J-S36029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DALE M. JOHNSON

                            Appellant                No. 1858 WDA 2014


                 Appeal from the PCRA Order October 29, 2014
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0016792-2008


BEFORE: PANELLA, J., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY JENKINS, J.:                             FILED JULY 16, 2015

        Appellant Dale Johnson appeals from the order of the Allegheny

County Court of Common Pleas dismissing as untimely his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et

seq. We affirm.

        In a previous disposition in this case, the PCRA court summarized the

relevant facts as follows:

           On August 13, 2008, [the victim] was attacked at his
           home. He first heard the sound of his back door crashing
           in. An intruder approached him at great speed, hit him on
           the head and threw him to the floor. The intruder wore a
           white mask and hit him on his head and face with a heavy
           object. A second person was present who the victim did
           not see. The victim heard two voices, one voice was heard
           to say, “Shoot him now.” The victim could not tell which of
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*
    Retired Senior Judge assigned to the Superior Court.
J-S36029-15


       the intruders uttered the statement. A gun was placed
       into his mouth and the victim heard it click. During the
       incident, the victim’s watch was taken from him.

       Officer Klobucher testified that he was a patrol officer on
       duty and in full uniform on the night in question. He
       stated that he was dispatched following a call from a
       neighbor that two individuals were attempting to gain
       entry to the victim’s residence. Officer Klobucher was the
       first officer to arrive at the scene, less than a minute and a
       half from the time he was dispatched. Upon arrival, from
       the back of the house, he observed the broken back door,
       looked inside the house, and saw two individuals. They
       were both wearing masks, one mask tan and one mask
       white. Both individuals were making punching and pushing
       motions toward the floor.

       Eventually, the actor wearing the tan mask saw the Officer
       and extended his right arm straight out in front of him with
       his fist clenched. The Officer observed an object in the
       actor’s right hand but could not positively identify the
       object. Believing the object to be a gun, he took cover
       and drew his firearm. When he looked back into the
       residence, the masked individuals were no longer in sight.

       In the meantime, backup officers arrived on the scene.
       One suspect was apprehended in the basement. A firearm
       and a white bandana were recovered in the basement.
       The other individual was apprehended in the front of the
       residence. He was wearing a tan mask. That individual
       was identified by the [apprehending] Officer as
       [Appellant].

       Officer Frisk, upon arrival, positioned himself in front of the
       house and observed a man wearing a tan mask peer out
       the front window between the blinds. Approximately ten
       to fifteen seconds later, a man wearing the same mask
       “burst through the front door.” Officer Frisk yelled for the
       actor to show his hands and get on the ground. Instead of
       complying with that directive, [Appellant] continued
       toward the Officer and the Officer deployed his Taser.

       Officer Frisk identified [Appellant] as the man wearing the
       tan mask who he apprehended leaving the front of the
       house. [Appellant] did not have a valid license to carry a
       firearm. The firearm was tested and returned as operable.

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          Located on [Appellant’s] person, in his right front pants
          pocket, was a gold and silver watch and a set of car keys.
          The watch recovered was consistent with what was
          identified by the victim as his watch.

PCRA Court Opinion, filed November 22, 2011, at 3-5 (internal citations

omitted).

       At trial, Appellant testified that Dale Tansmore and an individual

Appellant did not know asked him for a ride.          N.T. at 107.1   Tansmore

directed him to the victim’s house, claiming he had to pick up something.

Id. at 107-08.        Appellant waited in the car, while Tansmore and the

unknown individual exited the car and went between the houses.           Id. at

109. About a minute later, the unknown man ran to the car wearing a tan

mask.    Id.   Appellant did not let him in the car, but went to the victim’s

house, and tried to help the victim. Id. at 110-11. The police then arrived

and arrested Appellant and Tansmore.             Id. at 112.   Appellant further

testified that the police did not find the watch on him and the police

“obviously found the other man’s mask,” which the officer put to Appellant’s

face to see if it fit, stuffed it in his pocket, and said “that must be yours.”

Id. at 113-14.

       On July 28, 2009, a jury convicted Appellant of aggravated assault

(serious bodily injury), burglary, robbery (serious bodily injury), aggravated

____________________________________________


1
  The trial occurred on July 24, 2009, July 27, 2009, and July 28, 2009. The
transcripts from all trial days are included in one transcript, cited as N.T.




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assault (deadly weapon), terroristic threats, and unlawful restraint.2          On

October 22, 2009, the trial court sentenced Appellant to an aggregate term

of imprisonment of 12 to 24 years, followed by 5 years’ probation.              On

August 31, 2010, this Court affirmed the judgment of sentence, and the

Pennsylvania Supreme Court denied further review on February 2, 2011.

