J-S09014-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BRIAN JOHNSON                              :
                                               :
                       Appellant               :   No. 972 EDA 2019

             Appeal from the PCRA Order Entered January 6, 2014
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0705391-1995


BEFORE:      SHOGAN, J., LAZARUS, J., and COLINS, J.*

MEMORANDUM BY SHOGAN, J.:                              FILED AUGUST 31, 2020

        Appellant, Brian Johnson, appeals nunc pro tunc from the January 6,

2014 order denying his petition filed pursuant to the Post Conviction Relief Act,

42 Pa.C.S. §§ 9541-9546. Counsel has petitioned to withdraw pursuant to

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

Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). We affirm the PCRA court’s

order and grant counsel’s petition to withdraw.

        The PCRA court aptly summarized the relevant procedural history, as

follows:

               On February 24, 1994, [Appellant] was arrested and charged
        with the murder of Antonio Jenrette. On October 2[9], 1996,
        [Appellant] pled guilty to third degree murder, one count of
        violation of the Uniform Firearms Act (VUFA), and possession of an
        instrument of crime (PIC). [Appellant] was represented at this
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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       guilty plea hearing by David Rudenstein, Esquire. Pursuant to his
       negotiated plea, [Appellant] was sentenced to 10 to 20 years state
       incarceration on the murder charge, 2 1/2 to 5 years state
       incarceration on the VUFA charge, and 2 1/2 to 5 years state
       incarceration on the PIC charge.        All charges were to run
       consecutively for an aggregate sentence of 15 to 30 years state
       incarceration. No direct appeal was filed.

             On August 8, 2011, [Appellant] filed a pro se “Motion to
       Withdraw Guilty Plea Nunc Pro Tunc.” This motion was received
       and docketed by the post-trial unit as a first PCRA petition.
       Barnaby C. Wittels, Esquire was appointed as PCRA counsel on
       October 31, 2012. On September 9, 2013, Mr. Wittels filed a no-
       merit letter pursuant to Finley.[1] On December 3, 2013, Judge
       Erdos sent [Appellant] a Notice of Intent to Dismiss Pursuant to
       Rule 907 based upon counsel’s Finley letter. [Appellant] responded
       to the 907 Notice on January 2, 2014. On January 6, 2014, Judge
       Erdos dismissed [Appellant’s] petition. [Appellant] did not file a
       direct appeal.

              On November 17, 2014, [Appellant] filed a second PCRA
       petition, this time seeking reinstatement of his appellate rights so
       that he could appeal the dismissal of his original petition. He
       claimed that he never received notice of its dismissal until he
       received a mailing from the Court of Common Pleas Prothonotary’s
       Office on September 19, 2014, which included a copy of his docket.
       On April 18, 2018, this matter was assigned to this [c]ourt. On
       March 13, 2019, the Commonwealth filed its response to
       [Appellant’s] petition, in which it agreed that [Appellant’s]
       appellate rights should be reinstated nunc pro tunc. On March 15,
       2019, this Court granted the relief requested in [Appellant’s]
       petition and reinstated [Appellant’s] appellate rights nunc pro tunc,
       also indicating that [Appellant] was entitled to appointment of
       appellate counsel if he so wished. On March 22, 2019, [Appellant]
       filed his Notice of Appeal to Superior Court. On April 5, 2019,
       [Appellant] filed a motion for appointment of counsel. After his
       request received no response from the Appeals Unit, this Court
       issued an order on June 14, 2019, ordering that appellate counsel


____________________________________________


1 Attorney Wittels concluded that the petition was untimely, no exceptions to
the jurisdictional time bar were established, and that the issues raised therein
were without merit. Finley Letter Brief, 2/9/13, at 3–8.

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     be appointed forthwith. On June 21, 2019, John Belli, Esquire was
     appointed as counsel and entered his appearance.

Trial Court Opinion, 8/30/19, at 2–3. As noted, counsel has filed a brief on

Appellant’s behalf, and counsel’s petition to withdraw remains outstanding.

