J-S37014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 RONALD G. JOHNSON                        :
                                          :
                    Appellant             :   No. 1334 EDA 2018

                 Appeal from the PCRA Order April 13, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0535501-1990


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

MEMORANDUM BY BOWES, J.:                       FILED SEPTEMBER 10, 2019

      Ronald G. Johnson appeals from the order denying as untimely his

second petition filed pursuant to the Post Conviction Relief Act (“PCRA”). Upon

careful review, we affirm.

      In its 1993 opinion, the trial court summarized the facts as follows:

      The testimony at trial established that the victim, Joseph Goldsby,
      died on March 1, 1990 of a gunshot wound to the chest. The
      victim was at the location of 2100 Westmoreland Street selling
      drugs [from his vehicle].       [Appellant] approached with an
      unknown male and female and engaged the victim in a drug-
      related conversation. The unknown male got into the [victim’s]
      vehicle and after a few minutes gunshots were heard. The
      [victim’s] car moved forward and crashed into a telephone pole.
      [Appellant] aimed a gun into the vehicle and pulled the trigger[,]
      but it misfired. As [Appellant’s] [cohort] exited the vehicle, he
      struggled with the [victim] and yelled at him to “give it up.” The
      [victim] chased after the man for a few steps but collapsed on the
      sidewalk. Appellant and his co-conspirator fled the scene in the
      same direction. Two witnesses to the incident, Darryl Alexander
      and Mark Jackson, testified that they knew [Appellant] and
      detailed his involvement in the murder. Mark Jackson also
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      testified to being approached by [Appellant] several days later and
      told to be careful what you say.

      [Appellant] testified and called as a witness, Richard Duncan, to
      establish an alibi defense. They testified that they were in a car
      getting high and unware of [the victim’s] murder until they were
      told by a man named James Smith, also known as “Seed[.]”

Trial Court Opinion, 10/28/93, at 2-3.

      After a jury trial before the Honorable Eugene Clark, Jr., Appellant was

found guilty of murder in the first degree, criminal conspiracy, and possessing

an instrument of crime. After the jury deadlocked at the penalty hearing, the

trial court sentenced Appellant to life imprisonment without the possibility of

parole.   Appellant filed post-sentence motions, and a direct appeal to this

Court, and his judgment of sentence became final on December 15, 1994,

when our Supreme Court denied his petition for allowance of appeal and he

failed to seek review in the United States Supreme Court. In 1999, Appellant

filed his first PCRA petition, which was dismissed by the Honorable Lynn

Hamlin. This Court affirmed the dismissal on appeal, and our Supreme Court

denied his petition for allowance of appeal in 2003.

      On May 7, 2012, Appellant, acting pro se, filed his second PCRA petition,

which he supplemented on November 25, 2013. Enid Wolfe Harris, Esquire

filed an amended PCRA petition on May 27, 2014, and supplemented it on

September 30, 2015. In the amended petition, Appellant pled that he had

discovered new evidence concerning the victim’s death. He alleged that the

victim, prior to his death, testified against Terrence Poles in a murder case in


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which the victim had been the intended target. Although both the victim and

Gerald Sanders were shot, the victim survived. The victim went on to testify

at Poles’s preliminary hearing, positively identifying him as the shooter. The

charges were held for court, but the victim was murdered before Poles’s case

proceeded to trial. Appellant argued that this evidence suggests that Poles

killed the victim in retaliation for his testimony, and that the Commonwealth

improperly withheld this evidence in violation of Brady v. Maryland, 373 U.S.

83 (1963). The Commonwealth filed a motion to dismiss on August 31, 2015.

      Burton Rose, Esquire entered his appearance on behalf of Appellant, and

the petition was reassigned to the Honorable Lillian Ransom on February 4,

2016. On April 6, 2016, Appellant filed an affidavit from an inmate named

Mark Stukes.    In the affidavit, Mr. Stukes attested that he “witnessed a

conversation between [Appellant] and Terrence Poles,” during which Poles told

Appellant that the victim had testified against him, causing him to receive a

life sentence. See Affidavit, 3/1/16, at 1. “Mr. Poles [then] began to brag

about how he had his homie kill [the victim] for testifying against Mr. Poles.”

Id. at 2. On March 24, 2016, Judge Ransom issued a Pa.R.Crim. 907 notice

of intent to dismiss the PCRA petition as untimely. Appellant filed a response

and the Commonwealth filed an answer to Appellant’s filing.

      On June 2, 2016, the Commonwealth and Appellant’s PCRA counsel

appeared before Judge Ransom for a status conference. The Court indicated

that it had reviewed the affidavit and found that it was not filed within sixty


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days of the date that it could have been filed and that the affidavit contained

inadmissible statements.1          N.T. Status Conference, 6/2/16, at 6, 8-9.

