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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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                             :
                                               :
                       Appellant               :   No. 554 EDA 2018

                 Appeal from the PCRA Order February 20, 2018
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0410491-2000


BEFORE:      OTT, J., NICHOLS, J., and STRASSBURGER, J.

MEMORANDUM BY OTT, J.:                              FILED FEBRUARY 21, 2019

        Ira A. Johnson appeals from the order entered in the Philadelphia County

Court of Common Pleas, dated February 20, 2018, dismissing his fourth

petition filed under the Post Conviction Relief Act (“PCRA”). See 42 Pa.C.S.

§§ 9541-9546.1 Johnson seeks relief from the judgment of sentence imposed

on July 12, 2001, following his convictions of first-degree murder, robbery,


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   Retired Senior Judge assigned to the Superior Court.

1  We note that, despite requesting and being granted three extensions of
time, the Commonwealth filed a tardy brief in this matter in addition to an
application for a fourth extension of time to file a brief. In a per curiam order
entered on August 31, 2018, this Court stated the third extension of time
would be the Commonwealth’s final extension.              Accordingly, since the
Commonwealth did not adhere to this ruling, we will deny its application for a
fourth extension of time and will not accept its brief for our review.
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and possession of an instrument of crime (“PIC”).2          On appeal, Johnson

contends the PCRA court erred in dismissing his petition because the court

failed to provide an adequate rationale for finding a recanting witness non-

credible. Based on the following, we affirm.

       The PCRA court set forth the underlying facts as follows:

             [Johnson] was convicted in the shooting death of Stepfon
       Copper, inside the deceased’s apartment at 917 North 16th Street,
       Philadelphia on February 18, 2000.

             At trial, Darrell Williams testified that on February 18, 2000,
       when he was 13 years of age, he, [Johnson,] and the deceased,
       were sitting inside the deceased’s third floor apartment playing
       music and watching television. [Johnson] was playing with a .25
       caliber handgun.

             After about one hour, [Johnson] asked the deceased if he
       had an audiotape of a group called The Lox. The deceased said
       that it was in his automobile which was parked outside the
       building. The deceased gave Mr. Williams the keys to his car and
       asked him to get the tape. Mr. Williams testified that he went
       downstairs and retrieved the tape from the car. As he was about
       to reenter the building, he heard what sounded like a gunshot
       coming from Mr. Copper’s apartment. Mr. Williams proceeded into
       the building and as he approached the stairs to the third floor, he
       heard a second shot. He left the building and ran to a location
       across the street. He watched the building for more than five
       minutes from this vantage point. He saw [Johnson] exit the
       building with his hands in his pockets and looking left and right.
       Mr. Williams later gave a statement to police. He gave the tape
       and the car keys to the police.

             Mr. Williams testified that during the time he was playing
       with the gun, [Johnson] told the deceased, “Stephon, you burnt
       me for that gun, it’s cool though, it’s cool.” Mr. Williams testified
       that [Johnson] and the deceased did not argue in his presence.


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2   18 Pa.C.S. 2502, 3701, and 907, respectively.

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      Mr. Williams testified that [Johnson] never pointed the gun at the
      deceased in his presence.

            Joyce Robinson testified that she lived in a second floor
      apartment in the building. On February 18, 2000 at about 7:30
      p.m., she heard a thumping noise coming from the hall. She
      opened her apartment door and saw [Johnson] at the door to the
      deceased’s apartment.

            Matrice Copper testified that she was the deceased’s sister
      and shared the apartment with him. On February 18, 2000, at
      about 6:30 p.m. she was in her automobile when she observed
      [Johnson], the deceased and Mr. Williams pull up in another
      automobile. She returned to the building around 9 p.m. where
      she learned of the shooting. She went to the Homicide Division
      and returned home at approximately 2:30 the following morning.
      She discovered that approximately $300 which she had seen the
      deceased place under the mattress earlier on December 18 was
      missing.

PCRA Court Opinion, 3/29/2018, at 2-4 (record citations omitted).

