J-S47040-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ELWOOD JOHNSON

                            Appellant                No. 503 EDA 2014


               Appeal from the PCRA Order of January 17, 2014
             In the Court of Common Pleas of Montgomery County
               Criminal Division at No.: CP-46-CR-0009065-2006


BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                         FILED OCTOBER 22, 2014

       Elwood Johnson appeals the order entered on January 17, 2014,

dismissing his fourth petition under the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-46. In the underlying case, Johnson was convicted by a

jury of two counts each of possession of a controlled substance, corrupt

organizations, and criminal use of a communication facility, and one count

each of possession of a controlled substance with intent to deliver, criminal

conspiracy, and dealing in proceeds of unlawful activities.1 We affirm.

       In our August 6, 2010 memorandum affirming Johnson’s judgment of

sentence on direct appeal, we set forth the following abbreviated factual and

procedural history of this case:
____________________________________________


1
     35 P.S. § 780-113(a)(16); 18 Pa.C.S. §§ 911, 7512; 35 P.S. § 780-
113(a)(30); and 18 Pa.C.S. § 903, 5111, respectively.
J-S47040-14


     In September 2006, the authorities began investigating
     [Johnson’s] involvement in a drug trafficking organization led by
     Jose Cabrera. A confidential informant (“Informant 1”) told the
     authorities [Johnson] possessed and sold cocaine.              The
     authorities subsequently used Informant 1 to conduct three
     controlled purchases of narcotics from [Johnson]. During each
     transaction, [Johnson] utilized the same black Honda. Through
     surveillance, the police confirmed [Johnson] would often travel in
     this vehicle to his mother’s residence at 1317 Locust Street in
     Norristown. In October 2006, a second confidential informant
     (“Informant 2”) told police [Johnson] stored illegal drugs at 1317
     Locust Street.

     The authorities subsequently obtained court orders to intercept
     the telephone conversations of [Johnson], Mr. Cabrera, Abraham
     Martinez, and other members of the Cabrera organization. The
     intercepted telephone conversations revealed [Johnson] had
     purchased cocaine from Mr. Cabrera on October 12, 2006.
     Conversations between [Johnson] and Mr. Cabrera confirmed
     [Johnson] was selling this cocaine, and [Johnson] anticipated
     purchasing additional cocaine from Mr. Cabrera. On October 25,
     2006, the authorities executed a search warrant at 1317 Locust
     Street, recovering 248.41 grams of cocaine. That same day, the
     authorities raided other properties associated with the Cabrera
     organization. The authorities also arrested Mr. Cabrera and
     Mr. Martinez, both of whom later agreed to testify against
     [Johnson] at trial.

     On December 24, 2007, [Johnson] filed a pretrial motion to
     suppress the evidence obtained during the search of 1317 Locust
     Street. In his motion, [Johnson] argued the police illegally
     obtained the evidence, because probable cause did not exist to
     support the issuance of the search warrant. [Johnson] further
     argued     the     search     warrant     contained    material
     misrepresentations and omissions. On September 3, 2008, the
     court denied [Johnson’s] suppression motion.

     Following trial, a jury found [Johnson] guilty of [the above-
     stated counts]. On February 5, 2009, the court sentenced
     [Johnson] to an aggregate term of sixteen and one-half (16½) to
     thirty-three (33) years’ imprisonment. On February 11, 2009,
     [Johnson] filed post-sentence motions, challenging the weight
     and sufficiency of the evidence and the discretionary aspects of
     his sentence.     The court denied [Johnson’s] post-sentence
     motions on June 25, 2009.

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Commonwealth v. Johnson, 2033 EDA 2009, slip op. at 1-3 (Pa.

Super. August 6, 2010) (unpublished memorandum).

     On direct appeal, Johnson challenged the sufficiency and the weight of

the evidence to sustain his convictions. Johnson also asserted a third issue,

challenging the trial court’s ruling denying his motion to suppress evidence

obtained from his residence. We rejected all three issues, and, on March 9,

2011, our Supreme Court denied Johnson’s petition for allowance of appeal.

See Commonwealth v. Johnson, 20 A.3d 485 (Pa. 2011) (table).

     The PCRA court related the subsequent procedural history as follows:

     On April 29, 2011, [Johnson] filed, pro se, a timely first petition
     pursuant to the [PCRA], raising numerous claims of
     ineffectiveness [of counsel] against [trial counsel]. By order
     dated May 4, 2011, the undersigned appointed Henry S. Hilles,
     III, Esquire, to represent [Johnson] as PCRA counsel.           On
     July 26, 2011, Mr. Hilles forwarded to this court a petition to
     withdraw as counsel and a “no merit” letter, pursuant to
     Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
     banc), stating Mr. Hilles’ opinion that [Johnson] was not entitled
     to PCRA relief.

