J-S90036-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARCUS JOHNSON
Appellant No. 3759 EDA 2015
Appeal from the PCRA Order November 17, 2015
in the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0000576-1999
CP-23-CR-0006098-1998
CP-23-CR-0007000-1998
CP-23-CR-0007001-1998
BEFORE: OTT, J., SOLANO, J. AND JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED DECEMBER 12, 2016
Appellant Marcus Johnson appeals from the order of the Delaware
County Court of Common Pleas dismissing as untimely his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et
seq. After careful review, we affirm.
This matter stems from armed robberies committed in Upper Darby
and Yeadon in Delaware County in September and October of 1998. The
PCRA court outlined the pertinent procedural history as follows:
[Appellant], Marcus Johnson, was convicted of four counts
of [r]obbery, two counts of [f]irearms [n]ot to be [c]arried
[w]ithout a [l]icense, and [c]riminal [c]onspiracy to [c]ommit
[r]obbery. The jury found [Appellant] guilty of robbing one
Wawa in Upper Darby Township as well as another Wawa in the
Borough of Yeadon three separate times. All four robberies
occurred with the assistance of a firearm. On May 2, 2000,
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following the trial, he was sentenced to an aggregate prison
sentence [that] totaled 30 to 70 years.
During the trial, the Commonwealth presented ample
evidence that left no doubt [Appellant] committed the robberies.
Video surveillance at both stores produced evidence of the
perpetrator for each of the robberies. Also, victims of each of
the robberies positively identified [Appellant] as the perpetrator
of the robberies both in a photo array and at his preliminary
hearing. [Appellant] questions most of this evidence and
testimony in various appeals and [PCRA] motions.
After [Appellant’s] sentence in May of 2000, he filed a
timely appeal [and complied] with [Pa.R.A.P.] 1925(b). Here,
[Appellant] argued a new trial should be granted because the
court admitted a statement [Appellant] made to a police
detective stating he would alter his physical appearance before
trial. The Superior Court affirmed [Appellant’s] [j]udgment of
[s]entence of thirty to seventy years in a [m]emorandum
[o]pinion on August 29, 2001[,] reasoning that there was no
error in admitting the statement and, even if there was, it was
harmless.
On September 20, 2001, [Appellant] filed his first timely
post-conviction collateral relief petition. After obtaining
additional time to obtain and review testimony, defense counsel
filed a “no merit” letter in accordance with the requirements of
Pennsylvania v. Finley, 481 U.S. 551 (1987) and
Commonwealth v. Turner, [] 544 A.2d 927 ([Pa.]1988).
Subsequently, [Appellant] filed an objection to the Finley letter.
On April 19, 2002, the PCRA court issued a “Notice of Intent to
Dismiss Post Conviction Relief Act Petition Without Hearing,” and
gave notice to [Appellant] that he had twenty (20) days to
respond, or his PCRA petition would be dismissed. Since
[Appellant] failed to respond to [] PCRA counsel’s notice, on May
24, 2002[,] the PCRA petition was dismissed.
[Appellant] filed a timely appeal [of] the dismissal of his
PCRA petition, to which on September 26, 2002[,] the PCRA
[court] issued an opinion addressing the five issues from
[Appellant’s] original pro se petition. On October 7, 2002, the
Superior Court denied [Appellant’s] application for appointment
of appellate counsel and subsequently affirmed the denial of
[Appellant’s] PCRA petition in a [m]emorandum [o]pinion on
June 30, 2003.
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As a result of [Appellant’s] federal habeas litigation in
2006, United States Magistrate Judge Timothy R. Rice issued a
16-page Report and Recommendation and [the] Honorable
Stewart J. Dalzell issued a 22-page [o]rder that approved the
Report and Recommendation. Judge Dalzell acknowledged the
wealth of evidence the trial court used to convict [Appellant],
including videotapes of the robberies as well as positive
identification by the victims before and during trial.
In October 2009, Kevin Powell, another state inmate,
approached [Appellant] and supposedly admitted to participating
in an armed robbery that [Appellant] had been convicted of. Mr.
Powell authored an affidavit that was mailed to [Appellant’s]
attorney. Subsequently, [Appellant] filed a PCRA petition based
on this new evidence. On April 15, 2011, Judge Ann Osborne
held a PCRA evidentiary hearing where she heard testimony from
both Mr. Powell and [Appellant]. On December 19, 2011[,] the
petition was dismissed after the court determined the newly
discovered evidence would not affect the trial verdict. In fact,
Judge Osborne noted, “The testimony of both [Appellant] and
Powell completely lacked credibility.” This decision was
appealed.
On November 9, 2012, the decision of Judge Osborne was
affirmed by the Superior Court in a [m]emorandum [o]pinion.
