defendant’s fourth PCRA petition on January 17, 2014.
[Johnson] filed his notice of appeal to the Superior Court of
Pennsylvania on February 11, 2014. On February 25, 2014,
[Johnson] filed his [concise] statement of errors complained of
on appeal, pursuant to Pa.R.A.P. 1925(b).
PCRA Court Opinion (“P.C.O.”), 4/14/2014, at 2-5 (citations modified;
footnote omitted; emphasis in original).
Before this Court, Johnson raises the following issues:
I. Did not the PCRA court err and deny [Johnson] due
process of law under the state and federal constitution[s] and
[Johnson’s] right to a proper legal evaluation of the reliability
and effect of [Brady] material[2] by dismissing [Johnson’s]
petition as untimely?
____________________________________________
2
See Brady v. Maryland, 373 U.S. 83, 87 (1963) (“[S]uppression by
the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.”).
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II. Did not the PCRA court err by dismissing [Johnson’s] PCRA
petition as untimely where [Johnson] asserts that the evidence
[Johnson] presented in [Johnson’s] PCRA petition constitutes
previously undisclosed [Brady] material and after-discovered
evidence placing [Johnson] squarely within the timeliness
exceptions to the one-year limitation period?
Brief for Johnson at 3.
Our standard of review on appeal from an order denying a PCRA
petition is whether the determination of the PCRA court is supported by the
evidence of record and is free of legal error. See Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). The PCRA court’s findings will not
be disturbed unless there is no support for the findings in the certified
record. See Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.
Super. 2001). However, before we may review the PCRA court’s decision
substantively, we must confirm our jurisdiction to consider Johnson’s
petition.
It is well-established that the PCRA time limits are jurisdictional, and
must be strictly construed, regardless of the potential merit of the claims
asserted. Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. Super.
2011); Commonwealth v. Murray, 753 A.2d 201, 202-03 (Pa. 2000),
abrogated on other grounds by Commonwealth v. Brown, 943 A.2d 264
(Pa. 2008). “[N]o court may properly disregard or alter [these filing
requirements] in order to reach the merits of the claims raised in a PCRA
petition that is filed in an untimely manner.” Murray, 753 A.2d at 203;
see Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).
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Despite facial untimeliness, a tardy PCRA petition nonetheless will be
considered timely if (but only if) the petitioner pleads and proves one or
more of the exceptions to the one-year time limit enumerated in
subsection 9545(b) of the PCRA, which provides:
(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
(i) the failure to raise the claim previously was the
result of interference by government officials with the
presentation of the claim in violation of the Constitution or
laws of this Commonwealth or the Constitution or laws of
the United States;
(ii) the facts upon which the claim is predicated were
unknown to the petitioner and could not have been
ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that
was recognized by the Supreme Court of the United States
or the Supreme Court of Pennsylvania after the time period
provided in this section and has been held by that court to
apply retroactively.
(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the date the claim
could have been presented.
42 Pa.C.S. § 9545(b). When an appellant files a facially untimely petition
under the PCRA, and fails to plead and prove one or more of the exceptions
to the PCRA’s one-year jurisdictional time limit, the petition is untimely and
we must deny the appellant relief. Gamboa-Taylor, 753 A.2d at 783.
Moreover, as reflected in the plain language of subsection 9545(b)(2), even
when one of the exceptions may apply to a given petition, it will excuse the
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untimeliness only if the petition was filed within sixty days of the date that
the conditions underlying the exception came to light. Id. at 784.
The PCRA court aptly summarized the substance of [Johnson’s]
attempts to invoke the government interference and newly-discovered fact
exceptions to the PCRA’s jurisdictional one-year time bar as follows:
[Johnson’s] first claim is that the Commonwealth violated
Pa.R.Crim.P. 564, governing amendments to the bills of
information, by filing a complaint on November 24, 2006 that
included charges that were not included in a complaint
previously filed on October 30, 2006 that was subsequently
withdrawn. [Johnson] contends that he was entitled to dismissal
of the additional charges in the November 24, 2006 complaint
because of the alleged violation of Rule 564, and because the
affidavit of probable cause attached to the October 30, 2006
complaint did not establish probable cause for the additional
charges added in the November 24, 2006 complaint.
[Johnson] avers that he was not aware of the existence of his
claim concerning the alleged violation of [Rule 564] until August
17, 2012, when he received a copy of the October 30, 2006
complaint for the first time. [Johnson] contends that this
October 30, 2006 complaint constitutes newly-discovered
evidence entitling him to a review on the merits of his claim
under authority of § 9545(b)(1)(ii). [Johnson] further contends
that the Commonwealth’s “failure” to provide him with a copy of
the October 30, 2006 complaint prior to August 17, 2012
constitutes a violation of [Brady, supra], establishing
governmental interference with the presentation of his claim and
entitling him to a review on the merits of the claim under
authority of § 9545(b)(i).
