J-S14028-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                               :           PENNSYLVANIA
                        Appellee               :
                                               :
                v.                             :
                                               :
    BRYANT JOHNSON                             :
                                               :
                        Appellant              :           No. 305 EDA 2019

             Appeal from the PCRA Order Entered January 17, 2019
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003409-2013


BEFORE: BOWES, J., KING, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KING, J.:                                      FILED JUNE 30, 2020

        Appellant, Bryant Johnson, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which dismissed his second

petition filed under the Post Conviction Relief Act (“PCRA”).1 We affirm.

        The relevant facts and procedural history of this case are as follows. On

November 3, 2014, Appellant entered negotiated guilty pleas to third-degree

murder, robbery, conspiracy, and other offenses. That same day, the court

imposed the agreed-upon sentence of thirty (30) to seventy (70) years’

imprisonment. Appellant did not pursue a direct appeal.

        Appellant timely filed a pro se PCRA petition on October 16, 2015.

Among      other     things,   Appellant   claimed   the   Commonwealth   withheld


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1   42 Pa.C.S.A. §§ 9541-9546.
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exculpatory evidence, thereby causing him to enter an involuntary guilty plea.

The PCRA court appointed counsel, who filed a motion to withdraw and “no-

merit” letter on August 26, 2016.      On October 19, 2016, the court issued

Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition without a

hearing. Appellant did not respond to the Rule 907 notice, and the PCRA court

dismissed Appellant’s petition and permitted counsel to withdraw on

November 18, 2016.

      On April 26, 2017, Appellant submitted a pro se filing styled as an

“application to file nunc pro tunc.” The court treated the filing as a serial PCRA

petition, but it again appointed counsel. Current counsel filed an amended

PCRA petition on Appellant’s behalf on November 30, 2017. The amended

petition re-raised the claims included in the August 2016 “no-merit” letter.

Appellant also raised new arguments, including an allegation that Philadelphia

Police Detective James Pitts “forced or coerced” Appellant into giving a false

confession.    (Amended PCRA Petition, filed 11/30/17, at ¶ 10(B)).

Significantly, the amended petition did not specifically invoke any of the

PCRA’s timeliness exceptions. Instead, Appellant baldly asserted “his pro se

petition was timely filed and that this Amended Petition for [PCRA] Relief is

also timely since any new issues that are raised herein are permitted by the

Exceptions section of the [PCRA] statute.” (Id. at ¶ 15).

      After a series of continuances, Appellant filed another counseled,

amended PCRA petition on October 30, 2018.            Again, Appellant did not


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expressly plead or prove the applicability of any of the PCRA’s timeliness

exceptions.   Rather, Appellant continued to develop his claims regarding

Detective Pitts’ interview tactics. Appellant insisted: 1) Detective Pitts coerced

him into providing a false confession; 2) plea counsel was ineffective for failing

to challenge the validity of the confession and subsequent plea; and 3) new

information, in the form of other criminal cases involving misconduct on the

part of Detective Pitts, supported Appellant’s assertions.

      On December 13, 2018, the Commonwealth filed a motion to dismiss

Appellant’s petition. The next day, the PCRA court provided Rule 907 notice.

Appellant filed a response to the Rule 907 notice on January 3, 2019. In his

response, Appellant requested an evidentiary hearing to explore the

circumstances surrounding his confession. On January 17, 2019, the PCRA

court dismissed Appellant’s petition as untimely filed.

      On January 22, 2019, Appellant timely filed a notice of appeal. That

same day, the PCRA court ordered Appellant to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. Appellant filed his Rule

1925(b) statement on February 13, 2019.

      Appellant now raises three issues on appeal:

         WHETHER THE CONFESSION OR STATEMENT THAT WAS
         RENDERED BY APPELLANT TO DETECTIVE JAMES PITTS
         WAS IN VIOLATION OF THE 5TH, 6TH AND 14TH
         AMENDMENTS OF THE UNITED STATES CONSTITUTION
         AND ARTICLE I, SECTION 9 OF THE PENNSYLVANIA
         CONSTITUTION WHICH IN THE CIRCUMSTANCES OF THIS
         CASE SO UNDERMINED THE TRUTH-DETERMINING
         PROCESS THAT NO RELIABLE ADJUDICATION OF GUILT OR

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         INNOCENCE COULD HAVE TAKEN PLACE WHERE DETECTIVE
         JAMES PITTS AND HIS ASSOCIATES COERCED OR
         INVOLUNTARILY FORCED [APPELLANT] TO WRONGFULLY
         CONFESS TO AND EVENTUALLY PLEAD GUILTY TO THE
         CRIMES THAT APPELLANT EVENTUALLY ENDED UP FALSELY
         PLEADING GUILTY TO, INCLUDING THE CRIMES OF THIRD
         DEGREE MURDER, ROBBERY, CONSPIRACY TO COMMIT
         ROBBERY AND USING A MOTOR VEHICLE AS A WEAPON.

