J-S07022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MAXAMILLIAN EMANUEL JOHNSON,

                            Appellant                No. 1250 MDA 2014


                  Appeal from the PCRA Order of June 24, 2014
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0003170-2008


BEFORE: BENDER, P.J.E., OLSON AND OTT, JJ.

MEMORANDUM BY OLSON, J.:                         FILED FEBRUARY 27, 2015

        Appellant, Maxamillian Emanuel Johnson, appeals from the order

entered on June 24, 2014, dismissing his first petition filed under the Post-

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        On November 9, 2009, Appellant entered a negotiated guilty plea to

robbery, criminal conspiracy, and theft by unlawful taking.1 That same day,

the trial court sentenced Appellant to serve a term of eight to 20 years in

prison and to serve a concurrent term of 20 years of probation.             The

underlying facts are as follows:

          [In the early morning hours of March 3, 2008, Appellant]
          and two co-conspirators rushed into a living room with
          firearms in hand; the three men began to kick and punch
          the victim[,] causing him to fall to the floor. During the
____________________________________________


1
    18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903(a)(1), and 3921(a), respectively.
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       attack[,] the three males removed the victim’s wallet, car
       keys, and other personal effects from his pockets. [The]
       three [men then fled] the scene in the victim’s vehicle.

       During the subsequent investigation it was discovered that a
       man by the alias [of “Black”] was a potential suspect in the
       case. [N.T. PCRA Hearing I, 9/25/12, at 28]. “Black” [was
       later] identified as Davis R. Smith[,] Jr. . . .

       [Mr. Smith] was picked up by [the] Lancaster [City] Police
       in Philadelphia . . . and brought back [to Lancaster] for
       questioning.    [N.T. PCRA Hearing, II, 9/19/13, at 8].
       During questioning[,] Mr. Smith gave a statement both
       confessing to his role in the robbery, and implicating
       [Appellant] as one of his co-conspirators.    [N.T. PCRA
       Hearing I, 9/25/12, at 26-28].

       Relying on [Mr.] Smith’s statement, [Lancaster City Bureau
       of Police] detectives arranged a photo line-up[, which
       included Appellant’s] photo, for the victim’s evaluation.
       [Id. at 27]. Prior to the night of the robbery, the victim had
       never seen[] nor spoken with [Appellant]. Despite this, the
       victim was able to [positively] identify [Appellant] as one of
       the men involved in the robbery. [Id.] . . . [The victim
       also positively identified Appellant at Appellant’s preliminary
       hearing. Id.]

       During the PCRA hearing[, Appellant’s] trial attorney, Barry
       G. Goldman, Esq. described the victim’s identification
       [testimony of Appellant during the preliminary hearing] as
       “emphatic.” [As Attorney Goldman testified:]

          [The victim] was very emphatic in his testimony and in
          his identification of [Appellant] through the photo array.

          . . . [W]hat I was trying to establish was whether there
          was an independent basis to identify [Appellant] through
          the course of events. And it was very clear in [the
          victim’s] mind that he had such an independent basis to
          identify [Appellant]. . . . [The victim] was very, very
          clear in terms of location of events, the lighting of the
          rooms, those kinds of things, and how he could
          positively identify [Appellant].


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       [Id. at 32].

       Based on the victim’s identification, [Appellant] was charged
       [with the March 3, 2008 robbery, criminal conspiracy, and
       theft by unlawful taking]. . . . [Id. at 27]. Attorney
       Goldman was appointed to represent [Appellant] on [the
       March 3, 2008 charges, as well as on a variety of other
       charges that arose out of other events and that were listed
       on separate docket numbers].         [Id. at 30].    Attorney
       Goldman met with [Appellant] on multiple occasions prior to
       his [November 9, 2009] plea. During those meetings[,
       Attorney Goldman and Appellant] discussed the evidence
       [against Appellant (including Mr. Smith’s statement to the
       police, the victim’s independent identification of Appellant
       as one of the robbers, and the victim’s preliminary hearing
       testimony, where the victim again identified Appellant as
       one of the robbers),] evaluated [Appellant’s] options[,] and
       entertained potential sentencing [scenarios] based on the
       charges. [Id. at 31-32 and 35-36]. . . .

