J-A29037-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                   Appellee                 :
                                            :
                      v.                    :
                                            :
AARON JOHNSON,                              :
                                            :
                   Appellant                :     No. 16 EDA 2017

              Appeal from the PCRA Order November 18, 2016
            in the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0704361-1993

BEFORE:     LAZARUS, PLATT,* and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:            FILED DECEMBER 04, 2017

      Aaron Johnson (Appellant) appeals from the order dismissing his petition

filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-

9546. We affirm.

      This Court offered the following relevant factual summary and

procedural history.

      On October 5, 1994, a jury convicted Appellant of two counts of
      robbery, two counts of aggravated assault, criminal conspiracy,
      and carrying firearms on a public street or in a public place in
      Philadelphia. On November 29, 1994, the trial court sentenced
      Appellant to an aggregate term of twenty-five to fifty years’
      imprisonment. Appellant filed a post-sentence motion on
      December 7, 1994, which was denied on April 14, 1995, by
      operation of law. Appellant did not pursue direct review. Between
      1996 and 2007, Appellant filed three PCRA petitions, which were
      all denied and later affirmed. On April 11, 2011, Appellant filed [a
      fourth] pro se serial PCRA petition, which the PCRA court denied
      as untimely [filed] on March 14, 2012, after issuing notice of its



*Retired Senior Judge assigned to the Superior Court.
J-A29037-17


      intent to dismiss the petition pursuant to Pa.R.Crim.P. 907.

Commonwealth v. Johnson, 97 A.3d 797 (Pa. Super. 2014) (unpublished

memorandum at 1).1

      Appellant filed a notice of appeal to this Court, and we concluded that

his April 11, 2011 PCRA petition was untimely filed, and that he failed to prove

an exception to the timeliness requirements of the PCRA pursuant to 42

Pa.C.S. § 9545(b)(1). Thus, we affirmed the dismissal of that petition. Id.

      On April 9, 2015, Appellant filed the PCRA petition at issue in this case.

Therein, Appellant asserted his petition was timely filed pursuant to 42 Pa.C.S.

§ 9545(b)(1)(ii), which provides that “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.” Appellant’s purported newly-

discovered fact was his co-defendant’s May 16, 2012 testimony in Appellant’s

homicide jury trial.   Additionally, Appellant asserted that his sentence was

illegal pursuant to Alleyne v. United States, 570 U.S. 99 (2013).

      The PCRA court reviewed the petition, and concluded that Appellant

failed to prove applicability of the time-bar exceptions. Thus, the court issued



1 On June 30, 2009, the victim whom Appellant shot in the neck during the
underlying incident died as a result of that gunshot wound. Appellant was
charged with criminal homicide at CP-51-CR-0003744-2010, and was
convicted of first-degree murder following a jury trial on May 14-17, 2012.
This Court affirmed Appellant’s judgment of sentence in that case.
Commonwealth v. Johnson, 97 A.3d 799 (Pa. Super. 2014) (unpublished
memorandum).


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J-A29037-17


a notice of its intent to dismiss the petition without a hearing.   Appellant

responded, and on November 18, 2016, the PCRA court dismissed Appellant’s

petition. Appellant timely filed a notice of appeal.2

      Before we reach the arguments Appellant sets forth on appeal, we must

determine whether Appellant’s petition was timely filed. “The PCRA’s time

restrictions are jurisdictional in nature.” Commonwealth v. Chester, 895

A.2d 520, 522 (Pa. 2006). “Thus, ‘[i]f a PCRA petition is untimely, 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.’” Id. (quoting Commonwealth v. Lambert, 884 A.2d

848, 851 (Pa. 2005)). “The question of whether a petition is timely raises a

question of law. Where the petitioner raises questions of law, our standard of

review is de novo and our scope of review plenary.” Commonwealth v.

Brown, 141 A.3d 491, 499 (Pa. Super. 2016).

      Under the PCRA, all petitions must be filed within one year of the date

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

statutory exceptions applies. 42 Pa.C.S. § 9545(b)(1); Chester, 895 A.2d at

522. For purposes of the PCRA, a judgment becomes final at the conclusion

of direct review. 42 Pa.C.S. § 9545(b)(3).




2Appellant was not ordered to file a statement of errors complained of on
appeal, but the PCRA court did file an opinion pursuant to Pa.R.A.P. 1925(a).


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J-A29037-17


      The PCRA sets forth the following time requirements for filing a PCRA

petition.

      (b) Time for filing petition.--

            (1) 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
            that:

                  (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.

            (2) Any petition invoking an exception provided in
            paragraph (1) shall be filed within 60 days of the date
            the claim could have been presented.

42 Pa.C.S. § 9545.

      The newly-discovered facts 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



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J-A29037-17


      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.

Brown, 141 A.3d at 500 (quoting Commonwealth v. Bennett, 930 A.2d

1264, 1272 (Pa. 2007) (internal quotation marks and citations omitted;

emphasis removed)).

      Appellant’s purported newly-discovered fact does not satisfy the

aforementioned requirements. Because Appellant’s co-defendant testified at

his first trial in 1994, where Appellant was present during his co-defendant’s

testimony, it is not evident that this allegedly new information “could not have

been ascertained by the exercise of due diligence.” Id.         Moreover, even

assuming that this new testimony constituted a newly-discovered fact,

Appellant became aware of it on May 16, 2012, the day that his co-defendant

testified in his 2012 homicide trial. Appellant’s instant PCRA petition, filed on

April 9, 2015, was not filed within 60 days of that date.

      Appellant’s attempted invocation of the retroactive-application-of-a-

constitutional-right exception to his untimely-filed PCRA petition based on

Alleyne also fails. See Commonwealth v. Washington, 142 A.3d 810, 820

(Pa. 2016) (“Alleyne does not apply retroactively to cases pending on

collateral review”).3



3 Appellant also requests reinstatement of his appellate rights because he was
allegedly abandoned by all prior counsel. This claim does not overcome the
(footnote continued on next page)


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J-A29037-17


      Thus, we conclude that the PCRA court’s dismissal of Appellant’s PCRA

petition was proper and, accordingly, we affirm the PCRA court’s November

18, 2016 order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary




Date: 12/4/2017




(footnote continued)
untimeliness of Appellant’s petition. Appellant has failed to establish due
diligence or that the fact of the alleged abandonment was unknown to him, as
he previously raised the same claim in prior PCRA petitions. Furthermore,
even if Appellant’s petition were timely-filed, he is not eligible for relief as
Appellant raised this claim in prior PCRA petitions, and this Court addressed
those claims. Commonwealth v. Johnson, 815 A.2d 1127 (Pa. Super.
2002) (unpublished memorandum at 5-6).


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