J-S74015-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY JOHNSON :
:
Appellant : No. 3443 EDA 2016
Appeal from the PCRA Order October 26, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0203601-2001
BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 29, 2017
Anthony Johnson appeals from the October 26, 2016 order denying
him PCRA relief. We affirm.
On August 17, 2001, a jury convicted Appellant of rape, involuntary
deviate sexual intercourse, robbery, aggravated assault, and aggravated
indecent assault. The convictions were based upon the following events. On
the evening of November 6, 2000, victim A.M. exited the trolley in
Philadelphia after work and began walking home. Appellant approached her
on Windsor Avenue, placed his hands over her mouth, and dragged her into
an alley. Appellant demanded money, and became agitated when the victim
said that she had none.
Appellant searched a gym bag that A.M. was carrying, stole her cell
phone, and pushed her further into the alley. When the victim screamed,
Appellant beat her until she was nearly unconscious. Appellant then
J-S74015-17
penetrated A.M.’s vagina and anus with his penis, and inserted his penis into
her mouth and ejaculated. After Appellant fled, the victim spat the semen
from her mouth into a shirt from her gym bag. The victim went home, and
her husband immediately took her to the hospital, where the shirt with the
semen was given to police. Police were informed that A.M.’s assailant had
taken her cell phone, and they began to monitor its use. The day after the
crime, the phone was used twice to contact Franklin Harris, who told police
that Appellant had called him from the phone in question.
Harris took the police to Appellant, who insisted that he borrowed the
cell phone from Robert Green while they were riding a trolley. Appellant
agreed to have blood drawn for DNA testing. Police tracked down Mr. Green
and ascertained that he was incarcerated on the day that Appellant
purportedly borrowed A.M.’s cell phone from Mr. Green. Appellant’s DNA
matched the DNA from the semen found on the victim’s shirt.
After the jury convicted Appellant, he was sentenced on December 14,
2001, to twenty-five to fifty years imprisonment. Appellant’s first appeal
was dismissed due to counsel’s failure to file a brief, but his appellate rights
were reinstated pursuant to a timely PCRA petition.1 On August 26, 2004,
____________________________________________
1
Since this first petition resulted in reinstatement of Appellant’s right to file
a direct appeal, it is not considered a PCRA petition. Commonwealth v.
Turner, 73 A.3d 1283, 1286 (Pa.Super. 2013) (“when a PCRA petitioner's
direct appeal rights are reinstated nunc pro tunc in his first PCRA petition, a
subsequent PCRA petition will be considered a first PCRA petition for
timeliness purposes”).
-2-
J-S74015-17
we affirmed Appellant’s judgment of sentence, Commonwealth v.
Johnson, 860 A.2d 1129 (Pa.Super. 2004) (unpublished memorandum),
and our Supreme Court denied allowance of appeal on March 31, 2005,
Commonwealth v. Johnson, 871 A.2d 189 (Pa. 2005). Appellant filed a
timely pro se PCRA petition on May 2, 2005, counsel was appointed, and the
petition was denied. Appellant did not file an appeal from the denial of his
first request for post-conviction relief.
Appellant filed his second PCRA petition on January 12, 2009, and that
request for relief was dismissed as untimely filed. While no appeal was filed
from dismissal of that petition, Appellant filed a third request for post-
conviction relief on September 16, 2010. Counsel was appointed and
thereafter moved to withdraw. Said request was granted, and relief was
denied. Appellant filed his fourth request for PCRA relief on July 10, 2014.
That petition was dismissed as untimely, and, on appeal, we affirmed.
Commonwealth v. Johnson, 131 A.3d 81 (Pa.Super. 2015) (unpublished
memorandum). Therein, we confirmed that the September 16, 2010
petition was untimely, ruled that Appellant’s judgment of sentence became
final for purposes of the PCRA on June 29, 2005, and noted that he until
June 29, 2006, to file a timely petition.
