J-S71038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    DENNIS B. JOHNSON,

                             Appellant                 No. 1069 EDA 2017


                  Appeal from the PCRA Order January 18, 2017
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0007319-2009


BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED JANUARY 02, 2018

        Appellant, Dennis B. Johnson, appeals pro se from the order dismissing

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

Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

        A prior panel of this Court set forth the background of this case as

follows:

        On August 27, 2007, Appellant, Curtis Smith (Curtis), and Amin
        Vicks were at a convenience store located at 30th Street and
        Lehigh Avenue in Philadelphia, where Ozzie Clark (Clark) was
        working as the sole clerk. At the time Curtis arrived, the doors to
        the store were locked, and business was being conducted through
        a window on the side of the store.

             Curtis identified Appellant in court, and testified that he
        knew Appellant all of his life. While Curtis was at the window
        completing his purchase of cigars, he heard a commotion. Curtis
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*   Retired Senior Judge assigned to the Superior Court.
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     turned to see Appellant “with a gun out[,]” and pointed at the
     chest of the victim, Kenyatta Smith (Kenyatta or “the victim”).
     (N.T. Trial, 9/28/10, at 126, 136). Curtis also heard Appellant say
     to the victim, “Put everything on the steps or something like that.”
     (Id. at 128). He then observed Kenyatta place his personal
     effects, including a phone, on the steps. He also heard Appellant
     instruct the victim not to touch the items. When he observed what
     was going on, Curtis asked Appellant, “Yo, what [are] you doing,
     Dog?” (Id. at 126). Soon thereafter, Curtis heard gunshots. He
     immediately ran away, explaining that “When somebody is
     shooting a gun, I’m moving out of the way so I don’t get hit.” (Id.
     at 160).

            Clark also testified for the Commonwealth. He had worked
     at his parents’ business, the convenience store located at 30th
     Street and Lehigh Avenue, since he was a child. Clark identified
     Appellant in court, indicating that he had known him for 5 or 6 six
     years at the time of the shooting. Appellant would frequent the
     convenience store about once or twice a week as a customer.
     Clark knew Kenyatta as a frequent customer at the store as well,
     and further recalled that Kenyatta was a nighttime security guard
     at a local pool. Clark also indicated that he knew Amin Vicks and
     Curtis, as they were also regular customers.

           Clark was working alone the evening of the shooting. He
     saw Curtis, Amin Vicks, and Appellant approach the store.
     Kenyatta arrived at nearly the same time on a bicycle. Kenyatta
     purchased a few items first. While he was taking an order for
     Amin Vicks or Curtis, Clark noticed Appellant holding Kenyatta at
     gunpoint with a chrome revolver, and rifling through the victim’s
     pockets. Clark heard Appellant say something like, “you want to
     get popped, Oldhead?” (N.T. Trial, 9/29/10, at 54). Clark
     believed that Appellant said this when Kenyatta resisted giving up
     his phone. Immediately thereafter, Clark heard a gunshot ring
     out, and saw everyone run away, including Kenyatta, who only
     ran for a short time before collapsing. Clark indicated that he was
     only about eleven feet from where the shooting took place, and
     that he heard only one shot. Immediately after the shooting,
     Clark called the police and then tried to attend to Kenyatta, who
     was “[b]arely breathing.” (Id. at 66).

           Police Officer Lewis Grandizio, a firearms expert, testified
     that he analyzed the bullet taken from Kenyatta’s body. It was
     consistent with being fired from a .32 caliber revolver. Dr. Gary

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      Collins, an assistant medical examiner for the Philadelphia Medical
      Examiner’s Office, reviewed the report of the autopsy that had
      been performed by Dr. Gregory McDonald. Dr. Collins concluded
      that Kenyatta died of a single gunshot wound to the right side of
      his chest under the armpit, and that the manner of death was
      homicide. The single bullet had penetrated the victim’s liver,
      heart, and left lung.

