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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                           :
ROBERT DENNIS JOHNSON,                     :           No. 23 MDA 2019
                                           :
                          Appellant        :


            Appeal from the PCRA Order Entered December 6, 2018,
              in the Court of Common Pleas of Lancaster County
               Criminal Division at No. CP-36-CR-0002021-1992


BEFORE: LAZARUS, J., OTT, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED SEPTEMBER 10, 2019

        Robert Dennis Johnson1 appeals from the December 6, 2018 order

dismissing as untimely his serial petition filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.         After careful review, we

affirm.

        The relevant facts and procedural history of this case, as gleaned from

the certified record, are as follows:      On January 13, 1993, a jury found

appellant guilty of rape, involuntary deviate sexual intercourse (“IDSI”), and

theft by unlawful taking or disposition2 in connection with his June 1991 sexual

assault of the victim in Lancaster County. On August 20, 1993, the trial court




1   Appellant is also identified in the record as “Dennis Campbell.”

2   18 Pa.C.S.A. §§ 3121(a)(1), 3123(a)(1), and 3921(a), respectively.
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sentenced appellant to an aggregate term of 20 to 40 years’ imprisonment.

Appellant was also ordered to register as a sex offender for a period of

10 years, pursuant to the requirements of Megan’s Law III, 42 Pa.C.S.A.

§§ 9791-9799.9.3 On May 2, 1994, a panel of this court affirmed appellant’s

judgment of sentence, and our supreme court denied appellant’s petition for

allowance of appeal on October 12, 1994. See Commonwealth v. Johnson,

647 A.2d 264 (Pa.Super. 1994) (unpublished memorandum), appeal denied,

649 A.2d 669 (Pa. 1994).

      Appellant filed his first pro se PCRA petition on December 19, 1996.

Counsel was appointed to represent appellant and filed an amended petition

on his behalf on May 21, 1997. On June 23, 1998, the PCRA court dismissed

appellant’s petition, and a panel of this court affirmed the PCRA court’s order

on June 10, 1999.      See Commonwealth v. Johnson, 742 A.2d 205

(Pa.Super. 1999) (unpublished memorandum), appeal denied, 747 A.2d 898

(Pa. 1999), certiorari denied, 529 U.S. 1092 (2000). On October 16, 1999,

the Supreme Court of Pennsylvania denied appellant’s petition for allowance

of appeal, and the Supreme Court of the United States denied appellant’s




3  On December 20, 2012, the Sex Offender Registration and Notification Act
(“SORNA”), 42 Pa.C.S.A. §§ 9799.10-9799.41, was enacted to repeal
Megan’s Law II and III. SORNA was applied to appellant retroactively
pursuant to Section 9799.13, and by operation of Section 9799.14(d)(8), the
term of appellant’s sex-offender registration was increased from 10 years to
life.


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petition for writ of certiorari on April 24, 2000. Id. Appellant filed two more

unsuccessful PCRA petitions in June 2000 and May 2005.

      On August 6, 2015, appellant filed the instant pro se PCRA petition, his

fourth. Adam Szilagyi, Esq. (hereafter, “PCRA counsel”), was appointed to

represent appellant and filed an amended petition on his behalf on January 20,

2016. An evidentiary hearing was initially scheduled for August 22, 2016, but

was continued or rescheduled multiple times, sometimes at appellant’s

behest, between August 2016 and January 2018.           On January 16, 2018,

appellant filed a “Supplemental Amended Petition for Post-Conviction

Collateral Relief,” but later withdrew all the claims he raised in this petition.

Thereafter, on August 24, 2018, the PCRA court provided appellant with notice

of its intention to dismiss his petition without a hearing, pursuant to

Pa.R.Crim.P. 907(1). That same day, the PCRA court filed a comprehensive

opinion in support of its Rule 907 notice. (See PCRA court opinion, 8/24/18.)

