J-S22029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA

                             Appellee

                        v.

 DARREN L. JOHNSON

                             Appellant                 No. 2116 EDA 2017


               Appeal from the PCRA Order entered June 19, 2017
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0113961-1993

BEFORE:      BENDER, P.J.E., STABILE, J., and PLATT, J.*

MEMORANDUM BY STABILE, J.:                                FILED JUNE 1, 2018

       Appellant, Darren L. Johnson, appeals pro se from an order dismissing

his sixth petition for relief under the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546. We affirm.

       On June 30, 1993, Appellant waived a jury trial, and the trial court found

him guilty of first-degree murder and possessing an instrument of crime

(“PIC”). On January 9, 1994, the court sentenced him to the mandatory term

of life imprisonment for murder and a concurrent term of 2½-5 years’

imprisonment for PIC.        Appellant filed a direct appeal, and on February 6,

1995, this Court affirmed his judgment of sentence. On August 22, 1995, our



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* Retired Senior Judge assigned to the Superior Court.
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Supreme Court denied his petition for allowance of appeal. Appellant did not

appeal to the United States Supreme Court.

      On May 14, 1996, Appellant filed a pro se PCRA petition.       The court

appointed counsel, who filed an amended petition. On September 23, 1998,

the PCRA court denied the amended petition. On October 1, 1999, this Court

affirmed, and on February 11, 2000, the Pennsylvania Supreme Court denied

Appellant’s petition for allowance of appeal.

      On March 30, 2001, Appellant filed a second PCRA petition. On August

30, 2001, the PCRA court dismissed the petition as untimely. On October 7,

2002, this Court affirmed the dismissal.

      On May 21, 2012, Appellant filed a third PCRA petition. On January 7,

2013, the PCRA court dismissed the petition as untimely. Appellant did not

appeal.

      On April 9, 2014, Appellant filed a fourth PCRA petition. On November

4, 2014, the PCRA court dismissed it as untimely. On August 5, 2015, this

Court affirmed. On April 30, 2015, while the appeal from the dismissal of his

fourth PCRA petition was pending, Appellant filed a petition for writ of habeas

corpus. On July 6, 2015, after the dismissal was affirmed, Appellant filed a

supplemental petition for writ of habeas corpus.    On January 4, 2016, the

PCRA court denied the supplemental petition, stating in an accompanying

memorandum that his claim was cognizable under the PCRA, that it was

untimely filed, and that it failed to raise any exception to the PCRA time bar.

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On January 11, 2016, Appellant filed a “Petition to Vacate a Void Judgment.”

On January 19, 2016, the PCRA court responded with a second order

dismissing the petition as untimely.     On September 7, 2016, this Court

affirmed and ruled that the PCRA court had properly dismissed the petition as

an untimely PCRA petition.

      On September 19, 2016, Appellant filed his sixth PCRA petition, the

petition presently under review, which he titled a habeas petition. On April

13, 2017, he filed a supplemental petition without leave of court. On May 4,

2017, again without leave, he filed an “Amended Post-Conviction Relief Act

Petition.” On June 19, 2017, the PCRA court dismissed of all these petitions

as untimely PCRA petitions. This appeal followed.

      Appellant raises four claims in this appeal:

      I. Did the [PCRA] trial court (err) in applying the PCRA statute to
      Appellant’s habeas petition?

      II. Whether Appellant’s [s]entencing [p]rocedure is in compliance
      with the [a]pplicable standards of the Sentencing Code?

      III. Whether the PCRA Court erred in determining that Appellant’s
      waiver of a jury trial form satisfies 42 Pa.C.S.[A.] §9711(b)’s
      sentencing procedure?

      IV. Whether the Office of Judicial Records of Philadelphia County
      interfered with the presentation of Appellant’s claims?

Appellant’s Brief at 5.

      Although Appellant lists four issues, we can find only three arguments

in his brief. For the reasons provided below, none of Appellant’s petitions is

timely under the PCRA’s one-year timeliness provisions.