             On September 30, 20[10], Appellant was convicted by a jury
      of [second degree murder, robbery, and a violation of the Uniform
      Firearms Act]. On November 2, 2010, the trial court sentenced
      Appellant to life imprisonment for second degree murder, and
      concurrent terms of 5–10 years’ and 3 1/2–7 years’ imprisonment
      for robbery and the firearms violation, respectively. Appellant
      filed a direct appeal, but that appeal was ultimately discontinued
      on September 9, 20[11], before a brief was filed with this Court.

            Appellant filed a counseled PCRA petition, his first, on July
      20, 2012. The Commonwealth filed a motion to dismiss on
      February [7], 2013.        Appellant filed a response to the
      Commonwealth’s motion to dismiss on March 5, 2013.
      Subsequently, on July 9, 2013, the PCRA court issued notice of its
      intent to dismiss Appellant’s PCRA petition without a hearing
      pursuant to Pa.R.Crim.P. 907.          Appellant’s petition was
      su[b]sequently dismissed by the court by order dated September
      9, 2013.

            Appellant filed a timely notice of appeal to this Court from
      that order[.] . . .

(Commonwealth v. Johnson, 2015 WL 6169417, at *1–2 (Pa. Super. filed

Feb. 23, 2015)) (unpublished memorandum) (footnotes and some record

citations omitted; record citation formatting provided).

      A panel of this Court affirmed the PCRA court’s order on February 23,

2015. (See id. at *1). Our Supreme Court denied Appellant’s petition for

allowance of appeal on August 19, 2015. (See Commonwealth v. Johnson,

121 A.3d 495 (Pa. 2015)).



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       On September 10, 2015, Appellant filed the instant pro se PCRA petition,

requesting relief primarily on the basis of a letter dated May 22, 2011, from

Maurice Stokes to Appellant’s then PCRA counsel.           (See PCRA Petition,

9/10/15, at unnumbered page 3, Exhibit B). In the letter, Stokes recants

statements that he made to homicide detectives in 2008 implicating Appellant

as the shooter, and declares that Appellant is innocent of the Kenyatta Smith

murder.1 The Commonwealth filed a letter brief on October 24, 2016. The

PCRA court issued notice of its intent to dismiss the petition without further

proceedings on December 15, 2016, and Appellant filed a response on

December 29, 2016. See Pa.R.Crim.P. 907(1). On January 18, 2017, the
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1Neither party called Stokes as a witness at trial. (See PCRA Court Opinion,
5/09/17, at 5; Commonwealth’s Brief, at 4, 11). In relevant part, the May
22, 2011 letter avers:

             To be clear I am speaking on the homicide in which
       [Appellant] was charged and convicted. [Appellant] was set up to
       take a fall simply because he was guilty of associating with me
       and a few others who grew a bad reputation in the neighborhood.

             I was previously in a profer [sic] where I’d receive a 5-10
       year sentence for a capital murder if I agreed to their terms which
       was to help them to get certain individuals behind bars. The
       statements supposedly made by me were total lies they coached
       in order to help them to pin their case on the person they wanted.

                                       *       *   *

             [Appellant] is innocent and I want to help prove this because
       I spoke directly to the individuals who orchestrated this and didn’t
       do the right thing, so I feel obligated to tell the truth.

(PCRA Petition, 9/10/15, at Exhibit B).



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court entered its order dismissing the petition as untimely. This timely appeal

followed.2

       Appellant raises the following questions for our review:

       1. [Did] the PCRA court erred [sic] in ruling that Appellant’s PCRA
       petition did not meet the newly discovered facts exception to the
       time-bar and that [Appellant] did not establish due diligence[?]

       2. [Is] Appellant [] entitled to relief where he was denied the
       effective assistance of PCRA counsel, as guaranteed under the
       United States and Pennsylvania Constitutions, when his PCRA
       counsel failed to raise the Maurice Stokes claim during the initial
       review stage of [Appellant’s] PCRA proceedings[?]

