J-S74015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
            v.                        :
                                      :
                                      :
ANTHONY JOHNSON                       :
                                      :
                  Appellant           :   No. 3443 EDA 2016

              Appeal from the PCRA Order October 26, 2016
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0203601-2001


BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.

MEMORANDUM BY BOWES, J.:                        FILED DECEMBER 29, 2017

     Anthony Johnson appeals from the October 26, 2016 order denying

him PCRA relief. We affirm.

     On August 17, 2001, a jury convicted Appellant of rape, involuntary

deviate sexual intercourse, robbery, aggravated assault, and aggravated

indecent assault. The convictions were based upon the following events. On

the evening of November 6, 2000, victim A.M. exited the trolley in

Philadelphia after work and began walking home. Appellant approached her

on Windsor Avenue, placed his hands over her mouth, and dragged her into

an alley. Appellant demanded money, and became agitated when the victim

said that she had none.

     Appellant searched a gym bag that A.M. was carrying, stole her cell

phone, and pushed her further into the alley.    When the victim screamed,

Appellant beat her until she was nearly unconscious.        Appellant then
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penetrated A.M.’s vagina and anus with his penis, and inserted his penis into

her mouth and ejaculated. After Appellant fled, the victim spat the semen

from her mouth into a shirt from her gym bag. The victim went home, and

her husband immediately took her to the hospital, where the shirt with the

semen was given to police. Police were informed that A.M.’s assailant had

taken her cell phone, and they began to monitor its use. The day after the

crime, the phone was used twice to contact Franklin Harris, who told police

that Appellant had called him from the phone in question.

       Harris took the police to Appellant, who insisted that he borrowed the

cell phone from Robert Green while they were riding a trolley.          Appellant

agreed to have blood drawn for DNA testing. Police tracked down Mr. Green

and ascertained that he was incarcerated on the day that Appellant

purportedly borrowed A.M.’s cell phone from Mr. Green.          Appellant’s DNA

matched the DNA from the semen found on the victim’s shirt.

       After the jury convicted Appellant, he was sentenced on December 14,

2001, to twenty-five to fifty years imprisonment.       Appellant’s first appeal

was dismissed due to counsel’s failure to file a brief, but his appellate rights

were reinstated pursuant to a timely PCRA petition.1 On August 26, 2004,
____________________________________________


1
  Since this first petition resulted in reinstatement of Appellant’s right to file
a direct appeal, it is not considered a PCRA petition. Commonwealth v.
Turner, 73 A.3d 1283, 1286 (Pa.Super. 2013) (“when a PCRA petitioner's
direct appeal rights are reinstated nunc pro tunc in his first PCRA petition, a
subsequent PCRA petition will be considered a first PCRA petition for
timeliness purposes”).



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we   affirmed   Appellant’s   judgment      of   sentence,   Commonwealth   v.

Johnson, 860 A.2d 1129 (Pa.Super. 2004) (unpublished memorandum),

and our Supreme Court denied allowance of appeal on March 31, 2005,

Commonwealth v. Johnson, 871 A.2d 189 (Pa. 2005). Appellant filed a

timely pro se PCRA petition on May 2, 2005, counsel was appointed, and the

petition was denied. Appellant did not file an appeal from the denial of his

first request for post-conviction relief.

      Appellant filed his second PCRA petition on January 12, 2009, and that

request for relief was dismissed as untimely filed. While no appeal was filed

from dismissal of that petition, Appellant filed a third request for post-

conviction relief on September 16, 2010.            Counsel was appointed and

thereafter moved to withdraw.       Said request was granted, and relief was

denied. Appellant filed his fourth request for PCRA relief on July 10, 2014.

That petition was dismissed as untimely, and, on appeal, we affirmed.

Commonwealth v. Johnson, 131 A.3d 81 (Pa.Super. 2015) (unpublished

memorandum).        Therein, we confirmed that the September 16, 2010

petition was untimely, ruled that Appellant’s judgment of sentence became

final for purposes of the PCRA on June 29, 2005, and noted that he until

June 29, 2006, to file a timely petition.