See    Commonwealth           v.    Johnson,     11   A.3d   1046   (Pa.Super.2010)

(unpublished memorandum), appeal denied, 14 A.3d 825 (2011).

       On February 24, 2011, Appellant timely filed a pro se PCRA petition.

The court appointed counsel, who later filed a “no-merit” letter pursuant to

Turner/Finley,3 and a motion to withdraw. By order dated February 27,

2011 and filed on April 28, 2011, the PCRA court granted counsel’s motion

for leave to withdraw and issued notice of its intent to dismiss Appellant’s

petition without a hearing pursuant to Pennsylvania Rule of Criminal

Procedure 907. On May 16, 2011, Appellant filed objections to the Rule 907

notice.   On May 25, 2011, the PCRA court dismissed Appellant’s petition.

Appellant filed a notice of appeal and a concise statement of errors

complained of on appeal.           He then filed an amended concise statement of

errors complained of on appeal, to which he attached an affidavit from


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2
 18 Pa.C.S. §§ 2702(a)(1), 3502(c)(1), 3701(a)(1), 2702(a)(4), 2706, and
2901(a)(1).
3
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)                              and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988) (en banc).



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Dayon Chambers, the victim’s neighbor, who reported the crime to the

police.4 On May 4, 2012, this Court affirmed the PCRA court’s dismissal of

the PCRA petition.         See Commonwealth v. Johnson, 50 A.3d 234

(Pa.Super. 2012) (unpublished memorandum).

       On January 16, 2013, Appellant filed a second PCRA petition, attaching

a second affidavit from Chambers.5 On January 18, 2013, the PCRA court

issued notice of its intent to dismiss the PCRA petition without a hearing.

Appellant again filed objections to the Rule 907 notice.      On January 30,

2013, the PCRA court dismissed the petition.            This Court affirmed.

Commonwealth v. Johnson, No. 327 WDA 2013 (Pa.Super. filed Aug. 28,

2013) (unpublished memorandum).

       On January 8, 2014, Appellant filed the current PCRA petition, his

third. Appellant attached an affidavit from Robert Randolph to this petition.

Randolph claimed he was at Chambers’ house with a group of about ten

people at the time of the incident.6 On January 14, 2014, Appellant filed an

amended petition, attaching an affidavit from Michael Lynn, who also

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4
  Amended Concise Statement of Matters Complained of on Appeal Pursuant
to Pa.R.A.P. 1925(b), at Exh. B (“Chambers Affidavit I”).
5
  Second Petition for Relief Under the Post Conviction Relief Act, at Affidavit
(“Chambers Affidavit II”).
6
  Third Petition for Relief Under The Post-Conviction Relief Act, at Affidavit
(“Randolph Affidavit”).




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claimed to have witnessed the incident from Chambers’ house.7 The PCRA

court appointed counsel, who filed an amended PCRA petition.        Appellant

then received an affidavit from a fourth individual, Melvin Edmunds, and filed

a motion for leave to amend the PCRA petition, which the PCRA court

granted.     On August 15, 2014, Appellant filed a second amended PCRA

petition, attaching Edmunds’s affidavit.8        On September 18, 2014, the

Commonwealth filed an answer to the PCRA petition. On October 7, 2014,

the PCRA court issued a Rule 907 notice of its intent to dismiss the petition

without a hearing. Appellant filed a response to this notice. On October 29,

2014, the PCRA court dismissed Appellant’s third PCRA petition as untimely.

       On November 12, 2014, Appellant filed a timely notice of appeal. Both

Appellant and the trial court complied with Pennsylvania Rule of Appellate

Procedure 1925.

       Appellant raises the following issues on appeal:

           1. Was the PCRA Court’s conclusion that exculpatory
           witnesses could have been discovered much earlier in the
           exercise of due diligence erroneous as being both
           presumptuous and speculative?

           2. Was the PCRA Court’s conclusion that the evidence
           overwhelmingly supported the conviction, thus rendering
           Appellant's petition “patently frivolous,” erroneous where
____________________________________________


7
  Amendment to Third Petition for Relief Under the Post-Conviction Relief
Act, at Affidavit (“Lynn Affidavit”).
8
 Second Amended Petition for Post-Conviction Relief Under the PCRA, at
Melvin Edmunds Affidavit (“Edmunds Affidavit”).



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         the PCRA Court considered only the evidence received at
         trial and not Appellant's proffered affidavits?

Appellant’s Brief at 3.