       3. In the interest of justice [should] Appellant’s claims regarding
       Maurice Stokes [] be heard[?]

       4. [Does] this Court [have] jurisdiction to adjudicate upon
       [Appellant’s] claim as he meets the timeliness exception due to
       governmental interference[?]

(Appellant’s Brief, at 15, 27, 33, 39) (some capitalization omitted).3

              When reviewing the propriety of an order denying PCRA
       relief, this Court is limited to a determination of whether the
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2 Appellant filed a timely, court-ordered concise statement of errors
complained of on appeal on March 13, 2017. The PCRA court entered an
opinion on May 9, 2017. See Pa.R.A.P. 1925.

3 We take these issues from the argument section of Appellant’s defective
brief. Although Appellant purports to raise six issues in the statement of the
questions involved, those issues do not correspond directly to the four he
raises in the argument section. (See id. at 5, 15, 27, 33, 39); see also
Pa.R.A.P. 2116, 2119. In addition, the argument section is rambling and lacks
cogent legal analysis. (See Appellant’s Brief, at 15-41). In the interest of
judicial economy, we will address Appellant’s claims to the extent we are able
to discern them. See Commonwealth v. Lyons, 833 A.2d 245, 252 (Pa.
Super. 2003), appeal denied, 879 A.2d 782 (Pa. 2005) (stating pro se litigants
must comply with procedural rules and declining to quash appeal despite
defective brief).

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      evidence of record supports the PCRA court’s conclusions and
      whether its ruling is free of legal error. This Court will not disturb
      the PCRA court’s findings unless there is no support for them in
      the certified record.

            . . . The question of whether a petition is timely raises a
      question of law, and where a petitioner raises questions of law,
      our standard of review is de novo and our scope of review is
      plenary.

Commonwealth v. Hudson, 156 A.3d 1194, 1196–97 (Pa. Super. 2017),

appeal denied, 2017 WL 3614192 (Pa. filed Aug. 23, 2017) (citation omitted).

      All PCRA petitions must be filed within one year of the date upon which

the judgment of sentence became final, unless one of the statutory exceptions

set forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) applies.    See 42 Pa.C.S.A. §

9545(b)(1). The petitioner bears the burden to plead and prove an applicable

statutory exception. See Commonwealth v. Robinson, 139 A.3d 178, 186

(Pa. 2016).

      “There is no absolute right to an evidentiary hearing.” Commonwealth

v. Burton, 121 A.3d 1063, 1067 (Pa. Super. 2015), aff’d, 158 A.3d 618 (Pa.

2017) (citation omitted). “On appeal, we examine the issues raised in light of

the record to determine whether the PCRA court erred in concluding that there

were no genuine issues of material fact and in denying relief without an

evidentiary hearing.” Id. (citation and internal quotation marks omitted). “If

the [PCRA] petition is determined to be untimely, and no exception has been

pled and proven, the petition must be dismissed without a hearing because

Pennsylvania courts are without jurisdiction to consider the merits of the




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petition.” Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa. Super. 2011),

appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted).

        Section 9545 of the PCRA provides only three limited exceptions that

allow for review of an untimely PCRA petition:

               (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).        Any petition invoking one of these

exceptions “shall be filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S.A. § 9545(b)(2).

        Here, Appellant’s judgment of sentence became final on September 9,

2011, the date that he discontinued his direct appeal. See Commonwealth

v. McKeever, 947 A.2d 782, 785 (Pa. Super. 2008). Therefore, Appellant

had until September 9, 2012 to file a timely PCRA petition. See 42 Pa.C.S.A.

§ 9545(b)(1).      Thus, the instant petition filed on September 10, 2015, is

patently untimely, and the burden fell upon Appellant to plead and prove that

one of the enumerated exceptions to the one-year time-bar applied to his

case.



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      Appellant first claims the benefit of the newly-discovered facts exception

set forth at section 9545(b)(1)(ii), based on his receipt of the Stokes letter.