      The present PCRA petition was filed on May 23, 2016, and it was

dismissed as untimely filed. This appeal followed. Appellant presents these

claims on appeal:




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      [1.] Did or did not, the prosecutor commit a Brady violation by
      suppressing exculpatory facts of material evidence that related
      directly to the overall credibility of his key witness, that was
      critical to a determination of petitioner[’]s guilt or innocence, a
      violation of the Brady strictures as cited by the United States
      Supreme Court in Brady v. Maryland?

      [2.] Did or did not, the prosecutor commit a Brady violation by
      suppressing exculpatory facts of material evidence that related
      directly to the overall credibility of his key witness, that was
      critical to a determination of petitioner[’]s guilt or innocence, a
      violation of the Brady strictures as cited by the United States
      Supreme Court in Brady v. Maryland?

      [3.] Was or was not, petitioner deprived of his sixth amendment
      right by trial counsel's failure to investigate and obtain forensic
      and identification test results, of material evidence that could
      have exonerated petitioner before trial, constitute defective
      representation?

      [4.] Was or was not, petitioner deprived of his sixth amendment
      right by trial counsel's failure to request forensic DNA testing of
      material evidence, that could have exonerated petitioner,
      constitute defective represe[n]tation?

      [5.] Was or was not, petitioner deprived of his sixth amendment
      right by trial counsel's failure to investigate material evidence,
      that could have exonerated petitioner, constitute defective
      representation?

      [6.] Did or did not, the PCRA court abuse it's [sic] discretion in
      dismissing petitioner[’]s May 23, 2016, pro-se, PCRA petition, as
      untimely, by failing to appoint counsel to determine whether any
      of the statutory exception to the (1) year filing period applied to
      petitioner[’]s May 23, 2016, pro-se, pursuant to Pa.R.Crim.P.
      Rule 904?

Appellant’s brief at E-F.

      Appellant’s claims are repetitive and can be summarized as follows: 1)

the Commonwealth committed a Brady violation when it failed to inform him

that semen discovered in the victim’s throat was tested but the results were


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inconclusive; 2) the Commonwealth committed a Brady violation by not

revealing to him that blood was discovered on the same shirt that the victim

used to collect his semen; 3) trial counsel was ineffective for permitting the

jury to hear that semen was found in the victim’s throat when DNA testing of

that semen was inclusive; 4) trial counsel was ineffective for failing to obtain

DNA testing of the blood on the shirt that also contained Appellant’s semen;

and 5) counsel should have been appointed for purposes of litigating the

present PCRA petition in order to establish that it was timely filed.

      This Court reviews the “denial of PCRA relief to determine whether the

findings of the PCRA court are supported by the record and free of legal

error.” Commonwealth v. Roane, 142 A.3d 79, 86 (Pa.Super. 2016)

(quoting Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015)). It is

now settled law that all PCRA petitions must be filed within one year of the

date a defendant’s judgment of sentence becomes final unless an exception

to the one-year time restriction applies. 42 Pa.C.S. § 9545(b)(1). If a PCRA

petition is untimely, “neither this Court nor the trial court has jurisdiction

over the petition.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super.

2014) (citation omitted); see also Commonwealth v. Spotz,               ___ A.3d

(Pa. CAP 731 and 734 filed October 18, 2017); Commonwealth v.

Chester, 895 A.2d 520, 522 (Pa. 2006). The PCRA’s time constraints are

not subject to tolling or other equitable considerations. Spotz, supra.

      There are three enumerated exceptions to this one-year time

requirement: (1) interference by government officials in the presentation of

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the claim; (2) newly discovered facts; and (3) an after-recognized

constitutional right. 42 Pa.C.S. § 9545(b)(1)(i-iii). The PCRA petitioner has

the burden of pleading and proving the existence of any exception invoked.

Spotz, supra. Moreover, the PCRA petition must be filed within sixty days

of when the claim first could have been presented. 42 Pa.C.S. § 9545 (b)(2)

(“Any petition invoking an exception provided in paragraph (1) shall be filed

within 60 days of the date the claim could have been presented.”).

      We previously observed that Appellant’s judgment of sentence became

final for purposes of the PCRA on June 29, 2005, and that he had until June

29, 2006, to file a timely petition. The present petition is patently untimely.

