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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                         :
IRA A. JOHNSON,                          :           No. 41 EDA 2014
                                         :
                        Appellant        :


              Appeal from the PCRA Order, December 20, 2013,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0410491-2000


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND STABILE, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED DECEMBER 12, 2014

      Appellant, Ira A. Johnson, appeals from the December 20, 2013 order

dismissing his third petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Finding that the PCRA petition under

review was untimely filed and that no valid exception to the time

requirements of the PCRA exists, we affirm.1

      On July 12, 2001, following a bench trial, appellant was convicted of

first degree murder, robbery, and possession of an instrument of crime

(“PIC”) in relation to the shooting of Stephon Copper.         Appellant killed


1
  We affirm, albeit based on an analysis different from that articulated by the
PCRA court. See Commonwealth v. Harper, 611 A.2d 1211, 1213 n.1
(Pa.Super. 1992) (this court “may affirm the decision of the trial court if
there is any basis on the record to support the trial court’s action. This is so
even if we rely upon a different basis in our decision to affirm[]”) (citations
omitted).
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Copper at Copper’s apartment in Philadelphia on February 18, 2000.

Appellant was sentenced to an aggregate term of life imprisonment.           On

August 19, 2003, a panel of this court affirmed judgment of sentence, and

our supreme court denied appeal on March 2, 2004.         Commonwealth v.

Johnson, 833 A.2d 1146 (Pa.Super. 2003) (unpublished memorandum),

appeal denied, 845 A.2d 817 (Pa. 2004).

      Appellant filed a timely pro se PCRA petition on June 15, 2004.

(Docket #15.)     Counsel was appointed and filed an amended petition

maintaining that trial counsel was ineffective for interfering with appellant’s

right to testify on his own behalf.     Following hearings, the petition was

denied and appellant filed a notice of appeal. On March 12, 2007, this court

affirmed the dismissal, and appellant’s petition for allowance of appeal to the

Pennsylvania    Supreme      Court    was     denied    August     15,    2007.

Commonwealth v. Johnson, 927 A.2d 652 (Pa.Super. 2007) (unpublished

memorandum), appeal denied, 929 A.2d 1161 (Pa. 2007).

      On October 2, 2007, appellant filed a second pro se PCRA petition.

Therein, he presented a claim that his prior counsel was ineffective for failing

to conduct an investigation of his claim that he was far from the crime scene

when the murder occurred. He also averred that he had new evidence that

the investigator used by trial counsel was convicted of fraud and other

criminal acts and that the investigation of his case was inadequate. Counsel




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was appointed and subsequently filed a Turner/Finley letter,2 indicating

that the issues were untimely and that there were no additional issues which

could be raised. Appellant’s second PCRA petition was denied on February 5,

2009. On February 16, 2010, this court affirmed the PCRA court’s denial of

relief, finding that the petition was untimely and no exceptions applied.

Commonwealth v. Johnson, 996 A.2d 546 (Pa.Super. 2010), appeal

denied, 9 A.3d 627 (Pa. 2010).

        On August 24, 2010, while appellant was petitioning for allowance of

appeal before our supreme court, appellant purportedly became aware of

new     facts   that   would   affect   his    conviction.   A   fellow   inmate,

Terrence Johnson,3 signed an affidavit on September 28, 2010, in which he

claimed to have been present outside 916 North 17th Street on the evening

Copper was murdered.       Johnson averred that he saw appellant leave the

residence. According to Johnson, who was 12 years old at the time of the

murder, he then heard the victim call out to appellant from a third-floor

window, asking him to come back.              Johnson, however, admitted in the

affidavit that he did not know if appellant had returned.        Johnson did not

know appellant had been charged with the crime.




2
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
3
    Appellant and Terrence Johnson are not related.


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      On October 15, 2010, within 60 days of the date appellant claimed to

have learned of Johnson’s information, appellant filed a pro se PCRA

petition.   The PCRA court, however, rejected the petition as prematurely

filed as appellant’s application for allocatur from the denial of his second

PCRA petition was still pending.

      The Supreme Court of Pennsylvania denied appellant’s petition for

allowance    of   appeal   on   November   1,   2010.   (Docket   #41.)     On

November 10, 2010,4 appellant re-filed his third pro se PCRA petition.