The present PCRA petition was filed on May 23, 2016, and it was
dismissed as untimely filed. This appeal followed. Appellant presents these
claims on appeal:
-3-
J-S74015-17
[1.] Did or did not, the prosecutor commit a Brady violation by
suppressing exculpatory facts of material evidence that related
directly to the overall credibility of his key witness, that was
critical to a determination of petitioner[’]s guilt or innocence, a
violation of the Brady strictures as cited by the United States
Supreme Court in Brady v. Maryland?
[2.] Did or did not, the prosecutor commit a Brady violation by
suppressing exculpatory facts of material evidence that related
directly to the overall credibility of his key witness, that was
critical to a determination of petitioner[’]s guilt or innocence, a
violation of the Brady strictures as cited by the United States
Supreme Court in Brady v. Maryland?
[3.] Was or was not, petitioner deprived of his sixth amendment
right by trial counsel's failure to investigate and obtain forensic
and identification test results, of material evidence that could
have exonerated petitioner before trial, constitute defective
representation?
[4.] Was or was not, petitioner deprived of his sixth amendment
right by trial counsel's failure to request forensic DNA testing of
material evidence, that could have exonerated petitioner,
constitute defective represe[n]tation?
[5.] Was or was not, petitioner deprived of his sixth amendment
right by trial counsel's failure to investigate material evidence,
that could have exonerated petitioner, constitute defective
representation?
[6.] Did or did not, the PCRA court abuse it's [sic] discretion in
dismissing petitioner[’]s May 23, 2016, pro-se, PCRA petition, as
untimely, by failing to appoint counsel to determine whether any
of the statutory exception to the (1) year filing period applied to
petitioner[’]s May 23, 2016, pro-se, pursuant to Pa.R.Crim.P.
Rule 904?
Appellant’s brief at E-F.
Appellant’s claims are repetitive and can be summarized as follows: 1)
the Commonwealth committed a Brady violation when it failed to inform him
that semen discovered in the victim’s throat was tested but the results were
-4-
J-S74015-17
inconclusive; 2) the Commonwealth committed a Brady violation by not
revealing to him that blood was discovered on the same shirt that the victim
used to collect his semen; 3) trial counsel was ineffective for permitting the
jury to hear that semen was found in the victim’s throat when DNA testing of
that semen was inclusive; 4) trial counsel was ineffective for failing to obtain
DNA testing of the blood on the shirt that also contained Appellant’s semen;
and 5) counsel should have been appointed for purposes of litigating the
present PCRA petition in order to establish that it was timely filed.
This Court reviews the “denial of PCRA relief to determine whether the
findings of the PCRA court are supported by the record and free of legal
error.” Commonwealth v. Roane, 142 A.3d 79, 86 (Pa.Super. 2016)
(quoting Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015)). It is
now settled law that all PCRA petitions must be filed within one year of the
date a defendant’s judgment of sentence becomes final unless an exception
to the one-year time restriction applies. 42 Pa.C.S. § 9545(b)(1). If a PCRA
petition is untimely, “neither this Court nor the trial court has jurisdiction
over the petition.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super.
2014) (citation omitted); see also Commonwealth v. Spotz, ___ A.3d
(Pa. CAP 731 and 734 filed October 18, 2017); Commonwealth v.
Chester, 895 A.2d 520, 522 (Pa. 2006). The PCRA’s time constraints are
not subject to tolling or other equitable considerations. Spotz, supra.
There are three enumerated exceptions to this one-year time
requirement: (1) interference by government officials in the presentation of
-5-
J-S74015-17
the claim; (2) newly discovered facts; and (3) an after-recognized
constitutional right. 42 Pa.C.S. § 9545(b)(1)(i-iii). The PCRA petitioner has
the burden of pleading and proving the existence of any exception invoked.
Spotz, supra. Moreover, the PCRA petition must be filed within sixty days
of when the claim first could have been presented. 42 Pa.C.S. § 9545 (b)(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.”).
We previously observed that Appellant’s judgment of sentence became
final for purposes of the PCRA on June 29, 2005, and that he had until June
29, 2006, to file a timely petition. The present petition is patently untimely.