The Superior Court held that the PCRA petition did not warrant
relief, despite the acknowledged discrepancies in the initial
physical descriptions of the perpetrator in one of the robberies
and [Appellant’s] physical description. In a petition for [f]ederal
[h]abeas [corpus] relief, [Appellant] also claimed the
Commonwealth perpetrated a fraud on the court based on a
comment the prosecutor made during closing arguments
regarding the amount of evidence used during trial to convict
[Appellant], including the grainy videotape. On June 17, 2013,
Federal Judge Dalzell entered an [o]rder, which rejected
[Appellant’s] assertions of fraud and denied the request for
habeas relief.
PCRA Court Pa.R.A.P. 1925(a) Opinion, filed June 30, 2016, pp. 1-4 (internal
record citations omitted).
Appellant filed the instant PCRA petition, his third, on September 19,
2013. Appellant filed an amended petition on December 12, 2014, and a
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motion for discovery on February 2, 2015. On October 13, 2015, the PCRA
court ordered the Commonwealth to file an answer to the amended PCRA
petition and motion for discovery within 30 days, which the Commonwealth
accordingly did on November 16, 2015. On November 17, 2015, the PCRA
court dismissed the PCRA petition.1 Appellant filed his notice of appeal on
December 16, 2015. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.
Appellant raises the following issue for our review:
Did the PCRA [c]ourt err and violate Appellant’s Sixth and
Fourteenth Amendment rights by finding that his PCRA petition
was untimely and not subject to one or more of the statutory
exceptions to the one[-]year jurisdictional time bar [where] this
incorrect ruling precluded the PCRA [c]ourt from granting
discovery, conducting an evidentiary hearing and/or addressing
the merits of the petition[?]
Appellant’s Brief, p. 3.
Our well-settled standard of review for orders denying PCRA relief is
“to determine whether the determination of the PCRA court is supported by
the evidence of record and is free of legal error. The PCRA court’s findings
will not be disturbed unless there is no support for the findings in the
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1
The PCRA court dockets do not reflect that the PCRA court filed a
Pa.R.Crim.P. 907 notice of intent to dismiss the PCRA petition without a
hearing. Although a failure to file a Rule 907 notice may afford an appellant
relief at times, because Appellant’s petition is untimely as discussed infra,
we will overlook the PCRA court’s procedural error.
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certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-192
(Pa.Super.2013) (internal quotations and citations omitted).
We must first consider the timeliness of the petition, as a petition’s
timeliness implicates the jurisdiction of both this Court and the PCRA court.
Commonwealth v. Williams, 35 A.3d 44, 52 (Pa.Super.2011), appeal
denied, 50 A.3d 121 (Pa.2012) (“Pennsylvania law makes clear that no court
has jurisdiction to hear an untimely PCRA petition”). “It is undisputed that a
PCRA petition must be filed within one year of the date that the judgment of
sentence becomes final.” Commonwealth v. Hernandez, 79 A.3d 649,
651 (Pa.Super.2013); 42 Pa.C.S. § 9545(b)(1). “This time requirement is
mandatory and jurisdictional in nature, and the court may not ignore it in
order to reach the merits of a petition.” Hernandez, 79 A.3d at 651 (citing
Commonwealth v. Murray, 753 A.2d 201, 203 (Pa.2000)). A judgment of
sentence “becomes final at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time for seeking the
review.” 42 Pa.C.S. § 9545(b)(3). However, a facially untimely petition
may be received where any of the PCRA’s three limited exceptions to the
time for filing the petition are met. Hernandez, 79 A.3d at 651 (footnote
omitted). These exceptions include:
(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;
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(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). As our Supreme Court has repeatedly
stated, the petitioner maintains the burden of pleading and proving that one
of these exceptions applies. Commonwealth v. Abu-Jamal, 941 A.2d
1263, 1268 (Pa.2008), cert. denied, 555 U.S. 916 (2008). Further,
[a] petition invoking one of these exceptions must be filed within
sixty days of the date the claim could first have been presented.
42 Pa.C.S. § 9545(b)(2). In order to be entitled to the
exceptions to the PCRA’s one-year filing deadline, the petitioner
must plead and prove specific facts that demonstrate his claim
was raised within the sixty-day time frame under section
9545(b)(2).
Hernandez, 79 A.3d at 651-652 (internal quotations omitted). Further, in
the absence of one of the enumerated exceptions, a PCRA court lacks
authority to extend the PCRA’s filing period. Commonwealth v. Fahy, 737
A.2d 214, 222 (Pa.1999); see also Commonwealth v. Watts, 23 A.3d
980, 983 (Pa.2011) (“[To] accord finality to the collateral review process[,]”
the PCRA “confers no authority upon [appellate courts] to fashion ad hoc
equitable exceptions to the PCRA timebar”).
Finally, a heightened standard applies to a second or subsequent PCRA
petition to avoid “serial requests for post-conviction relief.”