     Prior to addressing the merits of the issues on appeal, we must first

decide whether counsel has fulfilled the procedural requirements for

withdrawing his representation. Commonwealth v. Daniels, 947 A.2d 795,

797 (Pa. Super. 2008). This Court has listed conditions counsel must satisfy

when seeking to withdraw in a collateral appeal:

            Counsel petitioning to withdraw from PCRA representation
     must proceed . . . under Turner, supra and Finley, supra and
     . . . must review the case zealously. Turner/Finley counsel must
     then submit a “no-merit” letter to the trial court, or brief on
     appeal to this Court, detailing the nature and extent of counsel’s
     diligent review of the case, listing the issues which petitioner
     wants to have reviewed, explaining why and how those issues
     lack merit, and requesting permission to withdraw.

           Counsel must also send to the petitioner: (1) a copy of the
     “no merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
     and (3) a statement advising petitioner of the right to proceed pro
     se or by new counsel.

                                     ***

             [W]here counsel submits a petition and no-merit letter that
     . . . satisfy the technical demands of Turner/Finley, the [court in
     which the application was filed, meaning the trial court or the
     appellate court] must then conduct its own review of the merits
     of the case. If the court agrees with counsel that the claims are
     without merit, the court will permit counsel to withdraw and deny
     relief.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation

omitted).

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     In the application filed with this Court, Attorney John Belli explained he

reviewed the case, evaluated the issues, conducted an independent review of

the record, and concluded there were no issues of merit. Counsel listed issues

Appellant sought to raise and explained why the appeal is without merit. In

addition, counsel asserted that he served Appellant with a copy of the

application to withdraw, the brief, and a letter addressed to Appellant

accompanying those documents. Thus, we will allow counsel to withdraw if,

after our independent review, we conclude that the claims relevant to this

appeal lack merit.

     In the Turner/Finley brief, counsel set forth the issues Appellant wanted

to raise on appeal, which counsel concludes are meritless, as follows:

           1. Was trial counsel ineffective for failing to investigate,
     interview, and call as witnesses several persons who possessed
     exculpatory information?

            2. Did trial counsel provide ineffective assistance of counsel
     by failing to expend sufficient time preparing the case for trial and
     conferring with Appellant?

           3. Did trial counsel coerce Appellant to plead guilty by
     advising him that it was likely that he would be convicted of first
     degree murder and receive a sentence of life imprison[ment]?

           4. Is Appellant entitled to PCRA relief because he is actually
     innocent?

           5. Is Appellant entitled to PCRA relief predicated on
     information provided by Nathan Riley in an affidavit, someone
     Appellant was aware of when he was arrested?




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Turner/Finley Brief, 10/29/19, at 3–4. Appellant raised an additional issue

on April 2, 2012, in a pro se supplemental PCRA petition asserting that he was

entitled to relief based on the holding of the then recently issued case of Lafler

v. Cooper, 566 U.S. 156 (2012), wherein the United States Supreme Court

reaffirmed the principle that a criminal defendant is entitled to the effective

assistance of counsel during a guilty plea proceeding. Turner/Finley Brief at

4.2

       After PCRA counsel filed his Turner/Finley brief and petition to

withdraw as counsel, Appellant filed a pro se response and objection to the

brief and counsel’s petition.       In Appellant’s pro se response, he raised the

following issue, which we present here verbatim:



____________________________________________


2 The certified record does not include Petitioner’s August 8, 2011 PCRA
petition. On October 3, 2019, Penelope Graves of the Philadelphia Court of
Common Pleas Appeals Unit filed a notice to the Prothonotary of this Court
representing that:

       The [Commonwealth v. Johnson] case is missing from the Office
       of Judicial Records. Accordingly, a reconstructed record was
       prepared from available documents of the Document Management
       System of available scanned court documents. Also, there were
       available notes of testimony located, possibly with the
       record.    When the original file is returned/located it will be
       immediately transmitted to the appellate court.

Notice, 10/3/19, at unnumbered 1. On follow-up inquiry from the Superior
Court Prothonotary, it was determined that the missing documents could not
be located. Our review is not hampered, however, because Appellant does
not aver that appointed counsel or the PCRA court mischaracterized the
allegations in his original petition.


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      Appellant avers that his guilty plea was not knowing, voluntary and
      intelligent because he was not advised of the mandatory term of
      imprisonment that his guilty plea subjected him to under
      Pennsylvania indeterminate sentencing scheme, in violation of his
      due process rights under the United States Constitution and all
      previous counsel’s provided constitutional ineffective assistance for
      failing to object and preserve this issue for appellate review in
      violation of the Sixth Amendment right to effective assistance of
      counsel.

Appellant’s Pro Se Response, 1/2/20, at 1.

