J-S15006-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DWAYNE JOHNSON                             :
                                               :
                       Appellant               :   No. 489 WDA 2018

                Appeal from the PCRA Order December 18, 2017
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0001813-1985


BEFORE:      GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                                FILED APRIL 24, 2019

       Appellant, Dwayne Johnson, pro se, appeals from the order entered

December 18, 2017, that dismissed his second petition filed under the Post

Conviction Relief Act (“PCRA”)1 without a hearing. We affirm. Additionally,

we deny Appellant’s outstanding motions as moot.

       Appellant was found guilty, in July of 1985, after a jury trial, of
       second degree murder as a result of the shooting death of
       Ann Bahorich, an employee at a grocery store robbed by
       appellant.   Post-trial motions were denied by order dated
       August 22, 1985, and the trial court sentenced appellant to life
       imprisonment. Appellant filed a direct appeal, and on October 14,
       1986, this Court affirmed the judgment of sentence.
       Commonwealth v. Johnson, 517 A.2d 1365 (Pa.Super. 1986)
       (unpublished memorandum). No petition for allowance of appeal
       was filed.


____________________________________________


1   42 Pa.C.S. §§ 9541–9546.



*    Retired Senior Judge assigned to the Superior Court.
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      Appellant took no further action until January 14, 1997, when he
      filed a pro se petition for PCRA relief. The trial court by order
      dated October 10, 1997, appointed the Allegheny County Public
      Defender’s Office to represent appellant, and an amended PCRA
      petition was filed on or about February 1, 1999. The PCRA court
      filed its notice of intent to dismiss without a hearing on
      October 14, 1999, and appellant filed a response. The PCRA
      petition was dismissed on February 28, 2000, without a hearing[.]

Commonwealth v. Johnson, No. 520 WDA 2000, unpublished memorandum

at 1-2 (Pa. Super. filed March 15, 2001) (footnotes omitted).          This Court

affirmed the dismissal of Appellant’s first PCRA Petition. Id. at 1.

      In 2017, Appellant filed his second PCRA petition, arguing that

“exculpatory evidence” may exist “in police investigation discovery material.”

PCRA Petition, 4/11/2017, at 4 ¶ 4. Appellant acknowledged that his petition

was untimely but invoked the “governmental interference” and “newly

discovered facts/evidence” exceptions to the PCRA’s time bar. Id. at 2 ¶ 6.

      The PCRA court appointed counsel to represent Appellant, who filed a

petition to withdraw and a “no merit” letter pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d

213 (Pa. Super. 1988) (en banc), along with a cover letter that stated that

counsel “conducted an extensive review of this matter” and “determined that

[Appellant’s PCRA] petition was untimely filed and that no exceptions apply.”

Letter from PCRA Counsel to Appellant (Nov. 8, 2017). The cover letter further

informed Appellant: “In the event that the PCRA court grants my motion to

withdraw as counsel, you have the right to proceed with your petition on

you[r] own or with the assistance of privately retained counsel.”        Id.   On


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November 9, 2017, the PCRA court granted counsel’s motion to withdraw and

simultaneously entered a notice of intent to dismiss all claims without a

hearing pursuant to Pa.R.Crim.P. 907. On December 18, 2017, the PCRA court

dismissed Appellant’s petition.

       On January 17, 2018, Appellant filed this timely appeal.            After both

parties filed their briefs, Appellant filed an application for extension of time to

file reply brief and a motion to strike/dismiss the Commonwealth’s brief.

       The    timeliness     of   a   post-conviction   petition   is   jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). “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” one of the three exceptions2



____________________________________________


2   The three exceptions to the timeliness requirement are:

       (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).


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to the time limitations for filing the petition.       42 Pa.C.S. § 9545(b)(1)

(emphasis added).

       Appellant admits that his PCRA petition was untimely but attempted to

circumvent the time bar by baldly asserting the “governmental interference”

and   “newly     discovered     facts/evidence”   exceptions   under   subsections

9545(b)(1)(i)-(ii).    PCRA Petition, 4/11/2017, at 2 ¶ 6.      Appellant’s PCRA

petition and brief do not plead nor prove that newly discovered facts or

evidence actually exist; they merely claim that such evidence might exist and

that the Commonwealth “interfered” by not turning over all of its files on

Appellant’s case to him, just in case something exculpatory could be

contained therein.       See id. at 2-5; Appellant’s Brief at 10.3      Such bald

assertions, without a single factual averment in support thereof, are

insufficient to plead and to prove the applicability of a timeliness exception;

thus, the PCRA court correctly determined that Appellant failed to plead and

to prove the applicability of a timeliness exception and that it lacked

jurisdiction to reach the merits of Appellant’s PCRA petition. See 42 Pa.C.S.


____________________________________________


3 To the extent that Appellant has argued that, if the court were to allow him
to access the Commonwealth’s files, including police notes and reports, he
would be able to find exculpatory evidence under Brady v. Maryland, 373
U.S. 83 (1963), the Supreme Court of Pennsylvania rejected a similar request
for discovery of the Commonwealth’s files and other notes during collateral
review in Commonwealth v. Williams, 86 A.3d 771, 788-89 (Pa. 2014) (“A
defendant’s right to discover exculpatory evidence does not include the
unsupervised authority to search through the Commonwealth’s files”; “the
mere fact that a claim sounds in Brady does not, on its own, create a special
right to PCRA discovery”).

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§ 9545(b)(1); Commonwealth v. Pollard, 911 A.2d 1005, 1007 (Pa. Super.

2006) (“Although Appellant makes bald assertions of interference by

governmental officials and after-discovered evidence, he has failed to offer

any argument regarding how these time-bar exceptions apply to his case”).

      Consequently, the PCRA court was without jurisdiction to review the

merits of Appellant’s claims and properly dismissed his petition. For the same

reasons, we lack jurisdiction to consider the merits of Appellant’s PCRA claims,

and his two outstanding motions are denied as moot.

      Order affirmed. Motions denied as moot.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/2019




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