      Johnson was arrested and charged with numerous offenses related to

the shooting. On July 12, 2001, at the conclusion of a bench trial, the trial

court found Johnson guilty of first-degree murder, robbery, and PIC. That

same day, the court sentenced Johnson to a term of life imprisonment for the

murder conviction, a concurrent term of ten to 20 years’ incarceration for the

robbery conviction, and a concurrent term of two and one-half to five years’

imprisonment for the PIC offense. On August 19, 2003, a panel of this Court

affirmed his judgment of sentence, and the Pennsylvania Supreme Court

denied his petition for allowance of appeal on March 2, 2004.              See

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

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


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       Since then, Johnson has filed three petitions under the PCRA.3 None of

these petitions has provided Johnson any relief. Johnson filed the present pro

se PCRA petition, his fourth, on September 16, 2015, and an amended pro se

petition addendum on March 25, 2016. In his petition, Johnson alleged an

eyewitness, Williams, had recanted on the testimony he provided at Johnson’s

trial and now avers that he was told by another individual to provide

authorities with a recitation of events that implicated Johnson.       Johnson

asserted he was entitled to a new trial based on this new recantation

evidence.4


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3 See PCRA Court Opinion, 3/29/2018, at 2; see also Commonwealth v.
Johnson, 927 A.2d 652 (Pa. Super. 2006) (unpublished memorandum),
appeal denied, 929 A.2d 1161 (Pa. 2007); Commonwealth v. Johnson, 996
A.2d 546 (Pa. Super. 2010) (unpublished memorandum), appeal denied, 9
A.3d 627 (Pa. 2010); Commonwealth v. Johnson, 116 A.3d 685 (Pa. Super.
2014) (unpublished memorandum), appeal denied, 125 A.3d 776 (Pa. 2015).

4 Johnson attached an unsworn affidavit from Williams, dated February 23,
2015. In the affidavit, Williams averred

       When [Johnson] was found guilty I felt like I did the right thing
       [b]ut I was just a young naïve kid who should have known better
       but was too upset by what had happened to think. I let the adults
       tell me what to do and tell me to lie. Two things I’ve regreted
       [sic] for a very long time but now wish to correct. I did not
       personally see Ira Johnson with a gun on the night of Stephons
       [sic] death I never personally heard any mention of Stephon [sic]
       burning [Johnson] for a gun. I was not sent to the car … to get a
       tape. I didn’t hear any gunshots and I never saw [Johnson]
       leaving the building. I was told to say these things because it was
       believed that the police would believe me over the adult who told
       them to me.

Pro Se PCRA Petition, 9/16/2015, Affidavit at unnumbered 2.

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        After determining the petition was untimely, the PCRA court notified

Johnson of its intent to dismiss the petition without a hearing on October 18,

2016. See Pa.R.Crim.P. 907. For reasons unexplained on the docket, the

PCRA court decided to continue the matter for the appointment of new

counsel, which occurred on February 15, 2017. Counsel filed an amended

petition on March 18, 2017. On January 12, 2018, an evidentiary hearing was

held.

               At the evidentiary hearing, Darrell Williams testified that he
        had not seen [Johnson] in the deceased’s residence or in the
        vicinity of the residence at the time of the shooting. He stated
        that the deceased’s cousin, Terence, and Terence’s friend, told
        him (Darrell Williams) to tell police that [Johnson] had been in the
        area. Mr. Williams testified that he complied with their request
        because he was 13 years old and was pressured by Terence and
        his friend.

PCRA Court Opinion, 3/29/2018, at 5 (record citation omitted).

        On February 20, 2018, after considering the hearing testimony, the

PCRA court dismissed Johnson’s petition for lack of merit. This timely appeal

followed.5

        In his sole issue on appeal, Johnson contends:

               The PCRA court erred in dismissing [Johnson]’s PCRA
        Petition because the PCRA court failed to sufficiently articulate
        reasons for dismissing [Johnson]’s PCRA [petition] including
        reasons for concluding that eyewitness, Darryl Williams, was not
        credible especially because Williams was not a new witness that
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5  On February 21, 2018, the PCRA court ordered Johnson to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Johnson filed a concise statement on February 25, 2018. The PCRA court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on March 29, 2018.

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      suddenly materialized and there were explained inconsistencies at
      trial and problems with the police investigation which Williams
      articulated at the evidentiary hearing.

Johnson’s Brief at 7.    Moreover, he states:     “The PCRA court abused its

discretion because the court sat as a waiver judge at trial and had a vested

interested [sic] in seeing the conviction stand.       There was an effective

predisposition against the reliability of Mr. Williams.” Id. at 10.

      Our standard of review regarding the dismissal of a PCRA petition is as

follows:

      In reviewing the denial of PCRA relief, we examine whether the
      PCRA court’s determinations are supported by the record and are
      free of legal error. The PCRA court’s credibility determinations,
      when supported by the record, are binding on this Court; however,
      we apply a de novo standard of review to the PCRA court’s legal
      conclusions.

Commonwealth v. Goodmond, 190 A.3d 1197, 1200 (Pa. Super. 2018),

quoting Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013).