Commonwealth v. Jette, 23 A.3d 1032, 1043 (Pa.2011). “A second or
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subsequent request for relief under the PCRA will not be entertained unless
the petitioner presents a strong prima facie showing that a miscarriage of
justice may have occurred.” Commonwealth v. Hawkins, 953 A.2d 1248,
1251 (Pa.2006). Additionally, in a second or subsequent post-conviction
proceeding, “all issues are waived except those which implicate a
defendant’s innocence or which raise the possibility that the proceedings
resulting in conviction were so unfair that a miscarriage of justice which no
civilized society can tolerate occurred”. Commonwealth v. Williams, 660
A.2d 614, 618 (Pa.Super.1995).
Here, the trial court sentenced Appellant on May 2, 2000. This Court
affirmed Appellant’s judgment of sentence on August 29, 2001. Appellant
did not file a petition for allocatur to our Supreme Court. Therefore, his
judgment of sentence became final on September 28, 2001. See 42 Pa.C.S.
§ 9545(b)(3). Accordingly, Appellant had until September 30, 20022 to
timely file a PCRA petition.
Appellant filed the instant PCRA petition, his third, on September 19,
2013, nearly twelve years after his judgment of sentence became final.
Accordingly, Appellant’s petition is facially untimely. Thus, he must plead
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2
The one-year anniversary of the finalization of Appellant’s judgment of
sentence fell on Saturday, September 28, 2002. Accordingly, Appellant had
until Monday, September 30, 2002 to timely file a PCRA petition. See 1
Pa.C.S. 1908.
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and prove that his petition falls under one of the Section 9545 exceptions set
forth in the PCRA. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii).
To overcome the PCRA’s time bar, Appellant argues that new evidence
exists that entitles him to a time-bar exception pursuant to 42 Pa.C.S. §
9545(b)(1)(ii). Appellant alleges that the discovery that witness Jackie
Hayes had spoken with police after the crimes and also with a composite
sketch artist, and that police had told a second witness, Lakeisha Robinson,
that they “had their man” before her identification of Appellant, amounted to
the discovery of new evidence and a Brady violation3 by police that warrants
PCRA relief. See Appellant’s Brief, pp. 10-25. We do not agree.
This Court has explained the newly discovered evidence exception as
follows:
The timeliness exception set forth in Section 9545(b)(1)(ii)
requires a petitioner to demonstrate he did not know the facts
upon which he based his petition and could not have learned
those facts earlier by the exercise of due diligence. Due
diligence demands that the petitioner take reasonable steps to
protect his own interests. A petitioner must explain why he
could not have learned the new fact(s) earlier with the exercise
of due diligence. This rule is strictly enforced. Additionally, the
focus of this exception “is on the newly discovered facts, not on
a newly discovered or newly willing source for previously known
facts.”
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3
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)
(holding that a due process violation occurs when the state suppresses or
fails to disclose material exculpatory evidence).
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Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super.2015) (internal
citations omitted). Further,
[a]fter-discovered evidence is the basis for a new trial when it:
1) has been discovered after the trial and could not have been
obtained at or prior to the conclusion of trial by the exercise of
reasonable diligence; 2) is not merely corroborative or
cumulative; 3) will not be used solely for impeaching the
credibility of a witness; and 4) is of such nature and character
that a new verdict will likely result if a new trial is granted.
Further, the proposed new evidence must be producible and
admissible.
Commonwealth v. Chamberlain, 30 A.3d 381, 414 (Pa.2011) (internal
quotations and citations omitted).
Appellant maintains he is entitled to the section 9545(b)(1)(ii) PCRA
timeliness exception because he filed his PCRA petition within 60 days of
receiving an investigative report alleging that Hayes gave a statement to
police and spoke with a sketch artist.4 However, both Hayes and Robinson
testified at Appellant’s pre-trial hearing and trial, and both were subject to
cross-examination by Appellant. Appellant’s petition does not explain, as it
must, why he waited 15 years to contact these witnesses and question them
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4
Appellant further alleges he filed an amended PCRA petition with 60 days
of receiving the investigator’s report containing Ms. Robinson’s allegation
that police told her they had their man prior to her identification of
Appellant.
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further.5 Failing to speak with known, available witnesses for 15 years does
not amount to reasonable diligence on Appellant’s part.6
Further, both witnesses’ allegations would be merely cumulative of
Appellant’s cross-examination at trial and/or could be used merely to
impeach the witnesses.
For these reasons, Appellant’s claims remain time-barred and the trial
court did not err in dismissing Appellant’s PCRA petition as untimely.
Accordingly, we affirm the PCRA court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2016
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5
We note that Appellant prosecuted two other PCRA petitions during the
intervening period without contacting these witnesses or raising these
claims.
6
Likewise, while Brady violations may fall within the governmental
interference exception of section 9545(b)(1)(i), Appellant’s claimed Brady
violations did not occasion his interview of the witnesses and, even if true,
do not explain his lack of diligence in contacting these witnesses.
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