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super. 2015)

(quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en

banc)). This Court is limited to determining whether the evidence of record

supports the conclusions of the PCRA court and whether the ruling is free of

legal error.   Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super.

2012).

      A PCRA 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). 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. at § 9545(b)(3).

      Beyond the one-year time-bar, a petitioner must plead and prove at least

one of the time-bar exceptions. These exceptions include:


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


42 Pa.C.S. § 9545(b)(1)(i)-(iii). A petitioner must raise the claim within sixty

days that the claim could have been raised. Id. at § 9545(b)(2).3

       In the case sub judice, Appellant was sentenced on October 29, 1996.

Appellant did not file post-sentence motions or a direct appeal. Accordingly,

his judgment of sentence became final thirty days thereafter, on November 29,

1996, when the period for filing a direct appeal to this Court expired. See

Pa.R.A.P. 903(a) (providing an appeal to this Court shall be filed within thirty

days after entry of the order from which the appeal is taken).4 Thus, Appellant

____________________________________________


3 Section 9545(b)(2) was amended to reflect that a petitioner has one year
rather than the prior deadline of sixty days to raise his claim. This amendment
became effective on December 24, 2018, but only applies to claims arising on
December 24, 2017 or after. Thus, the amendment does not apply here.

4 Although the thirtieth day was November 28, 1996, that date fell on a court
holiday, Thanksgiving. See 1 Pa.C.S. § 1908 (“Whenever the last day of any
computation period shall fall on Saturday or Sunday, or on any day made a
legal holiday by the laws of this Commonwealth or of the United States, such
day shall be omitted from the computation.”).


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had until November 29, 1997, to file a timely PCRA petition.            Appellant’s

petition was filed on August 8, 2011, more than thirteen years after his

judgment of sentence became final.             The petition, therefore, is patently

untimely.     See 42 Pa.C.S. § 9545(b)(1); Commonwealth v. Gamboa–

Taylor, 753 A.2d 780, 783 (Pa. 2000) (holding a PCRA petition filed more than

one year after judgment of sentence becomes final is untimely and the PCRA

court lacks jurisdiction to address the petition unless the petitioner pleads and

proves a statutory exception to the PCRA time-bar). We thus turn to whether

Appellant has pled and proven that one or more of the exceptions to the PCRA’s

timeliness requisites applies and allows review of his appellate issues.

       The first three issues in counsel’s Turner/Finley brief assert claims of

trial counsel’s ineffectiveness for: a) failing to investigate, interview, and call

exculpatory witnesses; b) failing to properly prepare the case for trial; and c)

unlawfully inducing the Appellant to enter a guilty plea. Turner/Finley Brief

at 3–4. However, as determined by the PCRA court, Appellant failed to plead

and prove any of the PCRA enumerated timeliness exceptions permitting

review of these issues. PCRA Court Opinion, 8/30/19, at 6.5 Thus, the PCRA

____________________________________________


5   In his pro se supplemental petition, Appellant acknowledged that claims of
ineffective assistance of counsel do not fall within the any of the PCRA
timeliness exceptions. He submits, however, that the time bar should not
apply given “the egregious circumstances here. . . .” Pro Se Supplemental
Petition, 4/2/12, at 4 n.1.       Appellant is not entitled to waiver of the
jurisdictional time bar on this basis. Statutory time limitations “are mandatory
and interpreted literally; thus, a court has no authority to extend filing periods



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court lacked jurisdiction to consider his petition.     See Commonwealth v.

Fahy, 737 A.2d 214, 222. (“This Court has made clear that the time limitations

pursuant to the . . .      PCRA are jurisdictional.”) Having discerned no error of

law, PCRA relief is not warranted. See Commonwealth v. Ward–Green, 141

A.3d 527, 535 (Pa. Super. 2016) (claims for ineffective assistance of counsel

do not save an otherwise untimely petition for review on the merits).