       On November 9, [2009, Appellant] entered [] a negotiated
       [guilty plea before the trial court. During the guilty plea
       colloquy, Appellant] was appraised of his rights, and the
       rights he would [lose] by pleading guilty. [Further, during
       the colloquy,] facts supporting the robbery charge were
       placed on the record. Following a recitation of the facts[,
       Appellant] was asked if those facts were indeed “what
       happened here.” [Appellant] replied “Yes, sir.” . . .

       [On November 9, 2009, Appellant was sentenced in
       accord[ance with the negotiated plea agreement], to a
       period of not less than eight nor more than [20] years [in
       prison, with a concurrent term of 20 years of probation.
       Appellant did not file a direct appeal from his judgment of
       sentence].

       [On January 28, 2011, Appellant filed a pro se PCRA
       petition.   Within Appellant’s PCRA petition, Appellant
       averred that, on December 28, 2011, Appellant] received a
       photo-copied, handwritten affidavit in the mail.       The
       affidavit had no return address on the envelope, but
       appeared to be signed by [Appellant’s] co-conspirator, [Mr.
       Smith].


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       In the affidavit[, Mr.] Smith claim[ed] that his prior
       statement implicating [Appellant] was a lie. [Mr. Smith
       claimed] that he was under the influence of drugs when the
       statement was made[,] that the detectives knew of [(and
       used)] a sexual relationship between [Appellant] and [Mr.]
       Smith’s girlfriend as leverage against [Mr.] Smith[,] and
       that [Mr.] Smith [was promised that he] would receive a
       lighter sentence [if he] implicat[ed] [Appellant in the
       robbery].

       [Within Appellant’s PCRA petition, Appellant claimed that
       Mr. Smith’s affidavit constituted after-discovered evidence,
       which entitled Appellant to post-conviction collateral relief.
       The PCRA court appointed counsel to represent Appellant
       and counsel filed an amended PCRA petition on June 5,
       2012. Within Appellant’s amended PCRA petition, Appellant
       again claimed that Mr. Smith’s affidavit constituted after-
       discovered evidence and that the evidence supported
       Appellant’s claim that his guilty plea was “unlawfully
       induced where the circumstances make it likely that the
       inducement caused [Appellant] to plead guilty and
       [Appellant] is innocent.”       Appellant’s Amended PCRA
       Petition, 6/5/12, at 2; 42 Pa.C.S.A. § 9543(a)(2)(iii).]

       [On September 25, 2012 and September 19, 2013, the
       PCRA court held a hearing on Appellant’s PCRA petition,
       where the above-summarized evidence was introduced.
       Moreover, in preparation for both days of the hearing, the
       PCRA c]ourt made efforts to locate and subpoena Mr. Smith.
       Despite best efforts by counsel [and the PCRA] court, Mr.
       Smith could not be located. Due to his unavailability, a
       photocopy of what was believed to be Mr. Smith’s affidavit
       was entered into evidence pursuant to [Pennsylvania Rule of
       Evidence] 804(a)(5). [N.T. PCRA Hearing, II, 9/19/13, at
       5].

       [Moreover, given the accusations contained in Mr. Smith’s
       affidavit,] the Commonwealth called interviewing officer,
       Detective [Heather] Halstead, to testify about [the police
       questioning of Mr.] Smith[]. [Id. at 5-16]. During her
       testimony, Detective Halstead rebutted claims that [Mr.
       Smith] was under the influence [of drugs] at the time of his
       statement. [Id. at 8-9]. [Indeed, as Detective Halstead
       testified, Mr.] Smith had spent the previous night

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        incarcerated in Philadelphia, and was placed in a holding cell
        for several hours before speaking with the [Lancaster City]
        detectives. [Id. at 9]. [Detective Halstead testified that] at
        all times during questioning[, Mr.] Smith appeared lucid and
        coherent, and [that he] showed no signs of being under the
        influence of narcotics. [Id.] [Detective Halstead further
        testified that] she had no knowledge of any feud between
        [Mr.] Smith and [Appellant] regarding [Appellant’s]
        relationship with [Mr.] Smith’s girlfriend. [Id. at 15]. . . .
        [Finally,] Detective Halstead [testified] that at no time
        during the interrogation process was [Mr.] Smith promised
        a lighter sentence for implicating [Appellant]. [Id.]