In support of an exception, Appellant first raises the specter of violations of
Brady v. Maryland, 373 U.S. 83 (1963), with respect to the blood found on
the shirt and the semen from the victim’s throat that proved inclusive when
tested. “Under Brady, the prosecution's failure to divulge exculpatory
evidence is a violation of a defendant's Fourteenth Amendment due process
rights. To establish a Brady violation, a defendant is required to
demonstrate that exculpatory or impeaching evidence, favorable to the
defense, was suppressed by the prosecution, to the prejudice of the
defendant.” Commonwealth v. Cam Ly, 980 A.2d 61, 75 (Pa. 2009)
(citation omitted).
Our Supreme Court has articulated: “Although a Brady violation may
fall within the governmental interference exception [to the one-year time
bar], the petitioner must plead and prove the failure to previously raise the
-6-
J-S74015-17
claim was the result of interference by government officials, and the
information could not have been obtained earlier with the exercise of due
diligence.” Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa.
2008). Due diligence “demands that the petitioner take reasonable steps to
protect his own interests.” Commonwealth v. Brown, 111 A.3d 171, 176
(Pa.Super. 2015). Accordingly, the PCRA petitioner must explain why he
could not have learned of the existence of information in question earlier by
simple investigation. Id.
In support of his purported Brady violations, Appellant presents
police laboratory reports dated November 13, 2000, and March 21, 2001,
and two property receipts from November 6, 2000. Appellant’s brief at
Exhibits 1-4. Appellant makes no attempt to establish why he could not
have uncovered these documents much earlier, and he did not plead
sufficient facts to establish that he could not have learned about the
supposedly exculpatory evidence years ago through simple investigation.
Hence, the PCRA court did not abuse its discretion in concluding that
Appellant did not exercise due diligence and could not invoke a Brady
violation by means of the governmental interference exception.
Appellant also levels three allegations of ineffective assistance of
counsel in his statement of questions involved in this appeal. “It is well
settled that allegations of ineffective assistance of counsel will not overcome
the jurisdictional timeliness requirements of the PCRA.” Commonwealth v.
Wharton, 886 A.2d 1120, 1127 (Pa. 2005). Wharton is merely a more
-7-
J-S74015-17
recent iteration of this well-ensconced principle. Commonwealth v. Abu–
Jamal, 833 A.2d 719 (Pa. 2003). Commonwealth v. Gamboa–Taylor,
753 A.2d 780 (Pa. 2000); Commonwealth v. Bronshtein, 752 A.2d 868
(Pa. 2000); Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000);
Commonwealth v. Pollard, 911 A.2d 1005 (Pa.Super. 2006). Accordingly,
Appellant’s third, fourth, and fifth claims do not satisfy an exception to the
one-year time bar.
Finally, Appellant argues that he should have received the
appointment of counsel for purposes of establishing that an exception
applied herein. Pa.R.Crim.P. 904 provides for the automatic appointment of
counsel for purposes of a first PCRA petition. Pa.R.Crim.P. 904(C) (“when an
unrepresented defendant satisfies the judge that the defendant is unable to
afford or otherwise procure counsel, the judge shall appoint counsel to
represent the defendant on the defendant's first petition for post-conviction
collateral relief.”). However, when a second or subsequent PCRA petition is
filed, an indigent defendant is entitled to appointed counsel only if “an
evidentiary hearing is required as provided in Rule 908[.]” Pa.R.Crim.P.
904(D). A hearing is required if the petition “raises material issues of fact.”
Pa.R.Crim.P. 908(2).
In the present case, there is no issue of material fact that Appellant
did not meet an exception to the one-year time bar. He failed to exercise
due diligence in ascertaining that there was blood on the shirt where his
semen was found and in discovering that the testing on the semen found in
-8-
J-S74015-17
the victim’s throat was inconclusive. Additionally, claims of ineffective
assistance of counsel do not meet any of the exceptions. Hence, there is no
issue of fact that this PCRA petition was untimely. The PCRA court therefore
did not have to appoint counsel.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2017
-9-