     On September 26, 2011, [Johnson] filed, pro se, a document
     entitled “Supplemental PCRA Motion.” This filing appeared to
     consist entirely of a collection of documents that had already
     been filed of record. [Johnson] asked this court to consider
     these items in determining his PCRA petition, and we did so. A
     copy of [Johnson’s] September 26, 2011 filing was forwarded by
     the court to Mr. Hilles.

     Following our own independent review of the record, we
     determined that [Johnson] was not entitled to PCRA relief, and—
     on October 3, 2011—we notified [Johnson], in accordance with
     Pa.R.Crim.P. 907(1), of this court’s intention to dismiss his first
     PCRA petition without a hearing. On October 26, 2011, the
     undersigned received a copy of [Johnson’s] pro se response to
     the court’s Rule 907(1) Notice. Following review, we determined


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     that said response raised no issue entitling [Johnson] to PCRA
     relief. Accordingly, by final order dated December 12, 2011, the
     undersigned dismissed [Johnson’s] first PCRA petition and
     granted Mr. Hilles’ petition to withdraw as [Johnson’s] PCRA
     counsel.

     On December 27, 2011, [Johnson] filed a timely notice of appeal
     to the Superior Court. On September 20, 2012, [Johnson] filed,
     pro se, a second PCRA petition. The undersigned dismissed this
     second PCRA petition without prejudice as premature, given that
     it was filed while appellate review of the dismissal of [Johnson’s]
     first PCRA petition remained pending. See Commonwealth v.
     Lark, 746 A.2d 585 (Pa. 2002).

     By per curiam memorandum dated December 18, 2012, the
     Superior Court vacated our order dismissing [Johnson’s] first
     PCRA petition on the grounds that the record did not reflect that
     PCRA counsel—Mr. Hilles—had reviewed and addressed either
     [Johnson’s] September 26, 2011 “Supplemental PCRA Motion” or
     [Johnson’s] pro se October 26, 2011 response to this court’s
     Rule 907(1) Notice, which [Johnson] had filed before Mr. Hilles
     was granted leave to withdraw as [Johnson’s] counsel. The
     Superior Court remanded the case “for the reappointment of
     counsel to review [Johnson’s] pro se correspondence, and, if
     necessary, amend his initial Finley letter in order to document
     his reasons why [Johnson’s] claims are meritless.”

     In accordance with the directive of the Superior Court, the
     undersigned reappointed Mr. Hilles as [Johnson’s] PCRA counsel
     by order dated December 20, 2012, directing Mr. Hilles to review
     [Johnson’s] “Supplemental PCRA Motion” and [Johnson’s]
     response to the court’s Rule 907(1) Notice.

                                  ****

     On May 31, 2013, [following a hearing,] the undersigned entered
     this [c]ourt’s final order dismissing [Johnson’s] first PCRA
     petition, stating our reasoning for the dismissal at some length
     in our order.4 [Johnson] did not appeal from our May 31, 2013
     final order.

     _________________
        4
           Our order also dismissed as premature and without
        prejudice a third PCRA petition that [Johnson] had filed on



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          December 31, 2012, before litigation of his first PCRA
          petition had concluded. See Lark, supra.

       On July 18, 2013, [Johnson] filed, pro se, the instant PCRA
       petition, his fourth.     On September 17, 2013, the
       Commonwealth filed an Answer and Motion to Dismiss said
       petition. On September 30, 2013, [Johnson] filed a response to
       the Commonwealth’s Answer and Motion to Dismiss.

       Upon review of the voluminous record in this case, the
       undersigned determined that the claims raised in [Johnson’s]
       fourth PCRA petition were time-barred. Accordingly, on January
       2, 2014, the undersigned entered this court’s Notice pursuant to
       Pa.R.Crim.P. 907(1), informing [Johnson] of our intention to
       dismiss his fourth PCRA petition without a hearing. [Johnson]
       filed a timely response to our Rule 907(1) Notice. Determining
       that said response failed to establish [Johnson’s] entitlement to
       PCRA relief or to raise any issue requiring a hearing, the
       undersigned entered this court’s final order dismissing
       defendant’s fourth PCRA petition on January 17, 2014.

       [Johnson] filed his notice of appeal to the Superior Court of
       Pennsylvania on February 11, 2014. On February 25, 2014,
       [Johnson] filed his [concise] statement of errors complained of
       on appeal, pursuant to Pa.R.A.P. 1925(b).