Appellant’s counsel argued that the statements were admissible as a

declaration against penal interest and to prove that a Brady violation

occurred. Id. at 7. Also, counsel explained that while the affidavit was not

filed within sixty days, Appellant properly preserved the issue in his pro se

PCRA within the required time period.            Id. at 9.   The Commonwealth

responded that the affidavit did not contain exculpatory evidence and that it

was not a statement against interest since it was not made to someone “in

authority.”    Id. at 10-11.       Ultimately, Judge Ransom concluded, without

further elaboration, that dismissal was appropriate and that she would issue

a formal dismissal later that same day. Id.

       The next day, Judge Ransom held a hearing in chambers with PCRA

counsel and the prosecutor. N.T. PCRA hearing, 6/3/16, at 1. At this hearing,

Judge Ransom’s law clerk submitted a memorandum outlining the contents of

a redacted letter fragment from an Assistant United States Attorney to a




____________________________________________


1 In its brief, the Commonwealth states that it does not believe that this
affidavit was ever received or reviewed by the PCRA court, based on
statements made at an April 15, 2016 status listing. See Commonwealth’s
brief at 4. As a result, it suggests that a remand for an evidentiary hearing
on this issue may be proper. However, a review of the June 2, 2016 status
conference hearing transcript belies the Commonwealth’s contention.



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United States District Court judge.2 Based on the contents of the letter, Judge

Ransom vacated the dismissal order on June 3, 2016, and continued the case

in order to give Appellant and the Commonwealth time to investigate the

claims made within the letter. Id. at 2, 5-6.

       Appellant filed another amended PCRA petition, addressing this new

evidence surrounding the Jamaican drug cartel, in addition to the Terrence

Poles’s claim, after which the case was repeatedly continued to allow the

defense more time for investigation. On August 12, 2016, the case was briefly

reassigned to the Honorable Kathryn Streeter-Lewis, before being moved

again, this time to the Honorable Sandy L.V. Byrd for disposition.

       On July 26, 2016, Judge Byrd held an evidentiary hearing,3 wherein the

custodian of the letter fragment testified.4     At the hearing, Appellant was

unable to produce any evidence to substantiate the claims made in the letter




____________________________________________


2 The PCRA court found this letter while reviewing pleadings in an unrelated
case. Although missing pages and partially redacted, the United States
Attorney asserted that the victim was murdered by Phillip Warrington and
Kevin Duey, after they were ordered to do so by Lester Coke, a gang leader
in a Jamaican drug cartel. The letter described the murder, including the time,
place, and manner in which it occurred.

3 Although, both parties agreed that the initial Terrence Poles claim was still
active, Appellant did not present any testimony or argument supporting that
claim at this hearing. N.T. PCRA Hearing, 7/26/17, at 9-11.

4 William Rinnick testified that he received the letter as a part of a freedom of
information request in his own case. See Commonwealth’s brief at 12; see
also N.T. PCRA Hearing, 7/26/16, at 18-20.

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and PCRA counsel requested and received a continuance so that both sides

could continue investigating. N.T. PCRA Hearing, 7/26/17, at 29-30.

      On March 9, 2018, PCRA counsel and the prosecutor appeared before

Judge Byrd for a status conference.         PCRA counsel indicated that his

investigation had been unsuccessful. Although he obtained the name of the

police officer who made the statements contained in the letter, he was unable

to locate him.     N.T. PCRA Hearing, 3/9/18 at 5.     Judge Byrd asked PCRA

counsel if he had withdrawn the first PCRA claim related to Terrence Poles,

and he responded that he had not. Based on PCRA counsel’s representations,

the Commonwealth moved for dismissal of the petition due to a lack of

evidence. Id. at 6. Judge Byrd agreed, finding that both claims were without

merit and issuing a Rule 907 notice of intent to dismiss the petition. Id. at

15.   The PCRA petition was dismissed by order, and this timely appeal

followed.

      Appellant presents the following issues for our review:

      I.    Should this court order that [Appellant] be granted a new
            trial in the interests of justice because there is a reasonable
            likelihood that this homicide was committed by persons
            other than the Appellant?

                 A. The Commonwealth suppressed information
                    that the deceased was a key witness against
                    Terrance Poles, who has made admissions to
                    this homicide to the Appellant and Mark Stukes.

                 B. The     Commonwealth       suppressed     law-
                    enforcement information that the deceased may
                    have been slain by agents of a Jamaican drug
                    cartel.

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See Appellant’s brief at 3.

         Our   standard   of   review   examines   “whether   the   PCRA   court’s

determination is supported by the evidence of record and free of legal error.

We grant great deference to the PCRA court’s findings, and we will not disturb

those findings unless they are unsupported by the certified record.”

Commonwealth v. Holt, 175 A.3d 1014, 1017 (Pa.Super. 2017) (citation

omitted).