         WHETHER APPELLANT[’S] … 6TH AMENDMENT RIGHTS
         UNDER THE UNITED STATES CONSTITUTION AND HIS
         RIGHTS UNDER ARTICLE I, SECTION 9 OF THE
         PENNSYLVANIA CONSTITUTION WERE SUBJECTED TO
         INEFFECTIVE ASSISTANCE OF COUNSEL, WHICH IN THE
         CIRCUMSTANCES OF THIS PARTICULAR CASE SO
         UNDERMINED THE TRUTH DETERMINING PROCESS THAT
         NO RELIABLE ADJUDICATION OF GUILT OR INNOCENCE
         COULD HAVE TAKEN PLACE WHEN HIS TRIAL ATTORNEY
         DID NOT CHALLENGE THE COMMONWEALTH WITH A
         MOTION TO SUPPRESS THE FALSE CONFESSION THAT
         [APPELLANT] SUBMITS WAS COERCED OR INVOLUNTARILY
         FORCED FROM HIM BY DETECTIVE JAMES PITTS’
         WRONGFUL AND ILLEGAL ACTIVITY AND WHERE
         APPELLANT’S TRIAL ATTORNEY FAILED TO FILE A MOTION
         TO WITHDRAW APPELLANT’S GUILTY PLEA WHERE IT WAS
         NOT KNOWING, VOLUNTARY AND INTELLIGENT AND
         WHERE APPELLANT BELIEVED THAT HE HAD NO
         ALTERNATIVE BUT TO PLEAD GUILTY BECAUSE OF HIS
         PRIOR COERCED CONFESSION.

         WHETHER THE UNAVAILABILITY AT THE TIME OF TRIAL OF
         AFTER DISCOVERED EXCULPATORY EVIDENCE THAT HAD
         SUBSEQUENTLY BECOME AVAILABLE ENTITLED APPELLANT
         … TO AN EVIDENTIARY HEARING OR A NEW TRIAL,
         NAMELY—THE WRONGFUL OR COERCIVE ACTIVITY OF
         DETECTIVE JAMES PITTS IN FORCING FALSE CONFESSIONS
         FROM APPELLANT IN THIS CASE AND THE HISTORY OF
         DETECTIVE JAMES PITTS IN HIS HAVING ENGAGED IN
         SUCH WRONGFUL OR COERCIVE BEHAVIOR IN THE PAST
         WITH OTHER ARRESTEES, A HISTORY THAT [APPELLANT’S]
         TRIAL ATTORNEY WAS UNAWARE OF AT THE TIME OF
         TRIAL.

(Appellant’s Brief at 4-5).

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      As a prefatory matter, the timeliness of a PCRA petition is a jurisdictional

requisite. Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008),

cert. denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009).

Pennsylvania law makes clear that no court has jurisdiction to hear an

untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837

A.2d 1157 (2003).      The PCRA requires a petition, including a second or

subsequent petition, to be filed within one year of the date the underlying

judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence

is 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 review.” 42 Pa.C.S.A. §

9545(b)(3).

      Generally, to obtain merits review of a PCRA petition filed more than

one year after the judgment of sentence became final, the petitioner must

allege and prove at least one of the three timeliness exceptions:

         (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

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           apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). “[W]hen a PCRA petition is not filed within

one year of the expiration of direct review, or not eligible for one of the three

limited exceptions, or 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.”

Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783

(2000).2

       To meet the “newly discovered facts” timeliness exception set forth in

Section 9545(b)(1)(ii), a petitioner must demonstrate that “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.” Commonwealth v. Brown,

111 A.3d 171, 176 (Pa.Super. 2015). “The focus of the exception is on [the]

newly discovered facts, not on a newly discovered or newly willing source for

previously known facts.” Commonwealth v. Burton, 638 Pa. 687, 704, 158

A.3d 618, 629 (2017) (internal citation and quotation marks omitted).