      Pursuant to Pennsylvania law, “no court has jurisdiction to hear an

untimely PCRA petition.”      Commonwealth v. Monaco, 996 A.2d 1076,

1079 (Pa.Super.2010) (citing Commonwealth v. Robinson, 837 A.2d

1157, 1161 (Pa.2003)).      The PCRA provides that a petition, “including a

second or subsequent petition, shall be filed within one year of the date the

judgment becomes final.” 42 Pa.C.S. § 9545(b)(1); accord Monaco, 996

A.2d at 1079. A judgment is 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)(3).

      Three exceptions to the PCRA’s time-bar exist. The exceptions allow

for limited circumstances under which a court may excuse the late filing of a

PCRA petition. 42 Pa.C.S. § 9545(b)(1); Monaco, 996 A.2d at 1079.               The

late filing of a petition will be excused if a petitioner alleges and proves:

         (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

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J-S36029-15


           provided in this section and has been held by that court to
           apply retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).   When invoking a time-bar exception, the

petition must “be filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S. § 9545(b)(2).

      Appellant’s judgment of sentence became final on May 3, 2011, 90

days after the Supreme Court of Pennsylvania denied his petition for

allowance of appeal on February 2, 2011. See U.S. Sup. Ct. R. 13.        He had

one year from that date, until May 3, 2012, to file a timely PCRA petition.

Therefore, his current petition, filed on January 8, 2014, is untimely and we

lack jurisdiction unless he satisfies one of the three PCRA time-bar

exceptions.

      Appellant maintains his petition qualifies for the newly-discovered

evidence time-bar exception based on the affidavits from Randolph, Lynn,

and Edmunds, which state:        the individuals were at a barbeque at the

residence of the victim’s next-door neighbor; the individuals witnessed the

incident; and Appellant was attempting to assist the victim. Appellant’s Brief

at 11-20; Randolph Affidavit; Lynn Affidavit; Edmunds Affidavit. Appellant

does not base his newly-discovered evidence argument on Chambers’

affidavits, which he possessed during prior PCRA proceedings.       Appellant’s

Brief at 12.

      This Court has explained the newly-discovered evidence exception as

follows:



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         The timeliness exception set forth in Section 9545(b)(1)(ii)
         requires a petitioner to demonstrate he did not know the
         facts upon which he based his petition and could not have
         learned those facts earlier by the exercise of due diligence.
         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. Additionally, the focus of this exception
         “is on the newly discovered facts, not on a newly
         discovered or newly willing source for previously known
         facts.”

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

citations omitted).

      Appellant knew of Chambers’ existence at the time of trial, as the

police report notes that Chambers was the reporting party.               Further,

Appellant previously submitted two affidavits from Chambers.         Appellant

maintains the Randolph, Lynn, and Edmunds Affidavits are newly-discovered

evidence because he and his family members should not be expected to

have asked Chambers whether any other individuals were at his house at

the time of the incident. He relies on Commonwealth v. Medina, 92 A.3d

1210 (Pa.Super.2014) (en banc) and Commonwealth v. Davis, 86 A.3d

883 (Pa.Super.2014).

      In Medina, the defendant submitted an affidavit wherein a witness,

who was eleven years old at the time of trial, recanted his trial testimony.

92 A.3d at 1213.      The witness claimed he and his brother testified falsely

because the investigating detectives threatened them. Id. This Court found

the affidavits satisfied the newly-discovered evidence exception, reasoning:



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        [T]he credible evidence at the PCRA hearing showed
        [Appellee] had no information that a detective coerced and
        threatened the boys causing Hector [Toro] to lie until
        Hector [Toro] disclosed it at Graterford fourteen years
        after the trial. There was no evidence that Hector had
        recanted earlier or at the time of trial other than telling the
        unidentified detective that he had not seen anything
        incriminating. There was no evidence that, in the
        intervening years since trial, [the appellee] learned of the
        detective’s coercion and threats or knew that Hector [Toro]
        told anyone about lying at trial. The mere fact that [the
        appellee] knew Hector [Toro] was falsely testifying to
        having seen him do something he had not done would not
        provide [the appellee] sufficient information as to why
        Hector [Toro] was lying. The detective’s actions were kept
        secret from prosecutors, the defense team and the trial
        court.

Id. at 1217.