(Docket #42.) Pursuant to Pa.R.Crim.P. 907, on April 27, 2011, the PCRA

court gave notice of its intention to dismiss appellant’s PCRA petition without

a hearing, indicating the petition was untimely filed more than 60 days after

Johnson purportedly came forward.      (Docket #43.)    A panel of this court

vacated the dismissal and remanded the matter for consideration on the

merits relying on Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000)

(where an appellant’s PCRA appeal is pending before a court, a subsequent

petition cannot be filed until the resolution of the pending PCRA petition; the

subsequent petition must be filed within 60 days of the date of the order

which finally resolves the previous petition rather than the date the new




4
    The docket reflects that appellant filed a pro se PCRA petition on
November 15, 2010. However, it was time stamped November 10, 2010;
and under the prisoner mailbox rule, a petition filed by a prisoner is deemed
“filed” on the date it is deposited with prison authorities for mailing.
Commonwealth v. Jones, 700 A.2d 423 (Pa. 1997).


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facts are discovered).     Commonwealth v. Johnson, 48 A.3d 474

(Pa.Super. 2012) (unpublished memorandum).

     On July 25, 2012, appellant, now represented by counsel, filed an

amended third PCRA petition to which he attached the affidavit of Johnson. 5

In anticipation of an evidentiary hearing based on the affidavits, appellant

was transferred to SCI Huntington where he came into contact with

Paul Simmons. After speaking with appellant, Simmons agreed to submit an

affidavit stating that he recalled taking a bus to Reading with appellant on

the night of the murder. He remembered the evening as appellant lent him

his cell phone and let him read his newspaper.        A second amended PCRA

petition was filed on April 23, 2013, alleging that Simmons was an

after-discovered alibi witness and included Simmons’ “unsworn affidavit,”

appellant’s account of the events, and correspondence relating to bus

schedules. The PCRA court denied a hearing on this second after-discovered

witness but did not provide a reason on the record.

     An evidentiary hearing was held on December 20, 2013.           At the

hearing, testimony was presented that on September 12, 2012, Johnson told

a defense investigator that the affidavit was untrue and that he would

disavow it if called to testify. (Notes of testimony, 12/20/13 at 31-38.) At

an evidentiary hearing, Johnson repudiated the contents of his affidavit. He


5
  Appellant also attached an affidavit from Shawn Clark, an inmate to whom
Johnson purportedly disclosed what he had seen on the day of the murder.
Clark’s affidavit set forth what Johnson allegedly told him.


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testified that he had no recollection of the events of February 18, 2000. He

confirmed that his affidavit was untrue and testified that he was not outside

of the building on that date.     “That’s why I’ve been trying to tell you I

wanted to withdraw my affidavit.”      Johnson did not write the affidavit, in

which his name was misspelled; he only agreed to sign it as he wanted to

help out his sister’s former neighbor.      (Id. at 7-9, 15-16, 23-31, 35-37.)

The PCRA court dismissed the petition, and appellant has filed a notice of

appeal.

      The following issues have been presented for our review:

            I.     Is the appellant entitled to post-conviction
                   relief in the form of a new trial since
                   Terrance Johnson  is    an  after-discovered
                   witness?

            II.    Is the appellant entitled to post-conviction
                   relief in the form of a new trial or a remand for
                   an evidentiary hearing and/or to supplement
                   the record since Paul Simmons is an
                   after-discovered witness?

Appellant’s brief at 4.

      Before addressing the issues raised by appellant, we set forth some

general principles relevant to our review.

                 Our standard of review requires us to
            determine whether the ruling of the PCRA court is
            supported by the record and is free of legal error.
            Commonwealth v. Marshall, 596 Pa. 587, 947
            A.2d 714, 719 (2008). The PCRA court’s credibility
            determinations are binding on this Court when they
            are supported by the record. Commonwealth v.
            Johnson, 600 Pa. 329, 966 A.2d 523, 532, 539
            (2009). However, this Court applies a de novo


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            standard of review to the PCRA court’s legal
            conclusions. Commonwealth v. Rios, 591 Pa. 583,
            920 A.2d 790, 810 (2007).

Commonwealth v. Hutchinson, 25 A.3d 277, 284-285 (Pa. 2011).

      A PCRA petition must be filed within one year of the date that the

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

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition.   Commonwealth v.

Taylor, 933 A.2d 1035, 1038 (Pa.Super. 2007), appeal denied, 951 A.2d

1163 (Pa. 2008).