Appellant filed a response to the PCRA court’s Rule 907 notice on October 3,

2018. Thereafter, on December 6, 2018, the PCRA court dismissed appellant’s

petition without a hearing, relying on the reasoning set forth in its August 24,

2018 opinion. This timely appeal followed.4

      Appellant raises the following issues for our review:

            I.    Did the PCRA court err, as a matter of law, when
                  it deemed [a]ppellant’s PCRA claims related to

4 The record reflects that the PCRA court did not order appellant to file a
concise statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b).


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                    the microscopic hair analysis expert testimony
                    at his jury trial to be untimely, when facts in the
                    pleadings warranted the court’s assessment of
                    whether any perceived delay in filing the pro se
                    PCRA petition was not a byproduct of
                    [a]ppellant’s own actions? Alternatively, should
                    [a]ppellant’s PCRA claims be deemed timely
                    based upon when he received actual notice of
                    the FBI press release’s application to his case?

             II.    Did the PCRA court err, as a matter of law, when
                    it found [a]ppellant’s underlying PCRA claims
                    related to the expert testimony at his jury trial
                    did not set forth sufficient facts in the pleadings
                    to warrant PCRA relief, or at a bare minimum,
                    an evidentiary hearing on the claims?

Appellant’s brief at viii.

      Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s

findings will not be disturbed unless there is no support for the findings in the

certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)

(citations omitted). “This Court grants great deference to the findings of the

PCRA court, and we will not disturb those findings merely because the record

could support a contrary holding.” Commonwealth v. Hickman, 799 A.2d

136, 140 (Pa.Super. 2002) (citation omitted).

      Preliminarily, we must consider the timeliness of appellant’s PCRA

petition because it implicates the jurisdiction of this court and the PCRA court.

Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014) (citation


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omitted). All PCRA petitions, including second and subsequent petitions, must

be filed within one year of when a defendant’s judgment of sentence becomes

final. See 42 Pa.C.S.A. § 9545(b)(1). “[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.” 42 Pa.C.S.A. § 9545(b)(3).

     The 1995 amendments to the PCRA provide that if the judgment of

sentence became final before the January 16, 1996 effective date of the

amendments, a PCRA petition will be considered timely if filed within one year

of this effective date. As this court explained in Commonwealth v. Voss,

838 A.2d 795 (Pa.Super. 2003):

           A petition where the judgment of sentence became
           final before the effective date of the 1995
           amendments to the PCRA shall be deemed timely if
           the petitioner’s first petition was filed within one year
           of the effective date of the 1995 amendments to the
           PCRA. Because the effective date of the amendments
           is January 16, 1996, the operative deadline for
           first-time PCRA petitions is January 16, 1997.

Id. at 799 (citations, internal quotation marks, and brackets omitted).

     Here, it is undisputed that appellant’s August 6, 2015 pro se PCRA

petition, as well as PCRA counsel’s subsequent January 20, 2016 amended




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petition, are facially untimely.5     Accordingly, in order to overcome the

time-bar, appellant was required to plead and prove that one of the three

statutory exceptions enumerated in Section 9545(b)(1) applies.

      The three statutory exceptions to the PCRA time-bar are as follows:

            (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)(i-iii).      A PCRA petition invoking one of these

statutory exceptions must “be filed within 60 days of the date the claims could




5 We note that appellant’s judgment of sentence became final on January 10,
1995, 90 days after the Supreme Court of Pennsylvania denied allowance of
appeal and the deadline for filing a petition for writ of certiorari in the
Supreme Court of the United States expired. See 42 Pa.C.S.A. § 9545(b)(3).
Because appellant’s judgment of sentence became final prior to the 1996
effective date of the amendments to the PCRA, he had until January 16, 1997
to file a timely first petition. See Voss, 838 A.2d at 799.


