J-S90036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

MARCUS JOHNSON

                        Appellant                   No. 3759 EDA 2015


              Appeal from the PCRA Order November 17, 2015
             in the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0000576-1999
                                        CP-23-CR-0006098-1998
                                        CP-23-CR-0007000-1998
                                        CP-23-CR-0007001-1998


BEFORE: OTT, J., SOLANO, J. AND JENKINS, J.

MEMORANDUM BY JENKINS, J.:                     FILED DECEMBER 12, 2016

      Appellant Marcus Johnson appeals from the order of the Delaware

County Court of Common Pleas dismissing as untimely his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et

seq. After careful review, we affirm.

      This matter stems from armed robberies committed in Upper Darby

and Yeadon in Delaware County in September and October of 1998.         The

PCRA court outlined the pertinent procedural history as follows:

            [Appellant], Marcus Johnson, was convicted of four counts
      of [r]obbery, two counts of [f]irearms [n]ot to be [c]arried
      [w]ithout a [l]icense, and [c]riminal [c]onspiracy to [c]ommit
      [r]obbery. The jury found [Appellant] guilty of robbing one
      Wawa in Upper Darby Township as well as another Wawa in the
      Borough of Yeadon three separate times. All four robberies
      occurred with the assistance of a firearm. On May 2, 2000,
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     following the trial, he was sentenced to an aggregate prison
     sentence [that] totaled 30 to 70 years.

           During the trial, the Commonwealth presented ample
     evidence that left no doubt [Appellant] committed the robberies.
     Video surveillance at both stores produced evidence of the
     perpetrator for each of the robberies. Also, victims of each of
     the robberies positively identified [Appellant] as the perpetrator
     of the robberies both in a photo array and at his preliminary
     hearing.   [Appellant] questions most of this evidence and
     testimony in various appeals and [PCRA] motions.

            After [Appellant’s] sentence in May of 2000, he filed a
     timely appeal [and complied] with [Pa.R.A.P.] 1925(b). Here,
     [Appellant] argued a new trial should be granted because the
     court admitted a statement [Appellant] made to a police
     detective stating he would alter his physical appearance before
     trial. The Superior Court affirmed [Appellant’s] [j]udgment of
     [s]entence of thirty to seventy years in a [m]emorandum
     [o]pinion on August 29, 2001[,] reasoning that there was no
     error in admitting the statement and, even if there was, it was
     harmless.

            On September 20, 2001, [Appellant] filed his first timely
     post-conviction collateral relief petition.      After obtaining
     additional time to obtain and review testimony, defense counsel
     filed a “no merit” letter in accordance with the requirements of
     Pennsylvania v. Finley, 481 U.S. 551 (1987) and
     Commonwealth v. Turner, [] 544 A.2d 927 ([Pa.]1988).
     Subsequently, [Appellant] filed an objection to the Finley letter.
     On April 19, 2002, the PCRA court issued a “Notice of Intent to
     Dismiss Post Conviction Relief Act Petition Without Hearing,” and
     gave notice to [Appellant] that he had twenty (20) days to
     respond, or his PCRA petition would be dismissed.            Since
     [Appellant] failed to respond to [] PCRA counsel’s notice, on May
     24, 2002[,] the PCRA petition was dismissed.

           [Appellant] filed a timely appeal [of] the dismissal of his
     PCRA petition, to which on September 26, 2002[,] the PCRA
     [court] issued an opinion addressing the five issues from
     [Appellant’s] original pro se petition. On October 7, 2002, the
     Superior Court denied [Appellant’s] application for appointment
     of appellate counsel and subsequently affirmed the denial of
     [Appellant’s] PCRA petition in a [m]emorandum [o]pinion on
     June 30, 2003.


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               As a result of [Appellant’s] federal habeas litigation in
        2006, United States Magistrate Judge Timothy R. Rice issued a
        16-page Report and Recommendation and [the] Honorable
        Stewart J. Dalzell issued a 22-page [o]rder that approved the
        Report and Recommendation. Judge Dalzell acknowledged the
        wealth of evidence the trial court used to convict [Appellant],
        including videotapes of the robberies as well as positive
        identification by the victims before and during trial.

               In October 2009, Kevin Powell, another state inmate,
        approached [Appellant] and supposedly admitted to participating
        in an armed robbery that [Appellant] had been convicted of. Mr.
        Powell authored an affidavit that was mailed to [Appellant’s]
        attorney. Subsequently, [Appellant] filed a PCRA petition based
        on this new evidence. On April 15, 2011, Judge Ann Osborne
        held a PCRA evidentiary hearing where she heard testimony from
        both Mr. Powell and [Appellant]. On December 19, 2011[,] the
        petition was dismissed after the court determined the newly
        discovered evidence would not affect the trial verdict. In fact,
        Judge Osborne noted, “The testimony of both [Appellant] and
        Powell completely lacked credibility.”      This decision was
        appealed.

