J-S46032-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                   Appellee              :
                                         :
             v.                          :
                                         :
REGINALD JOHNSON,                        :
                                         :
                   Appellant             :           No. 1585 EDA 2014

            Appeal from the PCRA Order entered on April 17, 2014
            in the Court of Common Pleas of Philadelphia County,
                Criminal Division, No. CP-51-CR-0909861-1996

BEFORE: MUNDY, OLSON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                   FILED SEPTEMBER 16, 2015

        Reginald Johnson (“Johnson”) appeals from the Order dismissing his

third Petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”).1 We affirm.

        In September 1996, Johnson and an accomplice robbed three

individuals at gunpoint outside of a nightclub. A jury subsequently convicted

Johnson of three counts of robbery, and one count each of criminal

conspiracy and possession of an instrument of crime.      On November 20,

1997, the trial court imposed an aggregate sentence of 37½ to 75 years in

prison.   Following a procedural history that is not relevant to the instant

appeal,    this Court affirmed Johnson’s judgment of       sentence.     See

Commonwealth v. Johnson, 776 A.2d 292 (Pa. Super. 2001) (unpublished



1
    See 42 Pa.C.S.A. §§ 9541-9546.
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memorandum). Johnson did not file a Petition for allowance of appeal with

the Pennsylvania Supreme Court.

       In the following years, Johnson filed two PCRA Petitions, both of which

were     dismissed,   and   this   Court     affirmed   each       dismissal.      See

Commonwealth v. Johnson, 847 A.2d 757 (Pa. Super. 2004) (unpublished

memorandum), appeal denied, 858 A.2d 109 (Pa. 2004); Commonwealth

v. Johnson, 986 A.2d 1257 (Pa. Super. 2009) (unpublished memorandum),

appeal denied, 990 A.2d 778 (Pa. 2010).

       On September 14, 2012, Johnson, represented by counsel, filed the

instant PCRA Petition. Subsequently, the PCRA court gave Johnson Notice,

pursuant to Pa.R.Crim.P. 907, of its intention to dismiss his PCRA Petition

without a hearing, concluding that the Petition was not timely filed, and

Johnson had failed to plead or prove any of the three exceptions to the

PCRA’s    one-year    jurisdictional    time-bar   (collectively     “the   timeliness

exceptions”). Johnson filed a Response to the Rule 907 Notice, and later, a

timely Notice of Appeal. The PCRA court ordered Johnson to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.                    Johnson

timely filed a Concise Statement, after which the PCRA court issued a

Pa.R.A.P. 1925(a) Opinion.

       On appeal, Johnson presents the following questions for our review:

       I. Whether the PCRA Petition was time barred where, as here,
       the delay in filing was attributable to the [trial] court’s
       administrative/judicial staff[,] who misplaced the transcripts
       necessary to develop the facts and issues presented in the PCRA
       Petition?

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      II. Whether the PCRA is facially unconstitutional as applied to
      the facts and circumstances of [Johnson’s] case?

Brief for Appellant at 2 (capitalization and quotation marks omitted).

      We begin by noting our well-settled standard of review: “In reviewing

the [dismissal] of PCRA relief, we examine whether the PCRA court’s

determination is supported by the record and free of legal error.”

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation

omitted).

      Under the PCRA, a defendant must file any PCRA petition within one

year of the date that the judgment of sentence becomes final. 42 Pa.C.S.A.

§ 9545(b)(1); see also id. § 9545(b)(3) (providing that 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 the expiration of time for seeking

review.”).

      Here, Johnson’s judgment of sentence became final in February 2001,

after the period to file an appeal with the Pennsylvania Supreme Court

expired.     See 42 Pa.C.S.A. § 9545(b)(3); see also Pa.R.A.P. 1113(a).

Johnson did not file the instant PCRA Petition until September 2012.        The

Petition is therefore facially untimely, as it was filed over eleven years after

Johnson’s judgment of sentence became final.

      However, Pennsylvania courts may consider an untimely PCRA petition

if the appellant can explicitly plead and prove one of the timeliness

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exceptions: (i) the failure to raise the claim was the result of government

interference; (ii) the facts of the new claim were unknown to the petitioner

and could not have been discovered with due diligence; or (iii) the right

asserted is a constitutional right recognized by the United States Supreme

Court or the Pennsylvania Supreme Court after the time period provided in

the section and has been held to apply retroactively.           42 Pa.C.S.A.

