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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                             :
                                               :
                                               :
    KARREM JOHNSON,                            :
                                               :
                       Appellant               :   No. 1335 EDA 2019

               Appeal from the PCRA Order Entered April 17, 2019
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0010355-2009

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KARREM JOHNSON,                            :
                                               :
                       Appellant               :   No. 1336 EDA 2019

               Appeal from the PCRA Order Entered April 17, 2019
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0005131-2009


BEFORE:      PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY PANELLA, P.J.:                              Filed: August 20, 2020




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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       In these related cases,1 Karrem Johnson, appeals, pro se, from the order

of April 17, 2019, in the Court of Common Pleas of Philadelphia County,

denying, without a hearing, his “second amended” petition filed pursuant to

the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.           After

review, we conclude:         (1) Appellant’s application was, in actuality, not a

second amendment to his first PCRA petition but a second or successive PCRA

petition; (2) the PCRA court lacked jurisdiction to review the PCRA petition

pursuant to Commonwealth v. Lark, 746 A.2d 585, 493 (Pa. 2000); and (3)

in any event, the PCRA petition is untimely.         Accordingly, we quash this

appeal.

       Because of our disposition in this matter, there is no need to recite the

facts underlying Appellant’s conviction, other than to say on June 22, 2008,

Appellant shot and killed Christopher Lomax. On February 9, 2011, a jury

convicted Appellant of murder in the first degree, burglary, possessing an

instrument of crime, and three violations of the Uniform Firearms Act; the trial

court immediately sentenced Appellant to life in prison.

       On August 27, 2012, this Court affirmed the judgment of sentence. See

Commonwealth v. Johnson, 60 A.3d 581 (Pa. Super. 2012) (unpublished



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1 The cases are related because they concern the same facts, the same
appellant, and raise the same issues. We note the trial court issued a single
opinion on both cases and the parties filed identical briefs. Therefore, we will
dispose of these matters in one decision.


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memorandum). On September 25, 2013, the Pennsylvania Supreme Court

denied leave to appeal. Commonwealth v. Johnson, 75 A.3d 1281 (Pa.

2013). On May 19, 2014, the United States Supreme Court denied Appellant’s

petition for a writ of certiorari. Johnson v. Pennsylvania, 572 U.S. 1119

(2014).

      On March 22, 2015, Appellant, acting pro se, filed a timely first PCRA

petition.   The trial court appointed counsel, who filed an amended PCRA

petition on November 28, 2015, which raised claims of ineffective assistance

of trial counsel. Subsequently, the PCRA court issued its notice of intent to

dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907. Appellant

did not file a response. On December 12, 2016, the PCRA court dismissed

Appellant’s PCRA petition. On December 14, 2016, Appellant filed a timely

notice of appeal.

      On August 15, 2017, despite the matter pending on appeal, Appellant

filed, without seeking leave of court, what he titled a second amended PCRA

petition in the PCRA court. It raised a single new issue: trial counsel was

ineffective for failing to object to the trial court’s jury instruction on reasonable

doubt. On August 17, 2017, Appellant filed a petition to remand in this Court.

On August 30, 2017, Appellant filed a petition for leave to amend his PCRA

petition in the PCRA court. On August 31, 2017, Appellant’s counsel filed a

motion to withdraw as counsel in this Court. On September 5, 2017, counsel

filed a petition for leave to file a supplemental brief to raise the same new


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issue regarding trial counsel’s competence. On September 8, 2017, this Court

granted Appellant’s application to file a supplemental brief.

      On February 13, 2018, we affirmed the denial of Appellant’s first PCRA

petition. Commonwealth v. Johnson, 179 A.3d 1105 (Pa. Super. 2018). In

footnote ten of the opinion, we denied the motions to remand and to withdraw

as counsel. Id. at 1123 n.10. We held Appellant waived his claim regarding

trial counsel’s failure to object to the jury charge because he did not raise it

in his first amended PCRA petition or in his Rule 1925(b) statement.         Id.

However, we noted Appellant was free to pursue the claims below. Id. On

November 20, 2018, the Pennsylvania Supreme Court denied leave to appeal.

Commonwealth v. Johnson, 197 A.3d 1174 (Pa. 2018).

      On December 13, 2018, counsel filed a petition to withdraw in the PCRA

court so Appellant could raise counsel’s ineffectiveness for failing to raise, in

the first amended PCRA petition, trial counsel’s ineffectiveness for not

objecting to the jury charge. The PCRA court granted counsel’s request to

withdraw. Appellant did not seek appointment of new counsel and did not

seek leave to file a supplemental PCRA petition raising PCRA counsel’s

ineffectiveness. On February 21, 2019, the court issued a Rule 907 notice.

Appellant did not file a response. On April 17, 2019, the PCRA court denied

Appellant’s second amended PCRA petition.          The instant timely appeal




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followed.2 On appeal, Appellant contends PCRA counsel was ineffective for

failing to raise trial counsel’s ineffectiveness in not objecting the trial court’s

reasonable doubt instruction. Appellant’s Brief, at 4.

       Our standard of review is settled.             We review a denial of a post-

conviction petition to determine whether the record supports the PCRA court’s

findings    and    whether     its   order     is   otherwise   free   of   legal   error.

Commonwealth v. Faulk, 21 A.3d 1196, 1199 (Pa. Super. 2011) (citation

omitted).

       Prior to reaching the merits of Appellant’s claim, we must first decide if

this appeal is properly before us.             As noted above, Appellant filed what

purported to be an amendment of his first amended PCRA petition, while the

appeal of the dismissal of that petition was pending before this Court.

Appellant fails to point to any authority, and we can find none, which would

permit the amendment of a PCRA petition that the PCRA court dismissed over

eight months previously. Moreover, it is long settled a PCRA petitioner must

seek leave of court prior to filing a supplemental petition. See Pa.R.Crim.P.

