J-S61008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ELWOOD JOHNSON                             :
                                               :
                       Appellant               :   No. 1330 EDA 2019

              Appeal from the PCRA Order Entered April 17, 2019
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0009065-2006


BEFORE:      BOWES, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.:                            FILED NOVEMBER 21, 2019

        Elwood Johnson appeals from the April 17, 2019 order dismissing his

eighth petition for collateral relief under the Post-Conviction Relief Act

(“PCRA”) as untimely. We affirm.

        This Court previously provided an apt summary of the factual and

procedural background of this case:

        In September 2006, the authorities began investigating
        Appellant’s involvement in a drug trafficking organization led by
        Jose Cabrera. A confidential informant (“Informant 1”) told the
        authorities Appellant possessed and sold cocaine. The authorities
        subsequently used Informant 1 to conduct three controlled
        purchases of narcotics from Appellant. During each transaction,
        Appellant utilized the same black Honda. Through surveillance,
        the police confirmed Appellant would often travel in his vehicle to
        his mother’s residence at 1317 Locust Street in Norristown. In
        October 2006, a second confidential informant (“Informant 2”)
        told police Appellant stored illegal drugs at 1317 Locust Street.
____________________________________________


*   Former Justice specially assigned to the Superior Court.
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     The authorities subsequently obtained court orders to intercept
     the telephone conversations of Appellant, Mr. Cabrera, Abraham
     Martinez, and other members of [Mr. Cabrera’s] organization. The
     intercepted telephone conversations revealed Appellant had
     purchased cocaine from Mr. Cabrera on October 12, 2006.
     Conversations between Appellant and Mr. Cabrera confirmed
     Appellant was selling this cocaine, and Appellant anticipated
     purchasing additional cocaine from Mr. Cabrera. On October 25,
     2006, the authorities executed a search warrant at 1317 Locust
     Street, recovering 248.41 grams of cocaine. That same day,
     authorities raided other properties associated with the Cabrera
     organization. The authorities also arrested Mr. Cabrera and Mr.
     Martinez, both of whom later agreed to testify against Appellant
     at trial.

           ....

     Following trial, a jury found Appellant guilty of two counts each of
     possession of a controlled substance, corrupt organizations, and
     criminal use of communication facility, and one count each of
     [possession of a controlled substance with intent to deliver
     (“PWID”)], conspiracy, and dealing in proceeds of unlawful
     activities. On February 5, 2009, the [trial] court sentenced
     Appellant to an aggregate term of sixteen and one-half (16½) to
     thirty-three (33) years’ imprisonment. . . .

Commonwealth v. Johnson, 11 A.3d 1014 (Pa.Super. 2010) (unpublished

memorandum at 1-3).

     Appellant filed a direct appeal challenging the sufficiency and weight of

evidence presented by the Commonwealth, and the discretionary aspects of

his sentence. On August 6, 2010, a panel of this Court affirmed Appellant’s

judgment of sentence. Id. Appellant submitted a petition for allowance of

appeal to the Pennsylvania Supreme Court, which denied it on March 9, 2011.

See Commonwealth v. Johnson, 20 A.3d 485 (Pa. 2011).




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       On April 29, 2011, Appellant timely filed his first, pro se PCRA petition.

Counsel was appointed to represent Appellant, who found no meritorious

issues and sought to withdraw pursuant to the framework established under

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth

v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).            The PCRA court

dismissed Appellant’s first petition consistent with counsel’s averments.

However, while Appellant was represented, the PCRA court accepted and

responded to a number of pro se filings from Appellant that raised various

allegations without the assistance of counsel.      Appellant appealed to this

Court. While that appellate review was still pending, Appellant filed a second

PCRA petition that was dismissed as duplicative.1        Thereafter, this Court

concluded that the PCRA court’s acceptance and engagement with Appellant’s

pro se filings constituted “significant procedural error,” vacated the dismissal

of Appellant’s first PCRA petition, and remanded to the PCRA court.         See

Commonwealth v. Johnson, 64 A.3d 25 (Pa.Super. 2012) (unpublished

memorandum).         Immediately after remand, Appellant filed a third PCRA

petition that was also dismissed as duplicative. On May 31, 2013, the PCRA

court dismissed Appellant’s first PCRA petition again. Appellant did not appeal.