      “Crucial to the determination of any PCRA appeal is the timeliness of the

underlying petition. Thus, we must first determine whether the instant PCRA

petition was timely filed.” Commonwealth v. Smith, 35 A.3d 766, 768 (Pa.

Super. 2011), appeal denied, 53 A.3d 757 (Pa. 2012).

      The PCRA timeliness requirement … is mandatory and
      jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
      1035, 1038 (Pa. Super. 2007), appeal denied, 597 Pa. 715, 951
      A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa. 1,
      753 A.2d 201, 203 (2000)). The court cannot ignore a petition’s
      untimeliness and reach the merits of the petition. Id.




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Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied,

134 S. Ct. 2695 (U.S. 2014). A PCRA petition must be filed within one year

of the date the underlying judgment becomes final.            See 42 Pa.C.S. §

9545(b)(1). A judgment is deemed 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. § 9545(b)(3).       Here, Johnson’s judgment of sentence

became final on May 31, 2004, 90 days after the Pennsylvania Supreme Court

denied his petition for allowance of appeal and the time for filing a petition for

writ of certiorari before the United States Supreme Court expired.             See

U.S.Sup.Ct. Rule 13.     Accordingly the present petition, filed in 2015, is

patently untimely.

      Nevertheless, an untimely PCRA petition may be considered if one of the

following three exceptions applies:

      (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.




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42 Pa.C.S. § 9545(b)(1)(i-iii). Additionally, all of the time-bar exceptions are

subject to a separate deadline.

      The statutory exceptions to the timeliness requirements of the
      PCRA are also subject to a separate time limitation and must be
      filed within sixty (60) days of the time the claim could first have
      been presented. See 42 Pa.C.S. § 9545(b)(2). The sixty (60)
      day time limit . . . runs from the date the petitioner first learned
      of the alleged after discovered facts. A petitioner must explain
      when he first learned of the facts underlying his PCRA claims and
      show that he brought his claim within sixty (60) days thereafter.

Commonwealth v. Williams, 35 A.3d 44, 53 (Pa. Super. 2011) (some

citations omitted), appeal denied, 50 A.3d 121 (Pa. 2012).        Our Supreme

Court has held that section 9545(b)(2) also requires a showing of due

diligence insofar that a petitioner must file the petition within 60 days of when

the claim first could have been presented. Commonwealth v. Marshall, 947

A.2d 714, 719-720 (Pa. 2008).

      Johnson contends he is entitled to review pursuant to the newly

discovered fact exception in Section 9545(b)(1)(ii), based upon Williams’

recanted testimony. The newly-discovered fact 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
      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.




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Commonwealth. v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (internal

quotation marks and citations omitted; emphasis removed).6

       As indicated above, Johnson attached an unsworn affidavit from

Williams, dated February 23, 2015, to his pro se petition. On March 4, 2015,

prior PCRA counsel notified Johnson that he received the affidavit from

Williams.7 Johnson then filed the present fourth petition on September 30,

2015, after the Pennsylvania Supreme Court denied his petition for allowance

of appeal on August 15, 2015.8 We recognize that a PCRA petitioner cannot

file a new PCRA petition when a prior petition is still under review on appeal.

Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (“[W]hen an

appellant’s PCRA appeal is pending before a court, a subsequent PCRA petition

cannot be filed until the resolution of review of the pending PCRA petition by

the highest state court in which review is sought, or upon the expiration of

the time for seeking such review.”). Accordingly, we conclude Johnson did file


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6  “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.” Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015)
(internal citations omitted), appeal denied, 125 A.3d 1197 (Pa. 2015).

7 Johnson indicated he received the letter from counsel on March 9, 2015.
See Pro Se PCRA Petition, 9/16/2015, at 4.

8  Johnson alleged, “Such facts could not have been discovered through the
exercise of due diligence, since the witness identified [Johnson] at the
preliminary hearing and trial unequivocally, for[e]closing all possibilities that
[Johnson] could have persuaded him to change his statement prior to the
close of trial.” Pro Se PCRA Petition, 9/16/2015, at 3.

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his petition within 60 days of the date the claim first could have been

presented.   See 42 Pa.C.S. § 9545(b)(2);       Lark, 746 A.2d at 588 (“The

subsequent petition must also be filed within sixty days of the date of the

order which finally resolves the previous PCRA petition, because this is the

first ‘date the claim could have been presented.’”).

      Once jurisdiction is established, a defendant can present a substantive

after-discovered-evidence claim that is cognizable pursuant to 42 Pa.C.S. §

9543(a)(2)(vi).