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      First, Appellant argues that he was tried without a jury despite not

waiving his right to a jury trial. Appellant’s Brief at 19 (“there is no waiver of

a sentencing jury colloquy or signed sentencing jury waiver form in the notes

of testimony of January 4, 1994 or record”).        He also argues that this is

cognizable as a habeas claim, and therefore the PCRA’s time bar does not

apply. We disagree.

      It is clear that Appellant attempts to raise a claim of constitutional error,

specifically a violation of his Sixth Amendment right to a jury trial. Such claims

fall within the purview of the PCRA. See 42 Pa.C.S.A. § 9543(a)(2)(i) (PCRA

relief is available for “a violation of the Constitution of this Commonwealth or

the Constitution or laws of the United States which, in the circumstances of

the particular case, so undermined the truth-determining process that no

reliable adjudication of guilt or innocence could have taken place”). Therefore,

Appellant’s claim must be timely under the PCRA’s timeliness provisions in

order for him to obtain relief.

      The PCRA court properly dismissed this claim as untimely.              PCRA

petitions must be filed within one year of the time the judgment of sentence

becomes final.    42 Pa.C.S.A. § 9545(b).       The timeliness requirement of

§ 9545(b)(1) is jurisdictional; we cannot address the merits of an untimely

petition.   Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1267–68 (Pa.

2008). Here, Appellant’s judgment of sentence became final ninety days after

our Supreme Court denied his petition for allowance of direct appeal, or on


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November 21, 1995. 42 Pa.C.S.A. § 9545(b)(3). Appellant filed his present

petition on September 19, 2016, over twenty years after his judgment of

sentence became final. Thus, it is untimely on its face.

       Furthermore, Appellant’s petition fails to satisfy any of the three

exceptions     to   the    PCRA's     timeliness   requirements.   42   Pa.C.S.A.

§ 9545(b)(1)(i-iii).      The PCRA requires the petitioner to file any petition

invoking one or more of these exceptions “within 60 days of the date the claim

could have been presented.” 42 Pa.C.S.A. § 9545(b)(2). Appellant’s petition

does not fall within any of the three exceptions. He asserts that the newly-

discovered fact exception, 42 Pa.C.S.A. § 9545(b)(1)(ii), applied based on his

recent discovery of a news article concerning the resentencing of juveniles

serving life sentences. However, “[a] petitioner must explain why he could

not have learned the new fact(s) [upon which he bases his claim] earlier with

the exercise of due diligence.” Commonwealth v. Williams, 35 A.3d 44, 53

(Pa. Super. 2011). Appellant made no showing of due diligence or how the

news article was even relevant to his claim. He therefore fails to satisfy the

time-bar exception.

       Second, Appellant argues that his sentencing proceeding violated

42 Pa.C.S.A. § 9711(b), the statute that governs death penalty proceedings.

Even if that statutory provision applied, which does not appear to be the case,1


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1Appellant was sentenced to life imprisonment, not death, so Section 9711
does not appear pertinent.

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Appellant fails to demonstrate that this claim is timely. As explained above,

his PCRA petition is untimely on its face. Moreover, he fails to explain how

this argument is timely under any of the exceptions to the PCRA’s time-bar.

As above, he claims that the newly-discovered fact exception applies based

on his recent discovery of the news article concerning resentencing of

juveniles. He fails to explain how this article caused him to identify some

nexus between Section 9711 and his case.

      Third, Appellant claims that during trial, the prosecutor caused the trial

court to reach a “mandatory presumption” that the specific intent to kill is

inferred from the use of a deadly weapon upon a vital part of the body.

Appellant’s Brief at 15-16. Once again, this argument is untimely on its face.

Trial took place in 1993. Appellant fails to explain why he did not raise this

objection until his sixth PCRA petition in 2016, 23 years after trial.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/1/18




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