PCRA Court Opinion (“P.C.O.”), 4/14/2014, at 2-5 (citations modified;

footnote omitted; emphasis in original).

       Before this Court, Johnson raises the following issues:

       I.     Did not the PCRA court err and deny [Johnson] due
       process of law under the state and federal constitution[s] and
       [Johnson’s] right to a proper legal evaluation of the reliability
       and effect of [Brady] material[2] by dismissing [Johnson’s]
       petition as untimely?
____________________________________________


2
      See Brady v. Maryland, 373 U.S. 83, 87 (1963) (“[S]uppression by
the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.”).



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      II.    Did not the PCRA court err by dismissing [Johnson’s] PCRA
      petition as untimely where [Johnson] asserts that the evidence
      [Johnson] presented in [Johnson’s] PCRA petition constitutes
      previously undisclosed [Brady] material and after-discovered
      evidence placing [Johnson] squarely within the timeliness
      exceptions to the one-year limitation period?

Brief for Johnson at 3.

      Our standard of review on appeal from an order denying a PCRA

petition is whether the determination of the PCRA court is supported by the

evidence of record and is free of legal error.     See Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). The PCRA court’s findings will not

be disturbed unless there is no support for the findings in the certified

record.     See Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.

Super. 2001).    However, before we may review the PCRA court’s decision

substantively, we must confirm our jurisdiction to consider Johnson’s

petition.

      It is well-established that the PCRA time limits are jurisdictional, and

must be strictly construed, regardless of the potential merit of the claims

asserted.     Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. Super.

2011); Commonwealth v. Murray, 753 A.2d 201, 202-03 (Pa. 2000),

abrogated on other grounds by Commonwealth v. Brown, 943 A.2d 264

(Pa. 2008).     “[N]o court may properly disregard or alter [these filing

requirements] in order to reach the merits of the claims raised in a PCRA

petition that is filed in an untimely manner.”   Murray, 753 A.2d at 203;

see Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).


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      Despite facial untimeliness, a tardy PCRA petition nonetheless will be

considered timely if (but only if) the petitioner pleads and proves one or

more of the exceptions to the one-year time             limit enumerated in

subsection 9545(b) of the PCRA, which 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:

         (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.

      (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.

42 Pa.C.S. § 9545(b).    When an appellant files a facially untimely petition

under the PCRA, and fails to plead and prove one or more of the exceptions

to the PCRA’s one-year jurisdictional time limit, the petition is untimely and

we must deny the appellant relief.      Gamboa-Taylor, 753 A.2d at 783.

Moreover, as reflected in the plain language of subsection 9545(b)(2), even

when one of the exceptions may apply to a given petition, it will excuse the



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untimeliness only if the petition was filed within sixty days of the date that

the conditions underlying the exception came to light. Id. at 784.

      The PCRA court aptly summarized the substance of [Johnson’s]

attempts to invoke the government interference and newly-discovered fact

exceptions to the PCRA’s jurisdictional one-year time bar as follows:

      [Johnson’s] first claim is that the Commonwealth violated
      Pa.R.Crim.P. 564, governing amendments to the bills of
      information, by filing a complaint on November 24, 2006 that
      included charges that were not included in a complaint
      previously filed on October 30, 2006 that was subsequently
      withdrawn. [Johnson] contends that he was entitled to dismissal
      of the additional charges in the November 24, 2006 complaint
      because of the alleged violation of Rule 564, and because the
      affidavit of probable cause attached to the October 30, 2006
      complaint did not establish probable cause for the additional
      charges added in the November 24, 2006 complaint.

      [Johnson] avers that he was not aware of the existence of his
      claim concerning the alleged violation of [Rule 564] until August
      17, 2012, when he received a copy of the October 30, 2006
      complaint for the first time.     [Johnson] contends that this
      October 30, 2006 complaint constitutes newly-discovered
      evidence entitling him to a review on the merits of his claim
      under authority of § 9545(b)(1)(ii). [Johnson] further contends
      that the Commonwealth’s “failure” to provide him with a copy of
      the October 30, 2006 complaint prior to August 17, 2012
      constitutes a violation of [Brady, supra], establishing
      governmental interference with the presentation of his claim and
      entitling him to a review on the merits of the claim under
      authority of § 9545(b)(i).