         Under the PCRA, any petition “including a second or subsequent petition,

shall be filed within one year of the date the judgment [of sentence] becomes

final[.]” 42 Pa.C.S. § 9545(b)(1). 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.” Id. § 9545(b)(3). The PCRA’s

timeliness requirements are jurisdictional in nature, and a court may not

address the merits of the issues raised if the PCRA petition was not timely

filed.    Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017) (citation

omitted).

         The time bar can “only be overcome by satisfaction of one of the three

statutory exceptions codified at 42 Pa.C.S. § 9545(b)(1)(i)–(iii).” Id. The

three narrow exceptions to the one-year time bar are as follows: “(1)

interference by government officials in the presentation of the claim; (2)

newly-discovered facts; and (3) an after-recognized constitutional right.”


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Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa.Super. 2012); see

also 42 Pa.C.S. § 9545(b)(1)(i-iii).           Additionally, a PCRA petitioner must

present his claimed exception within sixty days of the date the claim first could

have been presented.5 42 Pa.C.S. § 9545(b)(2).

       The timeliness exception set forth at § 9545(b)(1)(ii) has two

components, which must be alleged and proven as an initial jurisdictional

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

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. See Commonwealth v. Bennett, 930 A.2d

1264, 1272 (Pa. 2007).          Due diligence demands that the petitioner take

reasonable steps to protect his own interests and explain why he could not

have learned the new facts earlier with the exercise of due diligence.

Commonwealth v. Monaco, 996 A2d 1076, 1080 (Pa.Super. 2010); see

also Commonwealth v. Carr, 768 A.2d 1164, 1168 (Pa.Super. 2001).

       Once it is established that the PCRA court has jurisdiction over the claim,

the petitioner can present a substantive after-discovered evidence claim. See

42 Pa.C.S. § 9543(a)(2)(vi). In order to obtain relief on a substantive after-



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5 As of December 24, 2018, 42 Pa.C.S. § 9545(b)(2) now provides that any
PCRA petition invoking a timeliness exception must be filed within one year of
the date the claim first could have been presented. However, this amendment
does not apply to Appellant’s case, which arose before the effective date of
the amendment.

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discovered evidence claim, a petitioner must demonstrate that:           (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.    Commonwealth v. Washington,

927 A.2d 586 (Pa. 2007).      The substantive merits-based analysis is more

demanding that the analysis required by the “new facts” exception to establish

jurisdiction. See Bennett, supra at 395-96.

      Appellant acknowledges that his petition was untimely, but asserts that

he has satisfied the timeliness exception for newly-discovered facts.         He

argues that he should be permitted to proceed to prove his after-discovered

evidence claim and that he is entitled to a new trial in the interests of justice

because he has submitted reliable information that suggests that he is not the

individual responsible for the murder in this case. See Appellant’s brief at 8.

The PCRA court disagreed, finding that no evidence had been presented to it

or to Judge Ransom on which relief could be granted or that would likely

compel a different verdict if a new trial was granted. See PCRA Court Opinion,

9/21/18, at 7, 9. We agree.

      Judge Byrd implicitly found that the newly-discovered fact requirements

necessary to establish jurisdiction were met on both issues.        See Order,

4/13/18, at unnumbered 1 (finding that “the issues raised in the above-

captioned petition are without merit”).      The parties do not dispute that


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finding.6 However, despite multiple years of PCRA proceedings, Appellant has

not presented reliable or admissible evidence suggesting that another person

was likely responsible for the death of the victim in this case.            See

Commonwealth v. Smith, 540 A.2d 246, 263 (Pa. 1988) (finding that after-

discovered evidence must be “producible and admissible” in order to be

grounds for a new trial).        More specifically, while Appellant submitted an

affidavit from Mark Stukes, he has never provided any testimony or any other

type of evidence that would be admissible should a new trial be granted. Even

after Appellant was afforded an evidentiary hearing, he still failed to put forth

any testimony or evidence that could be used in his favor should a new trial

be granted. It was Appellant’s burden to offer evidence to support his claim,

and he had many years to do so. Thus, we discern no abuse of discretion in

the PCRA court’s denial of this claim for relief.

       Appellant’s second issue fails for the same reason. Appellant pled the

newly-discovered letter fragment to prove that members of a Jamaican drug

cartel killed the victim within sixty days of when it was discovered. Therefore,

he has a claim that meets the newly-discovered fact threshold. However, by

his own attorney’s admission, he has not produced any admissible evidence

to support his position. N.T. PCRA Hearing, 3/9/18 at 5. As such, Appellant



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6 From our review of the record, we conclude that Appellant timely pled his
newly-discovered facts for purposes of the timeliness exception in 42 Pa.C.S.
§ 9542(b)(1)(ii) and the PCRA court had jurisdiction to reach the merits.

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has failed to meet his substantive after-discovered evidence burden of proof

and the PCRA court did not err when it dismissed this claim. Accordingly, we

affirm the PCRA court’s order dismissing the PCRA petition.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/10/19




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