____________________________________________


1  See 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 expiration of the
time for seeking such review.”).

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      Between July 18, 2013, and February 1, 2017, Appellant filed four more

PCRA petitions, which were all dismissed by the PCRA court as lacking merit

and/or failing to abide by the timeliness requirements attendant to the PCRA

pursuant to 42 Pa.C.S. § 9545(b). The dismissals were uniformly affirmed by

this Court in unpublished memorandums.         See, e.g., Commonwealth v.

Johnson, 108 A.3d 120 (Pa.Super. 2014) (unpublished memorandum);

Commonwealth v. Johnson, 159 A.3d 39 (Pa.Super. 2016) (unpublished

memorandum); Commonwealth v. Johnson, 183 A.3d 1049 (Pa.Super.

2018) (unpublished memorandum).

      The instant PCRA petition, Appellant’s eighth such submission, was filed

on February 5, 2019. On April 17, 2019, the PCRA court dismissed Appellant’s

serial petition as untimely under the PCRA.        On May 2, 2019, Appellant

predictably appealed to this Court. On the same day, Appellant filed a concise

statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b),

despite the lack of an order from the PCRA court directing him to do so. On

July 17, 2019, the PCRA court filed an opinion explaining its rationale behind

dismissing Appellant’s eighth PCRA petition.

      In pertinent part, Appellant claims in his brief to this Court that he never

received a copy of the arrest warrant in his case, and allegedly learned for the

first time in December 2018 that there is not an arrest warrant present in the

certified record. In relevant part, Appellant avers that this is the result of

governmental interference. See Appellant’s brief at 7 (“[T]he prosecution not

only suppressed the fact that an arrest warrant for Appellant[’]s arrest was

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not issued, they covered it up by sending Appellant docket transcripts stating

that there was an arrest warrant issued for Appellant . . . on October 30, 2006,

which they [cannot] . . . produce . . . .”).

      Our standard and scope of review in this context is well-articulated

under existing Pennsylvania precedent: “On appeal from the denial of PCRA

relief, our standard and scope of review is limited to determining whether the

PCRA court’s findings are supported by the record and without legal error.”

Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013). We must view

the evidence of record in the light most favorable to the prevailing party at

the PCRA court level. See Commonwealth v. Koehler, 36 A.3d 121, 131

(Pa. 2012). However, we apply a de novo standard of review with specific

regard to the PCRA court’s legal conclusions. Commonwealth v. Spotz, 18

A.3d 244, 259 (Pa. 2011).

      Before we may address the underlying merits of Appellant’s eighth PCRA

petition, we must assess whether the petition is timely, or subject to one of

the exceptions to the timeliness requirements under the PCRA.              See

Commonwealth v. Walters, 135 A.3d 589, 591-92 (Pa.Super. 2016) (“[T]he

PCRA’s timeliness requirements are jurisdictional in nature and must be

strictly construed; courts may not address the merits of the issues raised in a

petition if it is not timely filed.”).

      In pertinent part, the PCRA provides as following regarding timeliness:

      (b) Time for filing petition.—



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     (1) Any petition under this subchapter, including a second or
     subsequent petition, shall be filed within one year of the date the
     judgment becomes final, unless the petition alleges and the
     petitioner proves that:

        (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
        Sates;

        (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; . . . .

     ....

     (3) For purposes of this subchapter, a judgment 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).    In reviewing these statutory provisions, it is also

important to note that “there is no generalized equitable exception to the

jurisdictional one-year time bar pertaining to post-conviction petitions.”

Commonwealth v. Brown, 943 A.2d 264, 267 (Pa. 2008).

     Instantly, direct review of Appellant’s judgment of sentence concluded

on March 9, 2011, when our Supreme Court denied Appellant’s petition for

allowance of appeal. See Commonwealth v. Johnson, 20 A.3d 485 (Pa.

Mar. 9, 2011). Therefore, Appellant’s judgment of sentence became final for

the purposes of PCRA timeliness on June 7, 2011, or ninety days after the

time for Appellant to file a writ of certiorari in the U.S. Supreme Court had

expired. See 42 Pa.C.S. § 9545(b)(3); see also U.S. Sup. Ct. R. 13. Thus,

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Appellant had until June 7, 2012, to file a facially timely PCRA. See 42 Pa.C.S.

§ 9545(b)(1). Consequently, Appellant’s eighth PCRA petition is untimely by

more than seven years.