[Johnson’s] second claim is that his trial counsel . . . provided
him with ineffective assistance by stipulating to the entry into
evidence at [Johnson’s] April 28, 2008 suppression hearing of a
lab report relating to criminal activity with which [Johnson] was
not charged. [Johnson] avers that he was not aware of this
claim until September 21, 2012, when he received a copy of the
lab report for the first time. [Johnson] contends that the lab
report constitutes newly-discovered evidence entitling him to a
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review of the merits of his claim under authority of
§ 9545(b)(1)(ii). [Johnson] further contends that the
Commonwealth’s “failure” to provide him with a copy of the lab
report prior to September 21, 2012 constitutes a violation of
[Brady, supra], establishing governmental interference with the
presentation of his claim and entitling him to a review on the
merits of the claim under authority of § 9545(b)(1)(i).
P.C.O. at 8-9.
The PCRA court determined that Johnson failed to plead and prove that
either exception applied to either claim, because Johnson failed to bring
these claims within sixty days of the date the claim could have been
presented. In effect, the PCRA court rejected Johnson’s reliance on his 2012
receipt of the documents in question as the relevant time for triggering the
applicable sixty-day clock.
With respect to the first issue, pertaining to Johnson’s alleged
ignorance of the October 30, 2006 complaint until August 2012, the PCRA
court reasoned as follows:
[Johnson] has acknowledged being present at his preliminary
arraignment on November 6, 2006, at which time he was
informed of the charges as set forth in the October 30, 2006
complaint. [Johnson] has further acknowledged being present at
his preliminary arraignment on November 24, 2006, at which
time he was informed of the charges against him as set forth in
the November 24, 2006 complaint—including the additional
charges of which he was not informed on November 6, 2006
because they were not present in the October 30, 2006
complaint. [Johnson] thus knew on November 24, 2006 that he
faced charges in addition to the charges of which he was
informed on November 6, 2006; [Johnson] did not require a
copy of the October 30, 2006 complaint to inform him of this
fact. Any PCRA claim related to the propriety of the additional
charges included in the November 24, 2006 complaint thus
could—and should, through the exercise of reasonable
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investigation and due diligence—have been raised in [Johnson’s]
first, timely PCRA petition.
Id. at 10-11 (emphasis in original). Thus, the PCRA court found that,
because Johnson failed to plead and prove that he had raised the claim at
issue within sixty days of when he could have done so, he could not gain the
benefit of an exception to the PCRA’s one-year time limit.
Johnson’s second issue concerns lab evidence that was admitted
against him at trial, which allegedly constitutes exculpatory or impeachment
evidence. He argues that he received this evidence for the first time in
September of 2012. The PCRA court found that this claim, too, was
untimely raised for want of diligence:
[Johnson] contends that [trial counsel] was ineffective for
stipulating to the entry into evidence of this lab report because it
related to criminal activity with which [Johnson] was not
charged. [Johnson] contends that he could not have raised this
claim in a timely fashion because he was not provided with a
copy of the lab report until September 21, 2012. . . .
The record reflects on its face that [Johnson] was present in the
courtroom during his April 28, 2012 suppression hearing. The
issues presented were whether an affidavit requesting a warrant
for a search of the residence of [Johnson’s] mother . . .
established the requisite probable cause and, if so, whether that
probable cause had “gone stale.” It was the Commonwealth’s
contention that [Johnson] had sold cocaine that he had removed
from the residence on three occasions to a confidential informant
in “controlled buys.” Although [Johnson] was not charged
criminally for these controlled buys, the buys were offered by the
Commonwealth as supporting the existence of probable cause
for a search of the residence. During the course of the
suppression hearing, [trial counsel]—in [Johnson’s] presence—
stipulated to a lab report that determined that the substance the
Commonwealth contended was exchanged during the controlled
buys was, in fact, 8.49 grams of cocaine.
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Given [Johnson’s] presence at the time the stipulation was
entered into—and explained—on the record, [Johnson] plainly
cannot be heard to contend that it was not until September 21,
2012 that he learned that a lab report referencing criminal
activity for which he was not charged had been entered into
evidence at his suppression hearing. Far from providing
[Johnson] with a newly-discovered fact, [Johnson’s] receipt of
the lab report on September 21, 2012 simply provided him with
a new source for a fact of which he had been aware since
April 28, 2008. Any PCRA claim related to the entry of the lab
report into evidence at [Johnson’s] April 28, 2008 suppression
hearing could, and should, have been raised in [Johnson’s] first
timely PCRA petition.
Id. at 12-13.