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have been presented.” Commonwealth v. Gamboa-Taylor, 753 A.2d 780,

783 (Pa.Super. 2000); see also 42 Pa.C.S.A. § 9545(b)(2).6

      Instantly, appellant invokes the “newly discovered fact” exception set

forth in Section 9545(b)(1)(ii) and argues that he is entitled to an evidentiary

hearing based on an April 20, 2015 Federal Bureau of Investigation (“FBI”)

press release entitled “FBI Testimony on Microscopic Hair Analysis Contained

Errors in at Least 90 Percent of Cases in Ongoing Review.” (Amended PCRA

petition, 1/20/16 at ¶¶ 13, 25; see also appellant’s brief at 15-31.) This

press release detailed the FBI’s determination that the microscopic hair

analysis evidence and testimony like that utilized in appellant’s trial had

“exceeded the limits of science.” (Id. at ¶15.) Appellant contends he was

not aware of this FBI press release prior to his receipt of a June 16, 2015 letter

from Lancaster County Chief Public Defender James J. Karl; and thus, his

August 6, 2015 pro se PCRA petition was timely filed within the 60-day

timeframe. (Id. at ¶¶ 14, 16; see also appellant’s brief at 15.) In support

of this contention, appellant avers that,

            the unknown fact triggering the sixty-day deadline for
            filing his pro se PCRA petition was the [June 16,
            2015] letter sent by Chief Public Defender Karl

6 On October 24, 2018, the General Assembly amended Section 9545(b)(2),
extending the time for filing a petition from 60 days to one year from the date
the claim could have been presented. See 2018 Pa. Legis. Serv. Act 2018-
146 (S.B. 915), effective December 24, 2018. The amendment applies only
to claims arising one year before the effective date of this section,
December 24, 2017, or thereafter. Here, as discussed, appellant’s claim arose
on April 20, 2015, the date the FBI press release first became public, and
therefore, the amendment is inapplicable.


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           informing [a]ppellant that the microscopic hair
           analysis evidence in his case exceeded the limits of
           science.

Appellant’s brief at 16. We disagree.

      Here, the PCRA court found that appellant failed to demonstrate that he

brought his “newly discovered fact” exception within 60 days of the date the

claim could have been presented, as required by Section 9545(b)(2) and

Gamboa-Taylor. In reaching this conclusion, the PCRA court reasoned as

follows:

           The facts of the instant case are like those considered
           by    the     Pennsylvania     Supreme       Court    in
           Commonwealth v. Chmiel, 173 A.3d 617 (Pa.
           2017). In Chmiel, a facially untimely PCRA petition
           asserted that the defendant’s conviction and death
           sentence rested upon unreliable microscopic hair
           comparison evidence. The defendant relied on the
           April 20, 2015, FBI press release entitled “FBI
           Testimony on Microscopic Hair Analysis Contained
           Errors in at Least 90 Percent of Cases in Ongoing
           Review,” and argued that it constituted a newly
           discovered fact that satisfied the 42 Pa.C.S.A.
           § 9545(b)(1)(ii) timeliness exception.       The PCRA
           court dismissed the defendant’s PCRA petition as
           untimely, concluding that the Pennsylvania Supreme
           Court’s decision in Commonwealth v. Edmiston,
           [65 A.3d 339 (Pa. 2013), [certiorari denied, 571
           U.S. 1026 (2013),] controlled the timeliness inquiry.

           On review, the Chmiel court observed that, “to
           constitute facts which were unknown to a petitioner
           and could not have been ascertained by the exercise
           of due diligence, the information must not be of public
           record and must not be facts that were previously
           known but are now presented through a newly
           discovered source.”       Chmiel, 173 A.3d at 625
           (quoting Edmiston, 65 A.3d at 352). Ultimately, the
           court concluded that “the new discovered facts were


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          the FBI’s admissions, as the proponent of microscopic
          hair analysis, that its examiners gave flawed and
          scientifically unsupported testimony, and spread its
          flawed methodology to state and local analysts.” Id.
          at 626. The court continued to state[], “[i]t is this
          concession, not the suspected unreliability of the
          forensic evidence as developed through scientific
          advancements, that triggers the sixty-day window
          within which [the defendant] was required to file his
          claim. This concession did not exist in the public
          domain prior to April 20, 2015.” Id.