§ 9545(b)(1)(i-iii).   Any PCRA petition invoking one of the timeliness

exceptions must be filed within sixty days of the date the claim could have

been presented. Id. § 9545(b)(2).

      Johnson argues in his first issue that he has met the requirements of

all three of the timeliness exceptions. See Brief for Appellant at 12-16.

      Initially, we observe that the PCRA court concluded that it lacked

jurisdiction to address any of Johnson’s claims, since none of the issues

Johnson raised in his Rule 1925(b) Concise Statement addressed any of the

timeliness exceptions. See PCRA Court Opinion, 1/6/15, at 5. Indeed, the

Concise Statement, which is ten pages long, and in narrative form, only

superficially invokes two of the timeliness exceptions, in a footnote.      See

Concise Statement, 6/9/14, at 8 n.6 (stating that “Johnson raised the claim

in the PCRA [Petition] that the transcript of the jury selection [(hereinafter

‘the Transcript’),] which contains the evidence of the [trial court] judge

impermissibly involving himself in the plea negotiations[,] was placed, in

error, in the file of a co-defendant[,] and that [Johnson] was entitled to




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application   of   [sections]     9545(b)(1)(i)   …[,]   and   9545(b)(1)(ii)[.]”).2

Though we could find Johnson’s claim waived on this basis,3 we will briefly

address the two timeliness exceptions he invoked in the footnote of his

Concise Statement.

      Johnson argues that his PCRA Petition is not time barred under the

governmental interference and newly discovered facts exceptions. See Brief

for Appellant at 11-14.         Specifically, Johnson asserts that court officials

misplaced the Transcript, which reveals that the trial judge allegedly

threatened him with a more severe punishment if he proceeded to trial as




2
  Otherwise, the issues in Johnson’s voluminous Concise Statement concern
claims of ineffectiveness of counsel and actual innocence.
3
  See Pa.R.A.P. 1925(b)(4)(ii) & (vii) (providing, respectively, that “[t]he
Statement shall concisely identify each ruling or error that the appellant
intends to challenge with sufficient detail to identify all pertinent issues for
the judge[,]” and that “[i]ssues not included in the Statement and/or not
raised in accordance with the provisions of this paragraph [] are waived.”).

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opposed to taking a plea bargain.4 Id.; see also id. at 12 (wherein Johnson

claims that the conviction and sentence was unlawful, and that “the trial

court [judge] impermissibly involved himself in and tainted the plea

bargaining process.”). Johnson contends that he exercised due diligence in

raising this claim, as the Transcript was misplaced in another person’s file,

and he discovered it within sixty days of the date that he filed the instant

PCRA Petition.5 Id. at 13, 14.

      Johnson’s bald allegation that courtroom officials misplaced the

Transcript is not sufficient to meet the governmental interference exception.

See Commonwealth v. Marshall, 947 A.2d 714, 721 (Pa. 2008) (stating

that the appellant did not satisfy the governmental interference exception

where he presented general, unsupported allegations and offered no

4
  Johnson specifically challenges the trial court’s following remark made
immediately prior to the empaneling of the jury:

    THE COURT: And have you[, defense counsel,] explained to your
    client that if convicted[,] I would have no qualms about sentencing
    them[, i.e., Johnson and his co-defendant,] to sixty to one hundred
    and twenty years in prison. I’ve done it in the past, and I’ll do it
    today, tomorrow, the next day, or any other day. So, you know, if
    your clients are looking for mercy, now is the time to get it. If they
    want justice, I will bring that jury in the room in just one half of a
    second. So they have to make up their mind now. You want mercy,
    something less than sixty to a hundred twenty years, now is the time
    to ask for it. If you’re looking for justice, I will bring that jury right in
    the room right this minute. What do you wish to do?

N.T., 9/17/97, at 1-2.
5
   Johnson has not advanced any support concerning his allegation that he
filed his PCRA Petition within sixty days of the Transcript being made
available to him. See 42 Pa.C.S.A. § 9545(b)(2).   Nevertheless, we will
address the merits of Johnson’s claim.