PCRA Court Opinion, 9/5/14, at 2-5 (internal footnotes omitted and some

internal capitalization omitted).

      By order dated June 24, 2014, the PCRA court denied Appellant post-

conviction collateral relief.   Appellant filed a timely notice of appeal and

Appellant now raises the following claim to this Court:

        Whether the [PCRA c]ourt erred in denying post-conviction
        relief on the basis of an unlawfully induced guilty plea,
        where the primary witness against Appellant recanted his
        incriminating statement after the plea?

Appellant’s Brief at 4.

      As we have stated:

        [t]his Court’s standard of review regarding an order
        dismissing a petition under the PCRA is whether the
        determination of the PCRA court is supported by evidence of
        record and is free of legal error. In evaluating a PCRA
        court’s decision, our scope of review is limited to the
        findings of the PCRA court and the evidence of record,
        viewed in the light most favorable to the prevailing party at
        the trial level. We may affirm a PCRA court’s decision on
        any grounds if it is supported by the record.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010) (internal

citations omitted).

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     The PCRA contains a jurisdictional time-bar, which is subject to limited

statutory exceptions.   This time-bar demands that “any PCRA petition,

including a second or subsequent petition, [] be filed within one year of the

date that the petitioner’s judgment of sentence becomes final, unless [the]

petitioner pleads [and] proves that one of the [three] exceptions to the

timeliness requirement . . . is applicable.” Commonwealth v. McKeever,

947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b).             Further,

since the time-bar implicates the subject matter jurisdiction of our courts,

we are required to first determine the timeliness of a petition before we

consider the underlying claims. Commonwealth v. Yarris, 731 A.2d 581,

586 (Pa. 1999). Our Supreme Court has explained:

        the PCRA timeliness requirements are jurisdictional in
        nature and, accordingly, a PCRA court is precluded from
        considering untimely PCRA petitions.               See, e.g.,
        Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)
        (stating that “given the fact that the PCRA's timeliness
        requirements are mandatory and jurisdictional in nature, no
        court may properly disregard or alter them in order to reach
        the merits of the claims raised in a PCRA petition that is
        filed in an untimely manner”); Commonwealth v. Fahy,
        737 A.2d 214, 220 (Pa. 1999) (holding that where a
        petitioner fails to satisfy the PCRA time requirements, this
        Court has no jurisdiction to entertain the petition). [The
        Pennsylvania Supreme Court has] also held that even where
        the PCRA court does not address the applicability of the
        PCRA timing mandate, th[e court would] consider the issue
        sua sponte, as it is a threshold question implicating our
        subject matter jurisdiction and ability to grant the requested
        relief.

Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003).




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     In the case at bar, since Appellant did not file a direct appeal, his

judgment of sentence became final on December 10, 2009 – which was 31

days after Appellant was sentenced in open court and the time for filing a

direct appeal to this Court expired.   See Pa.R.A.P. 903(a); 42 Pa.C.S.A.

§ 9545(b)(3). Appellant then had until December 10, 2010 to file a timely

PCRA petition. 42 Pa.C.S.A. § 9545(b). As Appellant did not file his current

petition until January 28, 2011, the current petition is manifestly untimely

and the burden thus fell upon Appellant to plead and prove that one of the

enumerated exceptions to the one-year time-bar applied to his case. See

42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Perrin, 947 A.2d 1284,

1286 (Pa. Super. 2008) (to properly invoke a statutory exception to the one-

year time-bar, the PCRA demands that the petitioner properly plead all

required elements of the relied-upon exception).