       Instantly, the court sentenced Appellant on November 3, 2014.

Appellant did not file a notice of appeal, and his judgment of sentence became


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2 As of December 24, 2018, Section 9545(b)(2) now allows any PCRA petition
invoking a timeliness exception to be filed within one year of the date the
claim first could have been presented. See Act 2018, Oct. 24, P.L. 894, No.
146, § 2, effective in 60 days [Dec. 24, 2018]. This amendment applies to
claims arising on or after December 24, 2017. Appellant filed the current
PCRA petition on April 26, 2017, so the amendment does not apply to him.

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final thirty days later, on or about December 3, 2014. See 42 Pa.C.S.A. §

9545(b)(3); Pa.R.A.P. 903(c)(3). Thus, Appellant had until December 3, 2015

to file a PCRA petition.      Appellant timely pursued a first PCRA petition on

October 16, 2015, which the court dismissed on November 18, 2016.

       Appellant filed the current PCRA petition on April 26, 2017, which was

over one year late and untimely on its face. See 42 Pa.C.S.A. § 9545(b)(1).

Appellant now argues he is entitled to PCRA relief, claiming plea counsel was

ineffective for failing to seek suppression of the confession and failing to

challenge the voluntariness of the guilty plea. Appellant also cites multiple

cases where litigants alleged that Detective Pitts used coercive interview

tactics.3 In light of these cases, Appellant insists the PCRA court should have

ordered an evidentiary hearing to gather additional evidence regarding the

circumstances surrounding his confession.

       Appellant, however, has failed to plead and prove any exception to the

PCRA timeliness requirements. To the extent Appellant’s arguments can be

interpreted as an attempt to invoke the new-facts exception to the PCRA’s

timeliness requirements, Appellant cannot demonstrate any new facts that

were unknown and could not have been ascertained through the exercise of


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3 Specifically, Appellant cites Commonwealth v. Brown, 134 A.3d 1097
(Pa.Super. 2016), Commonwealth v. White, 215 A.3d 676 (Pa.Super. 2019)
(unpublished memorandum), and Commonwealth v. Thorpe, 91 A.3d 1285
(Pa.Super. 2013) (unpublished memorandum).



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due diligence.4 Appellant participated in an interview with Detective Pitts, he

was aware of the detective’s tactics at that time, and he could have notified

prior counsel to challenge the validity of his confession earlier in the

proceedings.      We also note that the judicial decisions from other cases

involving Detective Pitts’ conduct do not amount to newly discovered facts.

See Commonwealth v. Watts, 611 Pa. 80, 23 A.3d 980 (2011) (stating

subsequent decisional law does not qualify as new fact capable of triggering

timeliness exception in PCRA). Moreover, Appellant’s ineffectiveness claims

also fail to qualify as a new fact to excuse an untimely PCRA petition. See

Gamboa-Taylor, supra (defining general class of ineffective assistance of



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4   The substantive claim of after-discovered evidence and the new-facts
exception to the PCRA timeliness requirements are often conflated and
referred to as the same theory of relief. These concepts, however, are not
interchangeable and require different proofs. Under the new-facts exception
to an untimely PCRA petition, a petitioner must establish “the facts upon
which the claim was predicated were unknown and…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. Bennett, 593 Pa. 382, 395,
930 A.2d 1264, 1272 (2007) (emphasis in original). Only if a petitioner meets
the statutory jurisdictional requirements by satisfying this exception to the
PCRA time-bar, can he then argue for relief on a substantive after-discovered-
evidence claim, which requires the petitioner to demonstrate: (1) the evidence
has been discovered after trial and it could not have been obtained at or prior
to trial through reasonable diligence; (2) the evidence is not cumulative; (3)
it is not being used solely to impeach credibility; and (4) it would likely compel
a different verdict. See, e.g., Commonwealth v. Washington, 592 Pa. 698,
927 A.2d 586 (2007); Commonwealth v. D’Amato, 579 Pa. 490, 856 A.2d
806 (2004). Here, Appellant’s brief includes argument on the substantive
claim of after-discovered evidence without actually analyzing the applicability
of the new-facts exception. (See Appellant’s Brief at 24-25).

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counsel claims that does not serve as exception to PCRA timeliness

requirements).    Accordingly, we affirm the order dismissing Appellant’s

current PCRA petition.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/30/2020




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