The PCRA court’s characterization of the procedural history and
Johnson’s awareness of the events is borne out by the record. Indeed, by
Johnson’s own reckoning, he learned of the existence of the October 30,
2006 complaint in May 2010, when a magisterial district judge transmitted
to Johnson a copy of a docketing transcript that referred to the October 30,
2006 complaint. It was this discovery that occasioned what he asserts was
a campaign lasting more than two years to obtain a copy of that complaint.
Brief for Johnson at 11. Similarly, Johnson asserts that he only obtained the
lab report at issue in September 2012 after requesting it “with a Federal
subpoena from the National Medical Lab” earlier in that same month, “after
requesting a copy from the Montgomery County District Attorney’s Office
and the Common Pleas Court for over two (2) years.” Id. at 13. Thus, by
his own assertions, Johnson was aware of the report, and presumably was
interested in its contents, at least as early as September of 2010. In
essence, Johnson concedes that he was aware of both documents, and
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desirous of obtaining and reviewing them, at least as early as May 2010
(with respect to the initial criminal complaint) and September 2010 (with
respect to the lab report).
These dates plainly precede multiple filings associated with Johnson’s
first PCRA petition. Johnson’s pro se first PCRA petition was filed on April
29, 2011, well after he took an interest in both of the documents upon which
he founds the instant claims for relief. Appointed PCRA counsel filed its “no
merit” letter on May 4, 2011, later still. And it was not until July 26, 2011
that Johnson filed a pro se “Supplemental PCRA Motion.” Johnson does not
assert, and the record does not suggest, that Johnson raised either of these
issues in any of those filings, either directly or by reference to his desire
(and efforts) to obtain those documents.
This situates Johnson on the horns of a dilemma, either of which is
fatal to his claims: If he did raise any aspect of the instant concerns in his
first PCRA petition, the PCRA’s bar on the relitigation of issues that have
been “raised and decided in a proceeding collaterally attacking the conviction
or sentence” would preclude review of those same issues now.
See 42 Pa.C.S. § 9544(a)(3). Conversely, if he did not in any way address
himself to concerns of which he plainly was aware at the time he filed his
first petition, the issues would be waived under the PCRA because Johnson
“could have raised it but failed to do so before trial, at trial, during unitary
review, on appeal or in a prior state post-conviction proceeding.” 42 Pa.C.S.
§ 9544(b).
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Johnson does not dispute that he was present and informed of the
charges contained in the Commonwealth’s October 30, 2006 criminal
complaint at his first arraignment on November 6, 2006, and that he was
present and informed of the charges contained in the Commonwealth’s
amended or substituted criminal complaint of November 24, 2006 at his
second arraignment on November 24. The same essential reasoning applies
to the complained-of lab report. Johnson does not dispute his presence at
the 2008 pre-trial suppression hearing at which trial counsel stipulated to
the admission of the report, the substance of which was addressed at that
hearing. While counsel’s stipulation effectively foreclosed challenging the
report’s admission before or during trial or on direct appeal, it could have
been presented as a basis for an ineffective assistance of counsel claim in
Johnson’s first petition.3
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3
As well, the information upon which the after-discovered fact exception
is invoked “must not be of public record and not be facts that were
previously known but presented through a newly discovered source.”
Commonwealth v. Edminston, 65 A.3d 339, 352 (Pa. 2013). Both of the
documents in question were of record, and thus constitute public records.
However, that fact does not necessarily foreclose Johnson’s appeal to the
government obstruction exception to the time bar, insofar as the
government, by way of obstructive behavior, may undermine the basis for
the public records rebuttal of a newly-discovered fact argument: After all, if
the public records in question will not be disclosed by a government agency,
as Johnson alleges in this case, the records are not “public” in the strong
sense, especially for an inmate somewhat at the mercy of officials in
possession of the documents in question. In any event, this latter
observation does not relieve Johnson of establishing that he did not have
prior knowledge of the subject documents sufficient to enable him to pursue
these issues in his timely first PCRA petition.
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The exceptions to the PCRA time bar are limited and to be construed
strictly. Moreover, it is the petitioner’s burden to plead and prove the
application of one or more exceptions to the claims he wishes to bring in a
facially untimely petition to establish the PCRA court’s jurisdiction. It is not
our place to interpolate arguments on behalf of a litigant where none is
ventured by the litigant. See In re S.T.S., Jr., 76 A.3d 24, 42
(Pa. Super. 2013) (quoting Commonwealth v. B.D.G., 959 A.2d 362, 371-
72 (Pa. Super. 2008)) (“This Court is neither obliged, nor even particularly
equipped, to develop an argument for a party.”). Consequently, we find that
the PCRA court did not err or abuse its discretion in finding that it lacked
subject matter jurisdiction over Johnson’s fourth petition under the PCRA
and dismissing Johnson’s petition on that basis.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/2014
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