               On November 9, 2012, the decision of Judge Osborne was
        affirmed by the Superior Court in a [m]emorandum [o]pinion.
        The Superior Court held that the PCRA petition did not warrant
        relief, despite the acknowledged discrepancies in the initial
        physical descriptions of the perpetrator in one of the robberies
        and [Appellant’s] physical description. In a petition for [f]ederal
        [h]abeas [corpus] relief, [Appellant] also claimed the
        Commonwealth perpetrated a fraud on the court based on a
        comment the prosecutor made during closing arguments
        regarding the amount of evidence used during trial to convict
        [Appellant], including the grainy videotape. On June 17, 2013,
        Federal Judge Dalzell entered an [o]rder, which rejected
        [Appellant’s] assertions of fraud and denied the request for
        habeas relief.

PCRA Court Pa.R.A.P. 1925(a) Opinion, filed June 30, 2016, pp. 1-4 (internal

record citations omitted).

        Appellant filed the instant PCRA petition, his third, on September 19,

2013.    Appellant filed an amended petition on December 12, 2014, and a

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motion for discovery on February 2, 2015. On October 13, 2015, the PCRA

court ordered the Commonwealth to file an answer to the amended PCRA

petition and motion for discovery within 30 days, which the Commonwealth

accordingly did on November 16, 2015. On November 17, 2015, the PCRA

court dismissed the PCRA petition.1 Appellant filed his notice of appeal on

December 16, 2015.           Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

       Appellant raises the following issue for our review:

       Did the PCRA [c]ourt err and violate Appellant’s Sixth and
       Fourteenth Amendment rights by finding that his PCRA petition
       was untimely and not subject to one or more of the statutory
       exceptions to the one[-]year jurisdictional time bar [where] this
       incorrect ruling precluded the PCRA [c]ourt from granting
       discovery, conducting an evidentiary hearing and/or addressing
       the merits of the petition[?]

Appellant’s Brief, p. 3.

       Our well-settled standard of review for orders denying PCRA relief is

“to determine whether the determination of the PCRA court is supported by

the evidence of record and is free of legal error. The PCRA court’s findings

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



____________________________________________


1
   The PCRA court dockets do not reflect that the PCRA court filed a
Pa.R.Crim.P. 907 notice of intent to dismiss the PCRA petition without a
hearing. Although a failure to file a Rule 907 notice may afford an appellant
relief at times, because Appellant’s petition is untimely as discussed infra,
we will overlook the PCRA court’s procedural error.



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certified record.”   Commonwealth v. Barndt, 74 A.3d 185, 191-192

(Pa.Super.2013) (internal quotations and citations omitted).

      We must first consider the timeliness of the petition, as a petition’s

timeliness implicates the jurisdiction of both this Court and the PCRA court.

Commonwealth v. Williams, 35 A.3d 44, 52 (Pa.Super.2011), appeal

denied, 50 A.3d 121 (Pa.2012) (“Pennsylvania law makes clear that no court

has jurisdiction to hear an untimely PCRA petition”). “It is undisputed that a

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

sentence becomes final.”    Commonwealth v. Hernandez, 79 A.3d 649,

651 (Pa.Super.2013); 42 Pa.C.S. § 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 a petition.” Hernandez, 79 A.3d at 651 (citing

Commonwealth v. Murray, 753 A.2d 201, 203 (Pa.2000)). A judgment of

sentence “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. § 9545(b)(3).    However, a facially untimely petition

may be received where any of the PCRA’s three limited exceptions to the

time for filing the petition are met. Hernandez, 79 A.3d at 651 (footnote

omitted). These exceptions include:

      (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;


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      (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. § 9545(b)(1)(i)-(iii).    As our Supreme Court has repeatedly

stated, the petitioner maintains the burden of pleading and proving that one

of these exceptions applies.      Commonwealth v. Abu-Jamal, 941 A.2d

1263, 1268 (Pa.2008), cert. denied, 555 U.S. 916 (2008). Further,

      [a] petition invoking one of these exceptions must be filed within
      sixty days of the date the claim could first have been presented.
      42 Pa.C.S. § 9545(b)(2).        In order to be entitled to the
      exceptions to the PCRA’s one-year filing deadline, the petitioner
      must plead and prove specific facts that demonstrate his claim
      was raised within the sixty-day time frame under section
      9545(b)(2).

Hernandez, 79 A.3d at 651-652 (internal quotations omitted). Further, in

the absence of one of the enumerated exceptions, a PCRA court lacks

authority to extend the PCRA’s filing period. Commonwealth v. Fahy, 737

A.2d 214, 222 (Pa.1999); see also Commonwealth v. Watts, 23 A.3d

980, 983 (Pa.2011) (“[To] accord finality to the collateral review process[,]”

the PCRA “confers no authority upon [appellate courts] to fashion ad hoc

equitable exceptions to the PCRA timebar”).