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evidence that the Commonwealth interfered with his claims). Johnson has

not advanced any evidence that this omission, in fact, occurred, nor has he

established that it constituted a violation of the law.          See 42 Pa.C.S.A.

§ 9545(b)(1)(i) (providing that governmental interference must constitute a

“violation of the Constitution or laws of this Commonwealth or the

Constitution or laws of the United States.”).             Moreover, Johnson was

previously aware of the trial court judge’s above-mentioned remark, since

Johnson    was   in   the   courtroom   at   the   time    it   was   made.   See

Commonwealth v. Burton, 936 A.2d 521, 526-27 (Pa. Super. 2007)

(where the PCRA petitioner invoked the governmental interference exception

based upon a letter sent to the prosecutor fifteen years prior to the filing of

the PCRA petition, alleging that this letter was improperly withheld from him,

holding that the petitioner’s claim did not meet the exception, since the

existence of the letter was fully discernable to the petitioner fifteen years

prior).

      Regarding Johnson’s claim concerning the newly discovered facts

exception, this Court has described the requirements of the exception as

follows:

             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

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     newly discovered or newly willing source for previously known
     facts.

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

and quotation marks omitted).     Here, as mentioned above, Johnson was

aware of the trial court judge’s above-mentioned remark well in advance of

Johnson’s allegedly recent “discovery” of the Transcript.     The Transcript

merely reflected what happened in court, in Johnson’s presence, and is not a

newly discovered fact; rather it is a new source for information previously

known to Johnson.      See id.    Finally, Johnson fails to provide a valid

explanation as to why he could not have obtained the Transcript earlier with

due diligence.   See id.; see also Burton, 936 A.2d at 526.     Accordingly,

Johnson has failed to meet the requirements of the newly discovered facts

exception.

     Accordingly, Johnson’s first issue does not entitle him to relief.   The

PCRA court properly determined that Johnson’s PCRA Petition is untimely

and that he had not established any of the timeliness exceptions.6

     Next, Johnson argues that the PCRA is unconstitutional on its face, and

as applied to the circumstances of his case. See Brief for Appellant at 16-




6
  To the extent that Johnson raised claims of ineffective assistance of
counsel, “it is well established that the fact that a petitioner’s claims are
couched in terms of ineffectiveness will not save an otherwise untimely
petition from the application of the time restrictions of the PCRA.”
Commonwealth v. Edmiston, 65 A.3d 339, 349 (Pa. 2013) (citation
omitted).

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18.   Citing the Statutory Construction Act (“SCA”),7 he contends that

“[a]pplication of the PCRA’s time bar to defeat claims of constitutional

violations would make the PCRA unconstitutional as applied where, as here,

the delayed filing is attributable to negligence of the [c]ourt’s staff.” Id. at

18; see also id. (arguing that “[t]he General Assembly obviously did not

consider the possibility that delays would be caused by misplaced files ….”).

      Johnson has waived this claim, since he did not raise it in either his

PCRA Petition or his Concise Statement.            See Commonwealth v.

Washington, 927 A.2d 586, 601 (Pa. 2007) (stating that “[a]ny claim not

raised in the PCRA petition is waived and not cognizable on appeal.”); see

also Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (holding that

“[a]ny issues not raised in a 1925(b) statement will be deemed waived.”).8

      We conclude that the record supports the PCRA court’s dismissal of

Johnson’s third PCRA Petition as being untimely, and discern no error of law.

      Order affirmed.


7
   See 1 Pa.C.S.A. § 1501 et seq. Johnson particularly relies upon 1
Pa.C.S.A. § 1922(1), which provides that “the General Assembly does not
intend a result that is absurd, impossible of execution or unreasonable.”
8
  Even if we did not find waiver, there is no merit to Johnson’s claim that the
PCRA violates the SCA and is unconstitutional. It is well established that
“the time restrictions for filing PCRA petitions are constitutional[.]”
Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999); Commonwealth
v. Peterkin, 722 A.2d 638, 643 (Pa. 1998) (same); see also
Commonwealth v. Edmiston, 65 A.3d 339, 349 (Pa. 2013) (stating that
“[a]s we have explained, the nature of the constitutional violations alleged
has no effect on the application of the PCRA time bar. … Rather, the only
cognizable exceptions are set forth at Section 9545(b)(1).” (internal citations
omitted)).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/16/2015




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