(See Appellant’s Brief, at 15-27). According to Appellant, he first learned of

the May 2011 Stokes letter on September 3, 2015—more than four years after

it was written—when his former PCRA counsel sent him his case file, which

included the letter. (See id. at 15-16). Appellant further asserts that he filed

the instant PCRA petition well-within sixty days of his receipt of the letter.

(See id. at 16). This claim fails.

            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.


                                     *    *    *

            [S]ubsection (b)(1)(ii) 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, 111 A.3d 171, 176–77 (Pa. Super. 2015), appeal

denied, 125 A.3d 1197 (Pa. 2015) (case citations and quotation marks

omitted; emphasis in original).


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      In Commonwealth v. Brown, 141 A.3d 491 (Pa. Super. 2016), this

Court considered whether an affidavit describing an alleged confession of

another individual to a shooting for which the appellant was convicted

constituted a newly-discovered fact. The Brown Court concluded that it did

not, explaining:

      evidence which purportedly reveals that someone other than [the
      petitioner] committed the murder is hearsay, not within any
      exception, and so unreliable as to be inadmissible. A claim which
      rests exclusively upon inadmissible hearsay is not of a type that
      would implicate the [newly-discovered fact] exception to the
      timeliness requirement, nor would such a claim, even if timely,
      entitle [the petitioner] to relief under the PCRA.

Brown, 141 A.3d at 501 (citation omitted).

      Likewise, here, the Stokes letter is hearsay because it is an out-of-court

statement offered for the truth of the matter asserted, i.e., that Appellant is

innocent. See Pa.R.E. 801(c). Therefore, it was inadmissible hearsay and

does not fall under the newly-discovered fact timeliness exception.        See

Brown, 141 A.3d at 501.

      Furthermore, Appellant failed to demonstrate that he acted with due

diligence in obtaining Stokes’ letter.   The record reflects that Stokes gave

statements to homicide detectives regarding the Kenyatta Smith shooting in

May and October 2008. (See PCRA Petition, 9/10/15, at Exhibit A). According

to those statements, Stokes and Appellant were from the same neighborhood

and knew one another for many years, since 1999. (See id.). Stokes sent

the letter asserting Appellant’s innocence to Appellant’s then privately-

retained PCRA counsel in May of 2011, more than four years before Appellant

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filed the instant PCRA petition.   As the PCRA court points out, Appellant’s

assertion that he did not know about the letter at the time Stokes sent it to

counsel “strains credulity[,]” where Stokes had to be directed as to whom to

send this letter. (PCRA Ct. Op., at 6). We agree, and conclude that Appellant

has failed to meet his burden of establishing the applicability of the newly-

discovered facts exception to his untimely PCRA petition.

      Appellant next argues that he is entitled to relief based on his claim of

ineffective assistance of PCRA counsel, for counsel’s alleged failure to take

appropriate action after receiving the Stokes letter. (See Appellant’s Brief, at

27-33). However, it is well-settled that “a claim that counsel was ineffective

will not save an untimely PCRA petition.” Commonwealth v. Carr, 768 A.2d

1164, 1167 (Pa. Super. 2001) (citations omitted); see also Commonwealth

v. Lesko, 15 A.3d 345, 367 (Pa. 2011) (“[I]t is well established that the fact

that a petitioner’s claims are couched in terms of ineffectiveness will not save

an otherwise untimely petition from the application of the time restrictions of

the PCRA.”) (citation omitted). Accordingly, Appellant’s ineffective assistance

of counsel claim does not serve as a basis for circumventing the PCRA’s

timeliness requirements.

      Appellant next maintains that his claims regarding Maurice Stokes

should be heard “in the interest of justice” and fairness. (Appellant’s Brief, at

33; see id. at 34-39) (capitalization omitted). This claim also fails.