     Here, Appellant has attempted to invoke the “after-discovered facts”

exception to the time-bar. This statutory exception provides:

        (1) 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 that:

                                    ...

           (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[;]

        (2) Any petition invoking an exception provided in
        paragraph (1) shall be filed within 60 days of the date the
        claim could have been presented.

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42 Pa.C.S.A. § 9545(b).

     The PCRA’s after-discovered facts exception permits the filing of a

petition outside of the one-year time-bar if the petitioner pleads and proves

that 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.” 42 Pa.C.S.A. § 9545(b)(1)(ii). Our Supreme Court has explained

that the after-discovered facts exception “does not require any merits

analysis of the underlying claim. Rather, the exception merely requires that

the ‘facts’ upon which such a claim is predicated must not have been known

to appellant, nor could they have been ascertained by due diligence.”

Bennett, 930 A.2d at 1271 (internal quotations and citation omitted),

quoting Commonwealth v. Lambert, 884 A.2d 848, 852 (Pa. 2005).

     In the case at bar, Appellant averred that he received an affidavit from

Mr. Smith on December 28, 2011, in which Mr. Smith declared: that, when

he told the Lancaster police that Appellant had participated in the March 3,

2008 robbery, he was not telling the truth; that “[t]he statement [he] made

[to the police] was 100% fabricated to insure that [Detective Heather]

Halstead of the Lancaster Police Dep[artment] could get [Appellant];” that

Detective Halstead “wrote up the whole statement and told [him] to sign it

[so that he] would receive a lighter sentence;” that, when he gave the

statement to Detective Halstead, he was high on PCP; that he told Detective

Halstead that he was high on PCP at the time he made the statement, but

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Detective Halstead told him not “to tell [anyone] because she would then

take back the deal;” that, at the time he made the statement to the police,

he had a personal vendetta against Appellant “because [Appellant] was

having sex with [his] girlfriend;” and, that Detective Halstead knew about

his vendetta against Appellant and “used [it] to persuade [him] to conspire

against [Appellant].” Mr. Smith’s Affidavit, dated 12/6/11, at 1. Based upon

these “after-discovered facts,” Appellant claimed that his guilty plea was

“unlawfully induced where the circumstances make it likely that the

inducement caused [Appellant] to plead guilty and [Appellant] is innocent.”

Appellant’s   Amended    PCRA   Petition,   6/5/12,    at   2;   42   Pa.C.S.A.

§ 9543(a)(2)(iii).

      Setting aside the underlying merits of Appellant’s claim, Appellant has

properly invoked the “after-discovered facts” exception to the PCRA’s one-

year time-bar. This is because Appellant pleaded and proved that: 1) the

facts upon which the claim is predicated (Mr. Smith’s supposed “recantation”

of his prior statement to the police) “were unknown to the petitioner and

could not have been ascertained by the exercise of due diligence” and 2)

Appellant raised his “after-discovered facts” claim on January 28, 2011,

which was within 60 days of the date that Appellant first became aware of

the facts upon which his claim is predicated.         C.f. Commonwealth v.

Davis, 86 A.3d 883, 891 (Pa. Super. 2014) (holding that the PCRA’s “after-

discovered evidence” exception is satisfied where a witness submits an


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affidavit that recants earlier trial testimony); Commonwealth v. Medina,

92 A.3d 1210, 1219-1220 (Pa. Super. 2014) (en banc) (same). Thus, we

have jurisdiction to consider the merits of Appellant’s claim. However, we

agree with the PCRA court that Appellant’s underlying claim is meritless.

      In the case at bar, the PCRA court held a two-day hearing on

Appellant’s claim; the first day of the hearing occurred on September 25,

2012 and the second day of the hearing occurred approximately one year

later, on September 19, 2013. As the PCRA court explained, in preparation

for the hearing, counsel and the PCRA court “made efforts to locate and

subpoena [the affiant,] Mr. Smith.” PCRA Court Opinion, 9/5/14, at 4. Yet,

“[d]espite best efforts by counsel[ and the PCRA c]ourt, Mr. Smith could not

be located” during the entire time that Appellant’s PCRA petition remained

pending. Id.

