J-S50021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DALE JOHNSON                               :
                                               :
                       Appellant               :   No. 155 WDA 2019

                  Appeal from the Order Dated January 7, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0016792-2008


BEFORE:      LAZARUS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.:                          FILED SEPTEMBER 20, 2019

        Dale Johnson (Appellant) appeals pro se from the order dismissing his

untimely petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

        This Court previously summarized:

        A jury convicted Appellant on July 28, 2009, of aggravated
        assault, burglary, robbery and related offenses. On October 22,
        2009, Appellant received an aggregate sentence of 12 to 24 years’
        incarceration to be followed by 5 years’ probation. This Court
        affirmed the judgment of sentence on August 31, 2010, and the
        Pennsylvania Supreme Court denied further direct review on
        February 2, 2011.

Commonwealth v. Johnson, 83 A.3d 1079 (Pa. Super. Aug. 28, 2013)

(unpublished memorandum at *3). Appellant did not seek a writ of certiorari

with the United States Supreme Court, and this Court has determined that

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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Appellant’s judgment of sentence became final on May 3, 2011. See id. at

*7.

      Appellant has filed a succession of PCRA petitions. On December 10,

2018, Appellant filed the underlying pro se PCRA petition, his fifth.      After

providing notice of intent to dismiss the petition pursuant to Pennsylvania Rule

of Criminal Procedure 907 on December 11, 2018, the PCRA court dismissed

the petition on January 7, 2019. Appellant filed this appeal on January 24,

2019. Both Appellant and the PCRA court have complied with Pennsylvania

Rule of Appellate Procedure 1925.

      Appellant presents a single issue for our review:

      1. Did the PCRA court err when it dismissed Appellant’s Petition
         raising    after-discovered   facts    under    42   Pa.C.S.A.
         §9545(b)(1)(ii) as untimely filed and previously litigated,
         although these new facts could not have been discovered
         earlier due to extreme circumstances of the logistics
         [Appellant] faces as a prisoner and previous counsel’s
         ineffectiveness and [Appellant’s] lack of resources.

Appellant’s Brief at 3.

      We begin with the untimeliness of Appellant’s petition. “Pennsylvania

law makes clear no court has jurisdiction to hear an untimely PCRA petition.”

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa. Super. 2010)

(quoting Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003)).

A petitioner must file a PCRA petition within one year of the date on which the

petitioner’s judgment of sentence became final, unless one of the three

statutory exceptions applies:



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       (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.A. § 9545(b)(1). A petitioner must file a petition invoking one of

these exceptions within one year of the date the claim could have been

presented. 42 Pa.C.S.A. § 9545(b)(2). 1 If a petition is untimely, and the

petitioner has not pled and proven an exception, “‘neither this Court nor the

trial court has jurisdiction over the petition. Without jurisdiction, we simply

do not have the legal authority to address the substantive claims.’”

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).

       As noted above, the trial court sentenced Appellant on October 22,

2009, this Court affirmed the judgment of sentence, and the Supreme Court

denied Appellant’s petition for allowance of appeal. See Commonwealth v.

Johnson, 11        A.3d 1046       (Pa.   Super.   Aug. 31, 2010) (unpublished


____________________________________________


1 Act 146 of 2018 amended 42 Pa.C.S.A. §9545(b)(2), effective December
2017, and now provides that a PCRA petition invoking a timeliness exception
be filed within one year of the date the claim could have been presented; the
prior law required that the petition be filed within 60 days.

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memorandum); Commonwealth v. Johnson, 14 A.3d 825 (Pa. 2011).

Appellant did not seek a writ of certiorari with the United States Supreme

Court.   See 42 Pa.C.S.A. § 9545(b)(3) (“a judgment 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.”); U.S. Sup. Ct. R. 13(1) (stating “a

petition for a writ of certiorari to review a judgment in any case ... is timely

when it is filed with the Clerk of this Court within 90 days after entry of the

judgment[ ]”).

