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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DWAYNE JOHNSON :
:
Appellant : No. 489 WDA 2018
Appeal from the PCRA Order December 18, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0001813-1985
BEFORE: GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.
MEMORANDUM BY COLINS, J.: FILED APRIL 24, 2019
Appellant, Dwayne Johnson, pro se, appeals from the order entered
December 18, 2017, that dismissed his second petition filed under the Post
Conviction Relief Act (“PCRA”)1 without a hearing. We affirm. Additionally,
we deny Appellant’s outstanding motions as moot.
Appellant was found guilty, in July of 1985, after a jury trial, of
second degree murder as a result of the shooting death of
Ann Bahorich, an employee at a grocery store robbed by
appellant. Post-trial motions were denied by order dated
August 22, 1985, and the trial court sentenced appellant to life
imprisonment. Appellant filed a direct appeal, and on October 14,
1986, this Court affirmed the judgment of sentence.
Commonwealth v. Johnson, 517 A.2d 1365 (Pa.Super. 1986)
(unpublished memorandum). No petition for allowance of appeal
was filed.
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1 42 Pa.C.S. §§ 9541–9546.
* Retired Senior Judge assigned to the Superior Court.
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Appellant took no further action until January 14, 1997, when he
filed a pro se petition for PCRA relief. The trial court by order
dated October 10, 1997, appointed the Allegheny County Public
Defender’s Office to represent appellant, and an amended PCRA
petition was filed on or about February 1, 1999. The PCRA court
filed its notice of intent to dismiss without a hearing on
October 14, 1999, and appellant filed a response. The PCRA
petition was dismissed on February 28, 2000, without a hearing[.]
Commonwealth v. Johnson, No. 520 WDA 2000, unpublished memorandum
at 1-2 (Pa. Super. filed March 15, 2001) (footnotes omitted). This Court
affirmed the dismissal of Appellant’s first PCRA Petition. Id. at 1.
In 2017, Appellant filed his second PCRA petition, arguing that
“exculpatory evidence” may exist “in police investigation discovery material.”
PCRA Petition, 4/11/2017, at 4 ¶ 4. Appellant acknowledged that his petition
was untimely but invoked the “governmental interference” and “newly
discovered facts/evidence” exceptions to the PCRA’s time bar. Id. at 2 ¶ 6.
The PCRA court appointed counsel to represent Appellant, who filed a
petition to withdraw and a “no merit” letter pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en banc), along with a cover letter that stated that
counsel “conducted an extensive review of this matter” and “determined that
[Appellant’s PCRA] petition was untimely filed and that no exceptions apply.”
Letter from PCRA Counsel to Appellant (Nov. 8, 2017). The cover letter further
informed Appellant: “In the event that the PCRA court grants my motion to
withdraw as counsel, you have the right to proceed with your petition on
you[r] own or with the assistance of privately retained counsel.” Id. On
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November 9, 2017, the PCRA court granted counsel’s motion to withdraw and
simultaneously entered a notice of intent to dismiss all claims without a
hearing pursuant to Pa.R.Crim.P. 907. On December 18, 2017, the PCRA court
dismissed Appellant’s petition.
On January 17, 2018, Appellant filed this timely appeal. After both
parties filed their briefs, Appellant filed an application for extension of time to
file reply brief and a motion to strike/dismiss the Commonwealth’s brief.
The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). “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” one of the three exceptions2
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2 The three exceptions to the timeliness requirement are:
(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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii).
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to the time limitations for filing the petition. 42 Pa.C.S. § 9545(b)(1)
(emphasis added).
Appellant admits that his PCRA petition was untimely but attempted to
circumvent the time bar by baldly asserting the “governmental interference”
and “newly discovered facts/evidence” exceptions under subsections
9545(b)(1)(i)-(ii). PCRA Petition, 4/11/2017, at 2 ¶ 6. Appellant’s PCRA
petition and brief do not plead nor prove that newly discovered facts or
evidence actually exist; they merely claim that such evidence might exist and
that the Commonwealth “interfered” by not turning over all of its files on
Appellant’s case to him, just in case something exculpatory could be
contained therein. See id. at 2-5; Appellant’s Brief at 10.3 Such bald
assertions, without a single factual averment in support thereof, are
insufficient to plead and to prove the applicability of a timeliness exception;
thus, the PCRA court correctly determined that Appellant failed to plead and
to prove the applicability of a timeliness exception and that it lacked
jurisdiction to reach the merits of Appellant’s PCRA petition. See 42 Pa.C.S.
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3 To the extent that Appellant has argued that, if the court were to allow him
to access the Commonwealth’s files, including police notes and reports, he
would be able to find exculpatory evidence under Brady v. Maryland, 373
U.S. 83 (1963), the Supreme Court of Pennsylvania rejected a similar request
for discovery of the Commonwealth’s files and other notes during collateral
review in Commonwealth v. Williams, 86 A.3d 771, 788-89 (Pa. 2014) (“A
defendant’s right to discover exculpatory evidence does not include the
unsupervised authority to search through the Commonwealth’s files”; “the
mere fact that a claim sounds in Brady does not, on its own, create a special
right to PCRA discovery”).
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§ 9545(b)(1); Commonwealth v. Pollard, 911 A.2d 1005, 1007 (Pa. Super.
2006) (“Although Appellant makes bald assertions of interference by
governmental officials and after-discovered evidence, he has failed to offer
any argument regarding how these time-bar exceptions apply to his case”).
Consequently, the PCRA court was without jurisdiction to review the
merits of Appellant’s claims and properly dismissed his petition. For the same
reasons, we lack jurisdiction to consider the merits of Appellant’s PCRA claims,
and his two outstanding motions are denied as moot.
Order affirmed. Motions denied as moot.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/2019
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