      [Johnson’s] second claim is that his trial counsel . . . provided
      him with ineffective assistance by stipulating to the entry into
      evidence at [Johnson’s] April 28, 2008 suppression hearing of a
      lab report relating to criminal activity with which [Johnson] was
      not charged. [Johnson] avers that he was not aware of this
      claim until September 21, 2012, when he received a copy of the
      lab report for the first time. [Johnson] contends that the lab
      report constitutes newly-discovered evidence entitling him to a

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      review of the merits of his claim under authority of
      § 9545(b)(1)(ii).     [Johnson] further contends that the
      Commonwealth’s “failure” to provide him with a copy of the lab
      report prior to September 21, 2012 constitutes a violation of
      [Brady, supra], establishing governmental interference with the
      presentation of his claim and entitling him to a review on the
      merits of the claim under authority of § 9545(b)(1)(i).

P.C.O. at 8-9.

      The PCRA court determined that Johnson failed to plead and prove that

either exception applied to either claim, because Johnson failed to bring

these claims within sixty days of the date the claim could have been

presented. In effect, the PCRA court rejected Johnson’s reliance on his 2012

receipt of the documents in question as the relevant time for triggering the

applicable sixty-day clock.

      With respect to the first issue, pertaining to Johnson’s alleged

ignorance of the October 30, 2006 complaint until August 2012, the PCRA

court reasoned as follows:

      [Johnson] has acknowledged being present at his preliminary
      arraignment on November 6, 2006, at which time he was
      informed of the charges as set forth in the October 30, 2006
      complaint. [Johnson] has further acknowledged being present at
      his preliminary arraignment on November 24, 2006, at which
      time he was informed of the charges against him as set forth in
      the November 24, 2006 complaint—including the additional
      charges of which he was not informed on November 6, 2006
      because they were not present in the October 30, 2006
      complaint. [Johnson] thus knew on November 24, 2006 that he
      faced charges in addition to the charges of which he was
      informed on November 6, 2006; [Johnson] did not require a
      copy of the October 30, 2006 complaint to inform him of this
      fact. Any PCRA claim related to the propriety of the additional
      charges included in the November 24, 2006 complaint thus
      could—and should, through the exercise of reasonable


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      investigation and due diligence—have been raised in [Johnson’s]
      first, timely PCRA petition.

Id. at 10-11 (emphasis in original).      Thus, the PCRA court found that,

because Johnson failed to plead and prove that he had raised the claim at

issue within sixty days of when he could have done so, he could not gain the

benefit of an exception to the PCRA’s one-year time limit.

      Johnson’s second issue concerns lab evidence that was admitted

against him at trial, which allegedly constitutes exculpatory or impeachment

evidence.   He argues that he received this evidence for the first time in

September of 2012.       The PCRA court found that this claim, too, was

untimely raised for want of diligence:

      [Johnson] contends that [trial counsel] was ineffective for
      stipulating to the entry into evidence of this lab report because it
      related to criminal activity with which [Johnson] was not
      charged. [Johnson] contends that he could not have raised this
      claim in a timely fashion because he was not provided with a
      copy of the lab report until September 21, 2012. . . .

      The record reflects on its face that [Johnson] was present in the
      courtroom during his April 28, 2012 suppression hearing. The
      issues presented were whether an affidavit requesting a warrant
      for a search of the residence of [Johnson’s] mother . . .
      established the requisite probable cause and, if so, whether that
      probable cause had “gone stale.” It was the Commonwealth’s
      contention that [Johnson] had sold cocaine that he had removed
      from the residence on three occasions to a confidential informant
      in “controlled buys.”     Although [Johnson] was not charged
      criminally for these controlled buys, the buys were offered by the
      Commonwealth as supporting the existence of probable cause
      for a search of the residence.         During the course of the
      suppression hearing, [trial counsel]—in [Johnson’s] presence—
      stipulated to a lab report that determined that the substance the
      Commonwealth contended was exchanged during the controlled
      buys was, in fact, 8.49 grams of cocaine.


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     Given [Johnson’s] presence at the time the stipulation was
     entered into—and explained—on the record, [Johnson] plainly
     cannot be heard to contend that it was not until September 21,
     2012 that he learned that a lab report referencing criminal
     activity for which he was not charged had been entered into
     evidence at his suppression hearing.       Far from providing
     [Johnson] with a newly-discovered fact, [Johnson’s] receipt of
     the lab report on September 21, 2012 simply provided him with
     a new source for a fact of which he had been aware since
     April 28, 2008. Any PCRA claim related to the entry of the lab
     report into evidence at [Johnson’s] April 28, 2008 suppression
     hearing could, and should, have been raised in [Johnson’s] first
     timely PCRA petition.

Id. at 12-13.

     The PCRA court’s characterization of the procedural history and

Johnson’s awareness of the events is borne out by the record. Indeed, by

Johnson’s own reckoning, he learned of the existence of the October 30,

2006 complaint in May 2010, when a magisterial district judge transmitted

to Johnson a copy of a docketing transcript that referred to the October 30,

2006 complaint. It was this discovery that occasioned what he asserts was

a campaign lasting more than two years to obtain a copy of that complaint.