      [T]o prevail on an after-discovered evidence claim for relief under
      subsection 9543(a)(2)(vi), a petitioner must prove that (1) the
      exculpatory evidence has been discovered after trial and 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.

Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 2017).

      Moreover, we note:

      [The Pennsylvania] Supreme Court has summarized appellate
      consideration of a claim involving recanted testimony as follows:

         The well-established rule is that an appellate court may not
         interfere with the denial or granting of a new trial where the
         sole ground is the alleged recantation of state witnesses
         unless there has been a clear abuse of discretion....
         Recanting testimony is exceedingly unreliable, and it is the
         duty of the court to deny a new trial where it is not satisfied
         that such testimony is true. There is no less reliable form
         of proof, especially when it involves an admission of perjury.

      Commonwealth v. Mosteller, 446 Pa. 83, 88-89, 284 A.2d 786,
      788 (1971) (quotations and citations omitted). A prerequisite to
      such relief is that “the evidence upon which the relief is sought
      must be credible to the trial court.” Commonwealth v. Lee, 478

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       Pa. 70, 74, 385 A.2d 1317, 1319 (1978); see also
       Commonwealth v. Nelson, 484 Pa. 11, 14, 398 A.2d 636, 637
       (1979) (“It is up to the trial court to judge the credibility of the
       recantation.”); Commonwealth v. Fernandez, 232 Pa. Super.
       19, 332 A.2d 819, 821 (Pa. Super. 1974) (explaining that
       “credibility is the key when a new trial is sought on the basis of
       recanted testimony”). This is so because the PCRA court “had
       ample opportunity to observe [the victim’s] manner and
       demeanor during a full evidentiary hearing.” Commonwealth v.
       Gaddy, 492 Pa. 434, 438, 424 A.2d 1268, 1270 (1981); see also
       Commonwealth v. Simpson, 302 Pa. Super. 287, 448 A.2d 640,
       642 (Pa. Super. 1982) (explaining that “the hearing judge was in
       a much better position than we are to evaluate the demeanor and
       credibility of the witnesses”); Commonwealth v. Bernstein, 309
       Pa. Super. 573, 455 A.2d 1232, 1234 (Pa. Super.
       1983)(remanding case for trial court’s determination of credibility
       of recantation testimony).

Commonwealth v. Loner, 836 A.2d 125, 135 (Pa. Super. 2003), appeal

denied, 852 A.2d 311 (Pa. 2004).9

       Here, the PCRA court found the following:

             This court heard the testimony and observed the demeanor
       of Mr. Williams both at the evidentiary hearing and at trial. Mr.
       Williams waited some 15 years before coming forward with his
       new story. Mr. Williams reversed his previous testimony and in
       effect admitted lying before this court at trial and also to the
       police. Accordingly, this court found that Mr. Williams’ testimony
       lacked credibility.

             In order to merit a new trial, new evidence must satisfy two
       tests. The new evidence must be exculpatory and the court must
       be satisfied that it would have changed the result at trial. Post
       Conviction Relief Act, 42 Pa.C.S. Section 9543(a)(2)([vi]). Since
       the recanted testimony of Darrell Williams lacked credibility, it


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9  See also Commonwealth v. McCracken, 659 A.2d 541, 545 (Pa. 1998)
(“recantation testimony is one of the least reliable forms of [evidence],
particularly when it constitutes an admission of perjury”); Commonwealth
v. D'Amato, 856 A.2d 806, 825 (Pa. 2004) (same).

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          would not have changed the result at trial. Accordingly, the PCRA
          Petition was properly dismissed as lacking merit.

PCRA Court Opinion, 3/29/2018, at 6-7.

          We agree with the PCRA court’s conclusion for several reasons. First,

Johnson provides no legal authority to support his claim that the PCRA court

failed to sufficiently articulate reasons for dismissing his petition, including

reasons for concluding that Williams was not credible. Second, the court sat

as the fact-finder at Johnson’s 2001 trial, observing Williams testify at that

time, in addition to witnessing his manner and demeanor with regard to his

recantation testimony at the January 12, 2018, evidentiary hearing. We are

mindful that credibility determinations rest within the PCRA court’s sound

discretion. See Loner, supra. The court provided a cogent, albeit concise,

explanation as to why it did not find Williams’ recantation testimony to be

credible.     We are bound by this determination.       See Goodman, supra.

Therefore, we conclude the PCRA court’s assessment reveals no abuse of

discretion. Accordingly, we affirm the order of the PCRA court denying PCRA

relief.

          Order affirmed. Commonwealth’s application for a fourth extension of

time to file briefs denied.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/21/19




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