     Similarly, in Davis, this Court found the defendant satisfied the newly-

discovered evidence exception.    In Davis, two witnesses testified at trial

that, although arrested in this or other cases, they did not have an

agreement that they would receive favorable treatment if they testified

against the defendant. 86 A.3d at 890. At the PCRA stage, the defendant

submitted an affidavit from one witness stating he was promised favorable

treatment in exchange for his trial testimony. Id. at 888-89. The defendant

then procured the sentencing transcripts of both witnesses, which confirmed

that the witnesses received favorable treatment in exchange for their

testimony against the defendant.      Id.    This Court found the defendant

satisfied the newly-discovered evidence rule, reasoning:

        At no point during the testimony of either witness did the
        Commonwealth interject to clarify that a deal or leniency
        was offered to either Watson and/or Diggs. Therefore,

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        Appellant had no reason to seek out transcripts of those
        witnesses’ sentencing hearings in unrelated cases to look
        for evidence of such deals. To conclude otherwise would
        suggest that Appellant should have assumed the
        Commonwealth’s witnesses were committing perjury, and
        the Commonwealth was improperly permitting them to do
        so. Due diligence does not require a defendant to make
        such unreasonable assumptions. See [Commonwealth v.
        Selenski, 994 A.2d 1083, 1089 (Pa.2010)] (defining the
        due diligence required by the Commonwealth in
        Pa.R.Crim.P. 600 issues as “fact-specific, to be determined
        case-by-case; it does not require perfect vigilance and
        punctilious care, but merely a showing that the
        Commonwealth has put forth a reasonable effort”).

        Instead, Appellant’s efforts were adequately diligent under
        the circumstances of this case. After receiving Watson’s
        affidavit indicating that Watson had received lenient
        treatment by the Commonwealth in exchange for his
        testimony, Appellant acquired the transcripts of Watson’s
        sentencing proceeding. Appellant also acquired the
        transcripts of Diggs’ sentencing proceeding, evincing that
        Appellant acted diligently in suspecting that the
        Commonwealth may have also concealed a deal offered to
        Diggs.     Such efforts by Appellant amounted to due
        diligence in ascertaining this claim.

Id. at 890-91 (emphasis deleted).

     Here, the PCRA court concluded:

        Chambers’ affidavits establish his availability as a witness
        as far back as 2011.        Had Appellant exercised due
        diligence (e.g. asking Chambers what he was doing prior
        to observing the incident, who else would have observed
        it, etc.) the existence of other potential witnesses would
        have been easily discoverable. The witnesses were
        available for Appellant’s prior PCRA petitions but for his
        own lack of due diligence in finding them. As Appellant
        failed to exercise due diligence in obtaining his alleged
        [newly]-discovered evidence, this [c]ourt did not err in
        dismissing his third PCRA petition without a hearing.

Pa.R.A.P. 1925(a) Opinion, 3/10/2015, at 5.


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       The PCRA court did not abuse its discretion.              Unlike Medina and

Davis, Appellant does not claim the Commonwealth coerced false testimony

from any witness or permitted false testimony to go uncorrected. Chambers’

affidavit claims the police said they would contact him and the remaining

three affiants claim they spoke with the police.             However, unlike Davis,

there is no support for these claims.          Further, as the PCRA court found,

Appellant did not act diligently. He has known of Chambers’ existence since

prior to trial and has known Chambers’ alleged testimony would support

Appellant’s testimony that he was attempting to aid the victim as of 2011,

the filing of Mr. Chambers’ first affidavit. Appellant would have discovered

the existence of the alleged additional witnesses had he asked Chambers

whether any other witnesses existed.9              Finally, unlike Davis and Medina,



____________________________________________


9
  Appellant notes that there is no explanation as to why Chambers did not
inform anyone that he had guests at his residence at the time of the incident
and argues we should not presume Chambers would have revealed the
existence of his alleged guests had he been asked whether others witnessed
the incident. Appellant’s Brief at 16, 16 n.5. The burden is on Appellant to
establish he acted diligently and, therefore, the burden is on Appellant to
prove Chambers would not have revealed this information had he been
asked. See 42 Pa.C.S. § 9545(b)(1)(ii); Commonwealth v. Bennett, 930
A.2d 1264, 1270 (Pa.2007) (petition must allege and prove the facts were
“unknown” to him and could not have been ascertained through the exercise
of due diligence). Appellant procured two other affidavits from Chambers
and offers no explanation as to why he could not have procured a third
affidavit to explain Chambers’ failure to mention the 10-12 people that were
at his house at the time of the incident.




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the police officers arrested Appellant as he was exiting the victim’s

residence, at which time he had the victim’s watch and a mask.10

       Order affirmed.11 The Reply Brief of Appellant is stricken as untimely

filed without good cause shown pursuant to Pa.R.A.P. 2185.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/16/2015




____________________________________________


10
  The affidavits conveniently claim the police planted these objects on
Appellant.
11
  Because we find the PCRA court did not err in dismissing the PCRA petition
as untimely for failure to qualify for the newly-discovered evidence
exception, we need not address the second issue raised on appeal, whether
the PCRA court erred in finding the petition patently frivolous.



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