In support of an exception, Appellant first raises the specter of violations of

Brady v. Maryland, 373 U.S. 83 (1963), with respect to the blood found on

the shirt and the semen from the victim’s throat that proved inclusive when

tested.   “Under Brady, the prosecution's failure to divulge exculpatory

evidence is a violation of a defendant's Fourteenth Amendment due process

rights. To establish a     Brady violation, a defendant is required to

demonstrate that exculpatory or impeaching evidence, favorable to the

defense, was suppressed by the prosecution, to the prejudice of the

defendant.” Commonwealth v. Cam Ly, 980 A.2d 61, 75 (Pa. 2009)

(citation omitted).

      Our Supreme Court has articulated: “Although a Brady violation may

fall within the governmental interference exception [to the one-year time

bar], the petitioner must plead and prove the failure to previously raise the

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claim was the result of interference by government officials, and the

information could not have been obtained earlier with the exercise of due

diligence.” Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa.

2008). Due diligence “demands that the petitioner take reasonable steps to

protect his own interests.” Commonwealth v. Brown, 111 A.3d 171, 176

(Pa.Super. 2015).    Accordingly, the PCRA petitioner must explain why he

could not have learned of the existence of information in question earlier by

simple investigation. Id.

      In support of his purported Brady violations, Appellant presents

police laboratory reports dated November 13, 2000, and March 21, 2001,

and two property receipts from November 6, 2000.          Appellant’s brief at

Exhibits 1-4.   Appellant makes no attempt to establish why he could not

have uncovered these documents much earlier, and he did not plead

sufficient facts to establish that he could not have learned about the

supposedly exculpatory evidence years ago through simple investigation.

Hence, the PCRA court did not abuse its discretion in concluding that

Appellant did not exercise due diligence and could not invoke a Brady

violation by means of the governmental interference exception.

      Appellant also levels three allegations of ineffective assistance of

counsel in his statement of questions involved in this appeal.      “It is well

settled that allegations of ineffective assistance of counsel will not overcome

the jurisdictional timeliness requirements of the PCRA.” Commonwealth v.

Wharton, 886 A.2d 1120, 1127 (Pa. 2005).         Wharton is merely a more

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recent iteration of this well-ensconced principle. Commonwealth v. Abu–

Jamal, 833 A.2d 719 (Pa. 2003). Commonwealth v. Gamboa–Taylor,

753 A.2d 780 (Pa. 2000); Commonwealth v. Bronshtein, 752 A.2d 868

(Pa.   2000);     Commonwealth         v.    Lark,     746   A.2d   585    (Pa.   2000);

Commonwealth v. Pollard, 911 A.2d 1005 (Pa.Super. 2006). Accordingly,

Appellant’s third, fourth, and fifth claims do not satisfy an exception to the

one-year time bar.

       Finally,   Appellant   argues    that      he   should   have      received   the

appointment of counsel for purposes of establishing that an exception

applied herein. Pa.R.Crim.P. 904 provides for the automatic appointment of

counsel for purposes of a first PCRA petition. Pa.R.Crim.P. 904(C) (“when an

unrepresented defendant satisfies the judge that the defendant is unable to

afford or otherwise procure counsel, the judge shall appoint counsel to

represent the defendant on the defendant's first petition for post-conviction

collateral relief.”). However, when a second or subsequent PCRA petition is

filed, an indigent defendant is entitled to appointed counsel only if “an

evidentiary hearing is required as provided in Rule 908[.]” Pa.R.Crim.P.

904(D). A hearing is required if the petition “raises material issues of fact.”

Pa.R.Crim.P. 908(2).

       In the present case, there is no issue of material fact that Appellant

did not meet an exception to the one-year time bar. He failed to exercise

due diligence in ascertaining that there was blood on the shirt where his

semen was found and in discovering that the testing on the semen found in

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the victim’s throat was inconclusive.    Additionally, claims of ineffective

assistance of counsel do not meet any of the exceptions. Hence, there is no

issue of fact that this PCRA petition was untimely. The PCRA court therefore

did not have to appoint counsel.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/2017




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