      Nevertheless, during the PCRA hearing, the PCRA court admitted Mr.

Smith’s affidavit as evidence.      N.T. PCRA Hearing, II, 9/19/13, at 5.

Further, the PCRA court heard testimony from Appellant, Lancaster City

Detective Heather Halstead, and Appellant’s trial counsel, Barry Goldman,

Esquire. N.T. PCRA Hearing I, 9/25/12, at 3-47. After considering all of this

evidence, the PCRA court concluded: 1) that Mr. Smith’s affidavit was not

credible; and 2) even if Mr. Smith’s affidavit were credible, Appellant’s guilty

plea was not induced by Mr. Smith’s statement to the police, as the victim




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independently and unequivocally identified Appellant as one of the robbers.

PCRA Court Opinion, 9/5/14, at 6-7.

      The record thoroughly supports the PCRA court’s factual findings and

conclusions.

      Initially, the record supports the PCRA court’s conclusion that the

statements contained in Mr. Smith’s affidavit were not credible. Certainly,

during the PCRA hearing, the PCRA court heard testimony from Detective

Halstead.   As was summarized above, Detective Halstead refuted almost

every single substantive allegation contained in Mr. Smith’s affidavit.

Specifically, Detective Halstead testified: that Appellant was not (and could

not have been) under the influence of drugs at the time of his initial

statement to the police; that Mr. Smith freely answered her questions; that

she transcribed Mr. Smith’s answers and Mr. Smith later reviewed the

statements to ensure their accuracy; that she had no knowledge that there

was any animosity between Mr. Smith and Appellant; and, that she did not

promise Mr. Smith a lighter sentence if Mr. Smith implicated Appellant in the

robbery. N.T. PCRA Hearing II, 9/19/13, at 5-15. The PCRA court credited

Detective Halstead’s testimony.       PCRA Court Opinion, 9/5/14, at 6-7.

Accordingly, the PCRA court did not believe the statements contained in Mr.

Smith’s affidavit. Id.

      The PCRA court’s credibility determinations were within its province.

Moreover, since the PCRA court credited Detective Halstead’s testimony and


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since the PCRA court, consequently, determined that the statements

contained in Mr. Smith’s affidavit were false, the PCRA court properly denied

Appellant post-conviction collateral relief.   As a result of the PCRA court’s

credibility determinations, Appellant was unable to prove that his guilty plea

was “unlawfully induced” or that he was actually “innocent” of the crimes.

See 42 Pa.C.S.A. § 9543(a)(2)(iii).

      Further, we conclude that the PCRA court was within its discretion to

deny Appellant post-conviction collateral relief, based upon the separate

ground that Appellant failed to prove that his guilty plea was “induced” by

Mr. Smith’s police statement. See PCRA Court Opinion, 9/5/14, at 6. To be

sure, the evidence demonstrates that the victim independently and

“emphatically” identified Appellant as one of the three perpetrators – and

that the victim did so both in a photographic array and during Appellant’s

preliminary hearing. See N.T. PCRA Hearing, 9/25/12, at 31-34. Since the

evidence demonstrates that Appellant’s guilty plea was based upon the

totality of the Commonwealth’s case against him – and since Appellant’s trial

attorney testified that the victim’s identification testimony was a significant

factor in Appellant’s decision to plead guilty – the PCRA court was within its

discretion, as fact-finder, to conclude that Appellant’s guilty plea was

“principal[ly]” induced by the victim’s identification of Appellant as one of

the perpetrators.   PCRA Court Opinion, 9/5/14, at 6; N.T. PCRA Hearing,




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9/25/12, at 38.    Therefore, Appellant’s claim that Mr. Smith’s statement

“induced” him to plead guilty fails.

      Order affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/2015




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