      Appellant’s judgment of sentence became final on May 31, 2004,

90 days after our supreme court denied appeal and the time for filing a

petition for writ of certiorari before the United States Supreme Court

expired. See 42 Pa.C.S.A. § 9545(b)(3); Rule 13, Rules of the United States

Supreme Court. The instant petition, filed in 2010, is manifestly untimely.

      Notwithstanding the untimely nature of the petition, the PCRA provides

for three exceptions to the one-year time bar. 42 Pa.C.S.A. § 9545(b)(1)(i)-

(iii). This court has repeatedly stated it is the appellant’s burden to allege

and prove that one of the timeliness exceptions applies.          See, e.g.,

Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999). Appellant

attempts to invoke the “after-discovered facts” exception to the time-bar.

42 Pa.C.S.A. § 9545(b)(1)(ii). The after-discovered facts exception includes

a due diligence component. The PCRA requires that any petition invoking an



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exception must be filed within 60 days of the time the claim could first have

been raised. See 42 Pa.C.S.A. § 9545(b)(2). A petitioner fails to satisfy the

60-day requirement of Section 9545(b) if he or she fails to explain why, with

the exercise of due diligence, the claim could not have been filed earlier.

Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001).

     Appellant’s after-discovered fact claim is premised on an affidavit

signed by Johnson. However, the PCRA court credited Johnson’s testimony

that he signed the affidavit as a favor and did not actually witness the

events recounted in the affidavit. At the hearing, Johnson testified that he

did not create the affidavit, in which his own name was misspelled, and he

unambiguously disavowed its contents.     (Notes of testimony, 12/20/13 at

24.) For instance:

           [Prosecutor:] Let me read you the next sentence.
           “Sometime between 6:30 p.m. and 7:30 p.m. I was
           sitting on the front steps of the apartment building,
           when I saw Ira Johnson exit 914 North 17th Street.”

                 Is that true or false?

           A.    False.

           Q.    The next sentence, “About 10 to 15 seconds
                 after Ira came out of the 914 building, I first
                 heard, then saw Stephon Copper calling Ira
                 from his third floor apartment window.”

                 True or false?

           A.    False.

           Q.    “Stephon was telling Ira to come back to the
                 apartment and Ira refused and kept walking up


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                   17th Street, then down Girard         Avenue.
                   Stephon went back in his apartment.

                   True or false?

              A.   False.

              Q.   Isn’t it true, Mr. Johnson, that you were just
                   trying to help out Ira Johnson who was locked
                   up with you at SCI Smithfield when you signed
                   this [affidavit]?

              A.   Yes.

Notes of testimony, 12/20/13 at 29-30.

     As the Commonwealth states, a factual finding is unassailable on

appeal.   Hutchinson, supra (“The PCRA court’s credibility determinations

are binding on this Court when they are supported by the record.”).

Therefore, appellant’s newly-discovered evidence was found to be not

credible. Accordingly, we conclude that the evidence of record supports the

PCRA court’s determination, and its denial of appellant’s PCRA claim is free

from error.

     Next, appellant argues that he is entitled to relief, or at least a

hearing, based on Simmons’ recollection of events the night of the murder.

Appellant also requests a remand to supplement the record as he claims a

bus schedule existed to show that there was 9:00 p.m. bus service from

Philadelphia to Reading on the night of the murder. These contentions are

waived and unreviewable.




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      As the Commonwealth offers, the record does not indicate that

appellant ever sought or received permission to file an amended petition.

(Commonwealth brief at 18, 24.)     Under our Rules of Criminal Procedure,

“[t]he judge may grant leave to amend or withdraw a petition for

post-conviction collateral relief at any time.    Amendment shall be freely

allowed to achieve substantial justice.”         Pa.R.Crim.P. 905(A).     See

Commonwealth v. Porter, 35 A.3d 4, 12 (Pa. 2012) (reiterating that

Rule 905(A) “explicitly states that amendment [of a PCRA petition] is

permitted only by direction or leave of the PCRA court”) (emphasis added).

      There is no indication in the record that the PCRA court granted

appellant leave to amend his PCRA petition via the filing of an additional

supplemental amendment on April 23, 2013, which included the claims

raised concerning Simmons’ unsworn affidavit.         Accordingly, appellant’s

second claims are waived. See Pa.R.A.P. 302(a) (“Issues not raised in the

lower court are waived and cannot be raised for the first time on appeal.”).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.


Prothonotary

Date: 12/12/2014




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