905(a); see also Commonwealth v. Mason, 130 A.3d 601, 625 n.29 (Pa.

2015). While Appellant did eventually seek leave to amend in the PCRA court,

the denial of his first petition was on appeal. A timely appeal typically divests


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2 The PCRA court directed Appellant to file a concise statement of errors
complained of on appeal on May 8, 2019. Although it is not listed on the
docket, it appears Appellant filed a timely Rule 1925(b) statement. On
September 26, 2019, the court filed an opinion.

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the trial court of jurisdiction over the case. See Pa.R.A.P. 1701(a). Thus, the

trial court did not have jurisdiction to consider Appellant’s motion for leave to

file an amended PCRA petition. Moreover, this Court ultimately affirmed the

dismissal of the petition and the Pennsylvania Supreme Court denied leave to

appeal. There is certainly no authority which would allow for the amendment

of a PCRA petition under these circumstances.

      Accordingly, the trial court should have characterized Appellant’s filing

as a second or subsequent PCRA petition and dismissed it as premature. As

noted, Appellant filed the instant application during the pendency of the appeal

of Appellant’s first PCRA petition. The Pennsylvania Supreme Court has held

that a second or 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.”

Commonwealth v. Lark, 746 A.2d at 588; but see Commonwealth v.

Porter, 35 A.3d 4 (Pa. 2012) (PCRA court may consider second or subsequent

PCRA petition where first petition has been held in abeyance at request of

petitioner and case is not on appeal). Thus, Appellant’s second PCRA petition

was prematurely filed and should have been dismissed as such.

      Even if that was not the case, the petition is untimely and thus, the trial

court had no jurisdiction to entertain it. See Commonwealth v. Hutchins,

760 A.2d 50, 53 (Pa. Super. 2000).




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      A petitioner must file a PCRA petition within one year of the date the

underlying judgment becomes final. See 42 Pa.C.S. § 9545(b)(1).

      The PCRA timeliness requirement, however, 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.

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

      Appellant’s judgment of sentence became final on May 19, 2014, the

date on which the United States Supreme Court denied his petition for a writ

of certiorari. See Pa.C.S.A. § 9545(b)(3). Therefore, he had until May 19,

2015, to file a timely PCRA petition. The one before us, filed August 15, 2017,

is patently untimely.

      Nevertheless, we may still consider an untimely PCRA petition if one of

the three time-for-filing exceptions applies. See 42 Pa.C.S. § 9545(b)(1)(i)-

(iii). In the petition, Appellant contended he had recently discovered, in an

unpublished decision, a judge in the United Stated District Court for the

Eastern District of Pennsylvania found an identical reasonable doubt jury

instruction given by the trial judge who presided over Appellant’s case

unconstitutional.   Second Amended Post Conviction Petition, 8/15/17, at

unnumbered pages 1-2. While the PCRA does allow for an exception for newly

recognized constitutional right, in order to invoke the exception a petitioner

must plead and prove:




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       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)(iii). For claims arising prior to December 24, 2017,

a petitioner invoking an exception must file his petition within 60 days of the

date he or she could have presented the claim.3 See Act 2018, Oct. 24, P.L.

894, No. 146, §2 and §3.

       Here, however, Appellant has not met this standard. He does not point

to any new right recognized by either the Pennsylvania or United States

Supreme Court; he only directs our attention to an unpublished memorandum

by a district court judge. As we noted in our decision affirming the dismissal

of Appellant’s prior PCRA petition, decisions of a federal district court are not

binding on this Court.         See Johnson, 179 A.3d at 1123 n.10 (citation

omitted). And they certainly do not constitute a decision by the Supreme Court

of Pennsylvania or the Supreme Court of the United States.            Therefore,

Appellant fails to satisfy the newly recognized constitutional right exception

the PCRA time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(iii). The instant petition


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3 Effective December 24, 2018, Act 146 of 2018 amended 42 Pa.C.S.A. §
9545(b)(2), and now provides that a PCRA petitioner invoking a timeliness
exception must file the petition within one year of the date the claim could
have been presented, for all claims arising after December 24, 2017. See Act
2018, Oct. 24, P.L. 894, No. 146, §2 and §3. Accordingly, the one-year
extension does not apply to Appellant’s August 2017 PCRA petition.




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is untimely, does not satisfy any statutory exception, and there is no

jurisdiction for any court to review the petition.4

       Accordingly, because Appellant filed his petition during the pendency of

the appeal on his prior petition, the instant PCRA petition is premature.

Further, as Appellant failed to plead and prove his petition falls within one of

the enumerated exceptions to the PCRA time bar, it is untimely.          We are

without jurisdiction to consider the merits of his appeal.

       Appeals quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/20/20




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4 Further, even if we had jurisdiction, Appellant waived the only claim raised
on appeal. Appellant did not raise his concerns about PCRA counsel’s
stewardship in a response to the Rule 907 notice or in a serial PCRA petition.
Appellant raised the claim for the first time in his Pa.R.A.P. 1925(b) statement.
This Court has held claims of ineffective assistance of PCRA counsel must be
raised either in a response to a Rule 907 notice or in a serial PCRA petition;
they cannot be raised for the first time in a Rule 1925(b) statement or on
appeal. See Commonwealth v. Johnson, 179 A.3d 1153, 1158 (Pa. Super.
2018). Thus, we would lack jurisdiction to hear Appellant’s claim of ineffective
assistance of PCRA counsel. If we had jurisdiction to reach Appellant’s
underlying claim of ineffective assistance of trial counsel, we would find it
lacked merit for the reasons expressed in the PCRA court’s opinion. See PCRA
Court Opinion, 9/23/19, at 5-11.

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