      As noted,




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        PCRA time limits are jurisdictional in nature, implicating a court’s
        very power to adjudicate a controversy. Accordingly, the period
        for filing a PCRA petition is not subject to the doctrine of equitable
        tolling; instead, the time for filing a PCRA petition can be extended
        only if the PCRA permits it to be extended, i.e., by operation of
        one of the statutorily enumerated exceptions to the PCRA
        time-bar. The court cannot ignore a petition’s untimeliness and
        reach the merits of the petition. . . .

Commonwealth v. Mitchell, 141 A.3d 1277, 1284 (Pa. 2016) (citations and

quotation marks omitted; emphasis added).

        Here, Appellant’s invocation of the interest of justice and fairness does

not implicate one of the three limited statutorily enumerated exceptions to the

PCRA’s time bar, and cannot serve as the basis for jurisdiction over his

untimely petition. See id. Accordingly, Appellant’s argument fails.

        Finally,   Appellant   claims    the   applicability   of   the   governmental

interference exception at section 9545(b)(1)(iii), based on assertions Stokes

made regarding a plea agreement in the May 2011 letter. (See Appellant’s

Brief, at 39-41).      Appellant argues that the Commonwealth committed a

Brady4 violation by neglecting to disclose to him that Stokes was given a plea

deal in exchange for providing authorities with information leading to his

arrest and conviction. (See id. at 39-40). This claim also fails.

              Under Brady and subsequent decisional law, a prosecutor
        has an obligation to disclose all exculpatory information material
        to the guilt or punishment of an accused, including evidence of an
        impeachment nature. To establish a Brady violation, an appellant
        must prove three elements: (1) the evidence at issue was
        favorable to the accused, either because it is exculpatory or
        because it impeaches; (2) the evidence was suppressed by the

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4   Brady v. Maryland, 373 U.S. 83 (1963).

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      prosecution, either willfully or inadvertently; and (3) prejudice
      ensued. The burden rests with the appellant to prove, by
      reference to the record, that evidence was withheld or suppressed
      by the prosecution. The evidence at issue must have been
      material evidence that deprived the defendant of a fair trial.
      Favorable evidence is material, and constitutional error results
      from its suppression by the government, if there is a reasonable
      probability that, had the evidence been disclosed to the defense,
      the result of the proceeding would have been different. A
      reasonable probability is a probability sufficient to undermine
      confidence in the outcome.

Commonwealth v. Ovalles, 144 A.3d 957, 965 (Pa. Super. 2016) (citations

and quotation marks omitted).

      “Although a Brady violation may fall within the governmental

interference exception, the petitioner must plead and prove the failure to

previously raise the 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), cert. denied, 555 U.S. 916 (2008) (citation omitted).

      Here, the PCRA court rejected Appellant’s claim premised on the

Commonwealth’s alleged withholding of information regarding a plea

agreement with Stokes because Stokes did not testify at Appellant’s trial, nor

were his statements introduced as evidence.        (See PCRA Ct. Op., at 8).

“[T]herefore, any form of impeachment evidence would be utterly irrelevant

as to this non-witness.”     (Id.).   We agree.     The purported information

regarding non-witness Stokes could not “have been material evidence that

deprived [Appellant] of a fair trial[,]” and thus could not have formed the basis




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of a Brady violation. Ovalles, supra at 965 (citation and internal quotation

mark omitted).

       Further, as previously discussed, Appellant has not established that he

acted with due diligence in obtaining the Stokes letter referencing the plea

agreement.      His argument fails for this reason as well.   See Abu-Jamal,

supra at 1268.

       In sum, we conclude Appellant has not met his burden of proving that

his untimely PCRA petition fits within one of the three exceptions to the PCRA’s

time-bar. See Robinson, supra at 186.5 Accordingly, we affirm the order

of the PCRA court.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/2/2018




____________________________________________


5 To the extent Appellant argues that he was entitled to a hearing on his
untimely PCRA petition, we disagree, and discern no error in this regard. (See
Appellant’s Brief, at 5, 17, 22, 27, 41); see also Burton, supra at 1067;
Jackson, supra at 519.

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