       Appellant next avers that he is entitled to PCRA relief because he was

actually innocent.     This claim is likewise time-barred because assertions of

actual innocence cannot circumvent the PCRA’s timeliness requirements. See

Commonwealth v. Brown, 143 A.3d 418, 420–421 (Pa. Super. 2016)

(declining to construe federal habeas corpus case law as creating an additional

exception to PCRA’s timeliness requirements). As observed by the PCRA court,

              [Appellant] claims “actual innocence,” arguing that this
       “qualifies as a ‘fair and just’ reason seeking withdrawl [sic] of his
       guilty plea.” This claim is entirely without merit as a stand-alone
       claim of “actual innocence” is not cognizable under the PCRA in
       Pennsylvania. Commonwealth v. Brown, 143 A.3d 418, 420-21
       (Pa.Super.2016). Although a federal petitioner may assert a
       “convincing actual innocence claim” to “invoke the miscarriage of
       justice exception to overcome the federal habeas corpus statute
       of limitations,” no such exception exists with respect to the
       timeliness restrictions of the Pennsylvania PCRA. Brown, 143 A.3d
       at 420-21 (citing Commonwealth v. Saunders, 60 A.3d 162, 165
       (Pa. Super.2013)[)].




____________________________________________


except as the statute permits.” Commonwealth v. Rizvi, 166 A.3d 344, 347
(Pa. Super. 2017) (citation omitted).


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PCRA Court Opinion, 8/30/19, at 8 (footnote omitted).         After review, we

conclude that the PCRA’s court’s rationale for rejecting Appellant’s actual

innocence claim as untimely is supported by the record and free of legal error.

Accordingly, Appellant is not entitled to PCRA relief.

      Appellant next argues that he is entitled to relief predicated on newly

discovered facts in the form of an affidavit executed by an alleged witness,

Nathan Riley. The PCRA court examined this issue in the context of whether

trial counsel was ineffective for failing to properly investigate witnesses, not

whether the claim was time-barred. The PCRA court intimated that the Riley

affidavit was not reliable, and concluded that there was no evidence that

Appellant actually told trial counsel about other witnesses.    PCRA Opinion,

8/30/19, at 7.

      While the PCRA court’s legal reasoning on the substantive issue is sound,

we conclude that Appellant’s newly discovered fact claim is not sustainable for

the reason that it is time-barred. The timeliness exception set forth in 42

Pa.C.S. § 9545(b)(1)(ii) requires a petitioner to demonstrate he did not know

the facts upon which he based his claim and could not have learned those

facts earlier by the exercise of due diligence. Commonwealth v. Bennett,

930 A.2d 1264, 1270 (Pa. 2007). A petitioner must explain why he could not

have obtained the new fact earlier with the exercise of due diligence.

Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010)

(citations omitted). This rule is strictly enforced. Id.


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       Appellant does not challenge the assertion that Riley was known to him

when he was charged with the crimes in 1994. Accordingly, because Appellant

cannot establish that he exercised due diligence in regard to unearthing the

purported eyewitness, he cannot invoke the newly discovered fact exception

to the time bar. See Commonwealth v. Pursell, 749 A.2d 911, 916 (Pa.

2000) (describing the Section 9545(b)(1)(ii) exception as one, “which permits

an untimely claim where 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, as an exception for after-discovered evidence.”).

       Appellant avers in his supplemental petition that he is entitled to post

conviction relief based upon the holding of Lafler, 566 U.S. at 163, that a

criminal defendant is entitled to effective assistance of counsel during a guilty

plea   proceeding.      Supplemental    Petition,   4/2/12,   at   1–2.     See

Commonwealth v. Hernandez, 79 A.3d 649, 654 (Pa. Super. 2013) (Lafler

applied the long-established right of effective assistance of counsel to the plea

bargaining process). Appellant again asserts that the newly discovered facts

exception to the PCRA’s timeliness requirements permits review of this issue.

He also maintains that the claim is reviewable under 42 Pa.C.S. § 9545

(b)(1)(iii)’s exception for issues involving constitutional rights recognized by

the Supreme Court of the United States or the Supreme Court of Pennsylvania

after the time period provided in 42 Pa.C.S. §9545(b)(1) and has been held

by that court to apply retroactively. 42 Pa.C.S. §9545(b)(1)(iii).


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      The PCRA Court addressed Appellant’s Lafler claim, as follows:

      In his supplemental petition, [Appellant] attempts to invoke the
      newly discovered fact exception by claiming his petition is timely
      because he filed it within 60 days of the United States Supreme
      Court decision in Lafler v. Cooper, 132 S.Ct. 1376, 182 L.Ed. 2d
      398 (2012). First, it is well settled that subsequent decisional law
      does not constitute a new “fact” for the purposes of exceptions to
      the time bar. Commonwealth v. Brandon, 51 A.3d 231 (Pa.
      Super. 2014). Moreover, this claim is nonsensical. . . . [The]
      holding of this case is wholly inapplicable to his matter. In Lafler,
      the US Supreme Court held that the petitioner was prejudiced by
      counsel’s deficient performance in advising the petitioner to go to
      trial instead of pleading guilty and that the proper remedy was for
      the prosecution to reoffer the plea deal. These facts are in no way
      analogous to [Appellant’s] matter.