Brief for Johnson at 11. Similarly, Johnson asserts that he only obtained the

lab report at issue in September 2012 after requesting it “with a Federal

subpoena from the National Medical Lab” earlier in that same month, “after

requesting a copy from the Montgomery County District Attorney’s Office

and the Common Pleas Court for over two (2) years.” Id. at 13. Thus, by

his own assertions, Johnson was aware of the report, and presumably was

interested in its contents, at least as early as September of 2010.       In

essence, Johnson concedes that he was aware of both documents, and

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desirous of obtaining and reviewing them, at least as early as May 2010

(with respect to the initial criminal complaint) and September 2010 (with

respect to the lab report).

      These dates plainly precede multiple filings associated with Johnson’s

first PCRA petition.   Johnson’s pro se first PCRA petition was filed on April

29, 2011, well after he took an interest in both of the documents upon which

he founds the instant claims for relief. Appointed PCRA counsel filed its “no

merit” letter on May 4, 2011, later still. And it was not until July 26, 2011

that Johnson filed a pro se “Supplemental PCRA Motion.” Johnson does not

assert, and the record does not suggest, that Johnson raised either of these

issues in any of those filings, either directly or by reference to his desire

(and efforts) to obtain those documents.

      This situates Johnson on the horns of a dilemma, either of which is

fatal to his claims: If he did raise any aspect of the instant concerns in his

first PCRA petition, the PCRA’s bar on the relitigation of issues that have

been “raised and decided in a proceeding collaterally attacking the conviction

or   sentence”   would    preclude   review   of   those   same   issues   now.

See 42 Pa.C.S. § 9544(a)(3). Conversely, if he did not in any way address

himself to concerns of which he plainly was aware at the time he filed his

first petition, the issues would be waived under the PCRA because Johnson

“could have raised it but failed to do so before trial, at trial, during unitary

review, on appeal or in a prior state post-conviction proceeding.” 42 Pa.C.S.

§ 9544(b).

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       Johnson does not dispute that he was present and informed of the

charges contained in the Commonwealth’s October 30, 2006 criminal

complaint at his first arraignment on November 6, 2006, and that he was

present and informed of the charges contained in the Commonwealth’s

amended or substituted criminal complaint of November 24, 2006 at his

second arraignment on November 24. The same essential reasoning applies

to the complained-of lab report. Johnson does not dispute his presence at

the 2008 pre-trial suppression hearing at which trial counsel stipulated to

the admission of the report, the substance of which was addressed at that

hearing.    While counsel’s stipulation effectively foreclosed challenging the

report’s admission before or during trial or on direct appeal, it could have

been presented as a basis for an ineffective assistance of counsel claim in

Johnson’s first petition.3
____________________________________________


3
      As well, the information upon which the after-discovered fact exception
is invoked “must not be of public record and not be facts that were
previously known but presented through a newly discovered source.”
Commonwealth v. Edminston, 65 A.3d 339, 352 (Pa. 2013). Both of the
documents in question were of record, and thus constitute public records.
However, that fact does not necessarily foreclose Johnson’s appeal to the
government obstruction exception to the time bar, insofar as the
government, by way of obstructive behavior, may undermine the basis for
the public records rebuttal of a newly-discovered fact argument: After all, if
the public records in question will not be disclosed by a government agency,
as Johnson alleges in this case, the records are not “public” in the strong
sense, especially for an inmate somewhat at the mercy of officials in
possession of the documents in question.           In any event, this latter
observation does not relieve Johnson of establishing that he did not have
prior knowledge of the subject documents sufficient to enable him to pursue
these issues in his timely first PCRA petition.



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       The exceptions to the PCRA time bar are limited and to be construed

strictly.   Moreover, it is the petitioner’s burden to plead and prove the

application of one or more exceptions to the claims he wishes to bring in a

facially untimely petition to establish the PCRA court’s jurisdiction. It is not

our place to interpolate arguments on behalf of a litigant where none is

ventured by the litigant.       See In re S.T.S., Jr., 76 A.3d 24, 42

(Pa. Super. 2013) (quoting Commonwealth v. B.D.G., 959 A.2d 362, 371-

72 (Pa. Super. 2008)) (“This Court is neither obliged, nor even particularly

equipped, to develop an argument for a party.”). Consequently, we find that

the PCRA court did not err or abuse its discretion in finding that it lacked

subject matter jurisdiction over Johnson’s fourth petition under the PCRA

and dismissing Johnson’s petition on that basis.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/2014




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