      Thus, Appellant’s underlying PCRA petition, which he filed on December

10, 2018, is untimely, and we lack jurisdiction unless he has pled and proved

one of the three timeliness exceptions of section 9545(b)(1).              See

Derrickson, 923 A.2d at 468.

      Upon review, we agree with the Commonwealth that Appellant “does

not set forth a cogent claim of how he has overcome the procedural time-bar.

Instead, [A]ppellant presents a rambling discussion regarding ‘due diligence’

and how the concept was misapplied to him as a pro se litigant.”

Commonwealth Brief at 10.      We further agree that Appellant “appears to

continually attack the prior decisions of this [C]ourt and does not articulate

how the most recent petition was timely or how the lower court erred in

deciding otherwise.” Id. at 11.




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     To the extent Appellant asserts that he qualifies for an exception to the

time bar under § 9545(b)(1)(ii), and “unknown facts” relative to affidavits

from “Commonwealth/Reporting witness, Dayon Chambers,” see generally,

Appellant’s Brief at 7-13, we are not persuaded. We have explained:

     The newly-discovered fact exception has two components, which
     must be alleged and proved.        Namely, the petitioner must
     establish that: 1) the facts upon which the claim was predicated
     were unknown and 2) could not have been ascertained by the
     exercise of due diligence. If the petitioner alleges and proves
     these two components, then the PCRA court has jurisdiction over
     the claim under this subsection.

Commonwealth v. Brown, 141 A.3d 491, 500 (Pa. Super. 2016), citing

Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007).

     The PCRA court, being familiar with Appellant and his claims, explained:

            Appellant’s PCRA Petition was untimely filed and no
     exception to the timeliness requirement applies. Appellant again
     alleges an exception under subsection (ii). Appellant, in numerous
     PCRA petitions, has claimed that a witness, Dayon Chambers,
     provided him with allegedly exculpatory information. This issue
     was previously raised and addressed in Appellant’s first PCRA
     petition, as Appellant alleged that trial counsel was ineffective for
     failing to call Chambers. At that time, Appellant produced an
     affidavit from Chambers indicating that Appellant did not break in
     to the victim’s home but actually came to the rescue of the victim.
     Several PCRA petitions have followed, as have several versions of
     essentially the same affidavit from Chambers. The Superior Court
     of Pennsylvania has affirmed this Court dismissal of these PCRA
     Petitions without a hearing.

           The proposed evidence, as previously stated, fails to satisfy
     the requirement of the after-discovered evidence rule. 42 Pa.C.S.
     § 9545 (b) (1) (ii) requires the petitioner establish (1) the facts
     upon which the claim was predicated were unknown and (2) could
     not have been ascertained by the exercise of due diligence.
     Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007). . . .
     The focus of this exception “is on the newly discovered facts, not

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      on a newly discovered or newly willing source for previously known
      facts.” Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa.
      2008).

             Chambers’ affidavits establish his availability as a witness
      as far back as 2011. Had Appellant exercised due diligence (e.g.
      asking Chambers what he was doing prior to observing the
      incident, who else would have observed it, etc.) the existence of
      other potential witnesses would have been easily discoverable.
      The witnesses were available for Appellant’s prior PCRA petitions
      but for his own lack of due diligence in finding them. Appellant
      procured two other affidavits from Chambers and offers no
      explanation as to why he could not have procured a third affidavit
      to explain Chambers’ failure to mention the 10-12 people
      Appellant claims were at Chambers house at the time of the
      incident. As Appellant failed to exercise due diligence in obtaining
      his alleged after-discovered evidence, this Court did not err in
      dismissing his fifth PCRA petition without a heating.

PCRA Court Opinion, 5/20/19, at 3-4.

      Upon review, we discern no basis to disturb the PCRA’s determination

that Appellant failed to plead and prove an exception to the PCRA’s time-bar.

We are therefore without jurisdiction, and for this reason, affirm the dismissal

of Appellant’s petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/20/2019




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