      Appellant claims that the exceptions at 42 Pa.C.S. §§ 9545(b)(1)(i)-(ii)

respecting government interference and newly discovered facts should apply

in this case.   We will begin by addressing the governmental interference

exception, which the Commonwealth contends that Appellant has waived

under Pa.R.A.P. 1925(b)(4)(vii).

      Although Appellant was not directed to file a Rule 1925(b) concise

statement by the PCRA court, his decision to gratuitously file one on his own

initiative entails the same waiver analysis under Pa.R.A.P. 1925(b)(4)(vii).

See Commonwealth v. Snyder, 870 A.2d 336, 341 (Pa.Super. 2005) (“If

we were to find that because he was not ordered to file a [Rule] 1925(b)

statement, he has not waived the issues he neglected to raise in it, we would,

in effect, be allowing appellant to circumvent the requirements of the Rule.”).

The Commonwealth asserts that Appellant has waived any arguments

concerning the governmental interference exception to timeliness under the

PCRA. See 42 Pa.C.S. § 9545(b)(i). We agree. Appellant’s concise statement

clearly limits his arguments to the PCRA timeliness exception at § 9545(b)(ii),

and there is no mention of the exception concerning governmental

interference. As such, this issue has been waived. See Commonwealth v.




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Hill, 16 A.3d 484, 494 (Pa. 2011) (“[A]ny issues not raised in a Rule 1925(b)

statement will be deemed waived; . . . .”).

       We will turn to Appellant’s arguments concerning the newly discovered

material facts exception.       In order to successfully invoke this exception to

timeliness under the PCRA, Appellant must plead and prove that: “(1) the

facts upon which the claim [is] predicated` were unknown and (2) could not

have been ascertained by the exercise of due diligence.” Commonwealth

v. Hart, 199 A.3d 475, 481 (Pa.Super. 2018) (emphasis in original). Due

diligence “requires reasonable efforts by a petitioner, based on the particular

circumstances, to uncover facts that may support a claim or collateral relief,”

but does not call for “perfect vigilance [or] punctilious care.” Id.

       Appellant’s invocation of this exception relates to the alleged absence of

an arrest warrant in the certified record.        Appellant claims that he was

unaware of this “missing” document until he directed a family member to

obtain a copy of the filing from the Montgomery County Clerk of Courts.2 See



____________________________________________


2   Even assuming, arguendo, that no arrest warrant was ever issued for
Appellant, it appears that the Commonwealth fully complied with the
requirements of Pa.R.Crim.P. 519(A)(1) (“[W]hen a defendant has been
arrested without a warrant in a court case, a complaint shall be filed against
the defendant and the defendant shall be afforded a preliminary arraignment
by the proper issuing authority without unnecessary delay.”). A criminal
complaint was filed against Appellant on November 24, 2006. On the same
day, Appellant voluntarily appeared for a preliminary arraignment. Although
we do not reach the merits of Appellant’s arguments, it is entirely unclear
what the gravamen of Appellant’s actual claim for relief may be as it relates
to the “missing” arrest warrant.

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Appellant’s brief at 11. As an initial matter, Appellant’s claim that he did not

realize that there was no arrest warrant in his case for the better part of a

decade beggars belief.     Even assuming, arguendo, that this information

constituted “new” facts that were unknown to Appellant, he has failed to plead

due diligence.    See Commonwealth v. Brown, 111 A.3d 171, 176

(Pa.Super. 2015) (holding that PCRA due diligence requirement must be

strictly enforced). In relevant part, Appellant’s only argument along these

lines is a general averment in his PCRA petition that he was not under an

obligation to act with due diligence because he was allegedly told by a member

of law enforcement that an arrest warrant had been issued in the case.

However, Appellant has not offered any rational explanation regarding why he

could not have determined the absence of the arrest warrant in the intervening

eight years. As such, Appellant has not established that he acted with due

diligence.   See Commonwealth v. Smith, 194 A.3d 126, 135 (Pa.Super.

2018) (holding that defendant did not satisfy due diligence requirement by

offering no reasonable explanation for a 13-year delay in obtaining new

evidence). Therefore, § 9545(b)(1)(ii) is inapplicable.

      Overall, we conclude that Appellant has failed to satisfy the timeliness

exceptions to the PCRA.     As such, we affirm the trial court’s dismissal of

Appellant’s eighth PCRA petition as untimely.

      Order affirmed




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/19




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