          Here, [appellant] relied upon the same FBI press
          release as the Chmiel defendant, and thus, the court
          concludes that the newly discovered fact relied upon
          by [appellant] is the FBI’s concession in its April 20,
          2015, press release. However, the instant case and
          Chmiel do not fully align, as [appellant’s] PCRA
          Petition was filed within sixty-days of the date on
          which the FBI press release became known to him,
          but not within sixty-days of the date on which the
          facts became public information. The PCRA petition
          at issue in Chmiel was filed within sixty-days of the
          FBI’s concession, and thus, the public record issue
          warranted little discussion. While stating that the
          sixty-day window in which the defendant was required
          to file his claim was triggered by the FBI’s April 20,
          2015, concession, the decision also noted the court’s
          recent holding in [Commonwealth v.] Burton, [158
          A.3d 618 (Pa. 2017),] a case where the court further
          considered . . . the public record presumption. Thus,
          the interplay between Chmiel and Burton, and
          [appellant’s] circumstances, is important in the
          instant matter.

          Historically, courts in the Commonwealth of
          Pennsylvania have held that, for purposes of [Section]
          9545(b)(1)(ii), public information is not considered
          “unknown”      to  a    PCRA     petitioner.      See
          Commonwealth v. Chester, 895 A.2d 520 (Pa.
          2006).      However, in Burton, the Pennsylvania
          Supreme Court held that “the presumption that
          information which is of public record cannot be
          deemed ‘unknown’ for purposes of subsection


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            9545(b)(1)(ii) does not apply to pro se prisoner
            petitioners,” as such an application of the public
            record presumption “is contrary to the plain language
            of subsection 9545(b)(1)(ii) and was imposed without
            any apparent consideration of a pro se prisoner’s
            actual access to information of public record.”
            Burton, 158 A.3d at 638.

            The court concludes that the date that the instant
            claim could have been first brought by [appellant] was
            April 20, 2015, when the FBI press release first
            became public, and not when [appellant] received the
            letter from the Public Defender’s office dated June 16,
            2015. The Burton holding clearly extends only to
            pro se petitioners who are incarcerated.          While
            [appellant] is still serving the parole portion of his
            sentence, he was not incarcerated at that time the FBI
            press release relied upon was released. . . .

            Because [appellant] was required to file the instant
            claim by June 19, 2015, [appellant’s] August 6, 2015,
            pro se PCRA Petition is unable to satisfy the
            [Section] 9545(b)(2) requirement that any petition
            invoking      an     exception        provided       in
            [Section] 9545(b)(1) be filed within sixty days of the
            date that the claim could have been presented.
            Therefore, [appellant] has failed to establish the
            “newly-discovered” facts exception to the PCRA’s
            timing requirement.

PCRA court opinion, 8/24/18 at 6-8.

      Following our careful review, we find that the PCRA court’s rationale is

supported by the evidence of record and legally sound, and therefore, adopt

the court’s well-reasoned conclusions as our own.

      Appellant would have this court deem his August 6, 2015 pro se PCRA

petition “as timely filed, in the interests of justice,” based on his belief that

“any delay in filing the pro se petition would be attributable to Chief Public



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Defender Karl.” (Appellant’s brief at 16.) Specifically, appellant avers that

his “untimely filing was the byproduct of Chief Public Defender Karl’s thwarting

of [a]ppellant’s ability to exercise due diligence and/or Karl’s functional

abandonment of [a]ppellant.” (Id.) Citing, inter alia, Commonwealth v.