      Finally, a heightened standard applies to a second or subsequent PCRA

petition   to   avoid   “serial     requests   for   post-conviction   relief.”

Commonwealth v. Jette, 23 A.3d 1032, 1043 (Pa.2011).            “A second or


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subsequent request for relief under the PCRA will not be entertained unless

the petitioner presents a strong prima facie showing that a miscarriage of

justice may have occurred.” Commonwealth v. Hawkins, 953 A.2d 1248,

1251 (Pa.2006).          Additionally, in a second or subsequent post-conviction

proceeding,     “all    issues   are   waived    except   those    which   implicate   a

defendant’s innocence or which raise the possibility that the proceedings

resulting in conviction were so unfair that a miscarriage of justice which no

civilized society can tolerate occurred”. Commonwealth v. Williams, 660

A.2d 614, 618 (Pa.Super.1995).

       Here, the trial court sentenced Appellant on May 2, 2000. This Court

affirmed Appellant’s judgment of sentence on August 29, 2001.                Appellant

did not file a petition for allocatur to our Supreme Court.             Therefore, his

judgment of sentence became final on September 28, 2001. See 42 Pa.C.S.

§ 9545(b)(3).          Accordingly, Appellant had until September 30, 20022 to

timely file a PCRA petition.

       Appellant filed the instant PCRA petition, his third, on September 19,

2013, nearly twelve years after his judgment of sentence became final.

Accordingly, Appellant’s petition is facially untimely.           Thus, he must plead



____________________________________________


2
  The one-year anniversary of the finalization of Appellant’s judgment of
sentence fell on Saturday, September 28, 2002. Accordingly, Appellant had
until Monday, September 30, 2002 to timely file a PCRA petition. See 1
Pa.C.S. 1908.



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and prove that his petition falls under one of the Section 9545 exceptions set

forth in the PCRA. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii).

       To overcome the PCRA’s time bar, Appellant argues that new evidence

exists that entitles him to a time-bar exception pursuant to 42 Pa.C.S. §

9545(b)(1)(ii).     Appellant alleges that the discovery that witness Jackie

Hayes had spoken with police after the crimes and also with a composite

sketch artist, and that police had told a second witness, Lakeisha Robinson,

that they “had their man” before her identification of Appellant, amounted to

the discovery of new evidence and a Brady violation3 by police that warrants

PCRA relief. See Appellant’s Brief, pp. 10-25. We do not agree.

       This Court has explained the newly discovered evidence exception as

follows:

       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.”


____________________________________________


3
  Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)
(holding that a due process violation occurs when the state suppresses or
fails to disclose material exculpatory evidence).




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Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super.2015) (internal

citations omitted). Further,

       [a]fter-discovered evidence is the basis for a new trial when it:
       1) has been discovered after the trial and could not have been
       obtained at or prior to the conclusion of trial by the exercise of
       reasonable diligence; 2) is not merely corroborative or
       cumulative; 3) will not be used solely for impeaching the
       credibility of a witness; and 4) is of such nature and character
       that a new verdict will likely result if a new trial is granted.
       Further, the proposed new evidence must be producible and
       admissible.

Commonwealth v. Chamberlain, 30 A.3d 381, 414 (Pa.2011) (internal

quotations and citations omitted).

       Appellant maintains he is entitled to the section 9545(b)(1)(ii) PCRA

timeliness exception because he filed his PCRA petition within 60 days of

receiving an investigative report alleging that Hayes gave a statement to

police and spoke with a sketch artist.4 However, both Hayes and Robinson

testified at Appellant’s pre-trial hearing and trial, and both were subject to

cross-examination by Appellant. Appellant’s petition does not explain, as it

must, why he waited 15 years to contact these witnesses and question them




____________________________________________


4
  Appellant further alleges he filed an amended PCRA petition with 60 days
of receiving the investigator’s report containing Ms. Robinson’s allegation
that police told her they had their man prior to her identification of
Appellant.




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further.5 Failing to speak with known, available witnesses for 15 years does

not amount to reasonable diligence on Appellant’s part.6

       Further, both witnesses’ allegations would be merely cumulative of

Appellant’s cross-examination at trial and/or could be used merely to

impeach the witnesses.

       For these reasons, Appellant’s claims remain time-barred and the trial

court did not err in dismissing Appellant’s PCRA petition as untimely.

Accordingly, we affirm the PCRA court’s order.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2016




____________________________________________


5
  We note that Appellant prosecuted two other PCRA petitions during the
intervening period without contacting these witnesses or raising these
claims.
6
   Likewise, while Brady violations may fall within the governmental
interference exception of section 9545(b)(1)(i), Appellant’s claimed Brady
violations did not occasion his interview of the witnesses and, even if true,
do not explain his lack of diligence in contacting these witnesses.



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