PCRA Court Opinion, 8/30/19, at 5–6.

      We agree with the PCRA court’s rejection of Appellant’s Lafler claim as

untimely for the reason that judicial decisions do not constitute “newly

discovered facts.” See Commonwealth v. Watts, 23 A.3d 980, 987 (Pa.

2011) (“subsequent decisional law does not amount to a new ‘fact’ under

section 9545(b)(1)(ii) of the PCRA”).     Moreover, this Court has held that

Lafler did not create a new constitutional right. See Hernandez, 79 A.3d at

654 (Lafler did not enunciate “a constitutional right that was recognized by

the Supreme Court of the United States that would provide Appellant with an

exception to the timeliness requirements of the PCRA.             42 Pa.C.S. §

9545(b)(1)(iii)”).   Accordingly, Appellant has failed to plead or prove a

statutory exception to the PCRA time bar entitling him to relief on his Lafler

claim.




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      Finally, in his pro se response to counsel’s Turner/Finley brief,

Appellant contends that his “guilty plea was not knowing, voluntary and

intelligent because he was not advised of the mandatory term of imprisonment

that his guilty plea subjected him to under the Pennsylvania Indeterminate

sentencing scheme . . . .” Pro Se Response, 1/7/20, at 1. He further avers

that counsel was ineffective for failing to preserve this issue for appellate

review. Id.

      Based upon the certified record that is available for our review, see n.

3, supra, these issues were not raised in either Appellant’s original or

supplemental PCRA petitions. See Petitioner’s Supplemental Petition, 4/2/12,

at 1–10 (outlining the rationale for application of Lafler as a basis for relief);

Attorney Barnaby Wittels Turner/Finley Letter, 9/9/13, at 2 (identifying the

issues Appellant raised in his pro se filings as counsel’s ineffectiveness and an

actual innocence claim); Petitioner’s Objection to Turner/Finley No Merit

Letter, 1/2/14, at 2 (“Petitioner is in agreement [with] Barnaby Wittels,

Esquire, as to claims listed in counsel’s “no-merit” letter as being the claims

raised in his pro se filings.”).

      It is long settled that issues not raised in a PCRA or amended PCRA

petition are waived on appeal. Commonwealth v. Lauro, 819 A.2d 100,

103–104 (Pa. Super. 2003) (waiving five issues not in original or amended

PCRA petition). Further, an appellant cannot raise a subject for the first time

on appeal.    Commonwealth v. Hanford, 937 A.2d 1094, 1098 n.3 (Pa.


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Super. 2007) (new legal theories cannot be raised for first time on appeal);

Pa.R.A.P. 302(a).    Accordingly, we find that Appellant waived the issue

outlined in his pro se response.

      Even if we were to consider Appellant’s current challenge to his guilty

plea as subsumed under the prior allegation that counsel coerced him into

accepting the plea, the claim still would not merit relief because it is time-

barred. As discussed above, Appellant’s PCRA petition was filed over thirteen

years after his judgment of sentence became final. Appellant has failed to

plead and prove that any of the PCRA timeliness exceptions is applicable to

sanction review of his allegedly defective guilty plea proceeding. 42 Pa.C.S. §

9545(b)(1). Additionally, in his pro se response to the Turner/Finley Brief,

Appellant did not attempt to explain why his claims should not be dismissed as

untimely filed.   Furthermore, as to Appellant’s argument that counsel was

ineffective for failing to preserve the guilty plea issue, we are reminded that

claims of ineffective assistance of counsel do not save an otherwise untimely

petition for review on the merits. Ward–Green, 141 A.3d at 535.

      In conclusion, the PCRA court’s rulings in this matter are supported by

the record and free from legal error.        Moreover, we have conducted an

independent review of the record, as well as the contents of counsel’s petition

to withdraw and the Turner/Finley brief; we agree that the PCRA petition is

untimely, meritless, and permits counsel to withdraw.

      Petition to withdraw as counsel granted. Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/31/20




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