Bennett, 930 A.2d 1264 (Pa. 2007),7 appellant contends that

            [he] only received notice of the application of
            inappropriate FBI microscopic hair analysis evidence
            applying to his case, by letter dated June 16, 2015.
            Any potential untimely filing of the pro se petition was
            a byproduct of [a]ppellant receiving inadequate and
            delayed notice from the Chief Public Defender of
            Lancaster County or the Chief Defender failing to file
            the petition in a timely manner. The Chief’s actions
            thwarted [a]ppellant’s ability to exercise due diligence
            and amounted to the functional equivalent of
            counsel’s abandonment.

Appellant’s brief at 11. The record belies this claim.

      The record reflects that in his letter to appellant, Chief Public Defender

Karl twice informed appellant, who was not incarcerated at the time, that he

had 60 days from the date the FBI press release first became public, or June

19, 2015, to raise an exception to the PCRA time-bar. (See letter, 6/16/15

at ¶¶ 6, 12, attached to Amended PCRA petition, 1/20/16 at Exhibit C.)




7 In Bennett, our supreme court recognized that in limited situations where
counsel’s ineffective assistance was tantamount to abandoning his client on
appeal, the petitioner’s discovery of counsel’s alleged ineffectiveness might
form the basis of a Section 9545(b)(1)(ii) exception to the PCRA time-bar.
Specifically, the Bennett court held that counsel constructively abandons a
defendant when he fails to file a requested appeal, and that such
abandonment is per se prejudicial for purposes of evaluating the
constitutional effectiveness of counsel. See Bennett, 930 A.2d at 1273.


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Chief Public Defender Karl further informed appellant that he would not be

representing him with respect to the PCRA because appellant had alleged the

ineffectiveness of the Lancaster County Public Defender’s Office in his prior

PCRA proceedings, but did take the liberty to enclose a pro se PCRA petition

that he prepared on appellant’s behalf.       (Id. at ¶¶ 7-11.)    Based on the

forgoing, we find that appellant’s contention that his untimely filed pro se

PCRA petition may be excused by Chief Public Defender Karl’s actions is

meritless.

      Lastly, to the extent appellant contends “than an evidentiary hearing is

necessary in this matter in order to develop the record concerning the

circumstances surrounding the issues raised in t[he] Amended PCRA

Petition[,]” we find that appellant is not entitled to relief. (Amended PCRA

petition, 1/20/16 at ¶ 35; see also appellant’s brief at 32-36.)

      This court has long recognized that there is no absolute right to an

evidentiary hearing.    See Commonwealth v. Hart, 911 A.2d 939, 941

(Pa.Super. 2006) (citation omitted). “It is within the PCRA court’s discretion

to decline to hold a hearing if the petitioner’s claim is patently frivolous and

has no support either in the record or other evidence.”       Commonwealth

v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012) (citations omitted). When the

PCRA court denies a petition without an evidentiary hearing, we “examine

each issue raised in the PCRA petition in light of the record certified before it

in order to determine if the PCRA court erred in its determination that there



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were no genuine issues of material fact in controversy and in denying relief

without conducting an evidentiary hearing.” Commonwealth v. Khalifah,

852 A.2d 1238, 1240 (Pa.Super. 2004). Prior to doing so, however, the PCRA

court must clearly possess jurisdiction to consider the merits of the claim

raised.   See Gamboa-Taylor, 753 A.2d at 783 (stating, “when a PCRA

petition is . . . entitled to one of the exceptions, but not filed within 60 days

of the date that the claim could have been first brought, the [PCRA] court has

no power to address the substantive merits of a petitioner’s PCRA claims.”).

      As discussed, appellant failed to file his PCRA petition invoking the

“newly discovered fact” exception within 60 days of the date the claims

could have been presented.          See id; 42 Pa.C.S.A. § 9545(b)(1)(ii).

Accordingly, we discern no error on the part of the PCRA court in dismissing

appellant’s petition without conducting an evidentiary hearing.

      For all the foregoing reasons, we affirm the December 6, 2018 order of

the PCRA court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/10/2019




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