J-S16017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

AKIL JOHNSON

                            Appellant                 No. 757 WDA 2016


                  Appeal from the PCRA Order April 22, 2016
                 in the Court of Common Pleas of Blair County
              Criminal Division at No(s): CP-07-CR-0001026-2004


BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY RANSOM, J.:                                  FILED MAY 22, 2017

        Appellant, Akil Johnson, appeals from the order entered April 22,

2016, denying as untimely his serial petition for collateral relief filed under

the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. We affirm.

        In August 2005, a jury convicted Appellant of fourteen counts of

possession with intent to deliver crack cocaine, four counts of dealing in

proceeds of unlawful activity, one count of criminal conspiracy, one count of

corrupt organizations/conducting an enterprise, and one count of corrupt

organizations/conspiracy.1 Appellant was sentenced to an aggregate term of

forty-nine to ninety-eight years of incarceration.


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1
  See 35 P.S. § 780-113(a)(30); 18 Pa.C.S. § 5111(a)(1), 903, 7512(a),
911(b)(1), respectively.


*
    Retired Senior Judge assigned to the Superior Court.
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      Appellant timely appealed, and this Court affirmed his judgment of

sentence on August 9, 2006. See Commonwealth v. Johnson, 909 A.2d

880 (Pa. Super. 2006) (unpublished memorandum).           Appellant did not

petition for allowance of appeal with the Pennsylvania Supreme Court.

      In October 2006, Appellant pro se timely filed a petition seeking PCRA

relief. Appellant’s petition was dismissed, and the dismissal was affirmed on

appeal. See Commonwealth v. Johnson, 972 A.2d 554 (Pa. Super. 2009)

(unpublished memorandum).

      In June 2012, Appellant pro se filed a second PCRA petition, arguing

that he met the newly-discovered facts exception. Following an evidentiary

hearing, the court dismissed Appellant’s petition as untimely filed.    This

dismissal was affirmed on appeal.    See Commonwealth v. Johnson, 83

A.3d 1080 (Pa. Super. 2013) (unpublished memorandum), appeal denied,

85 A.3d 483 (Pa. 2014).

      In November 2014, Appellant filed a motion to modify his sentence;

the PCRA court dismissed this motion.        Appellant did not appeal the

dismissal.

      On March 28, 2015, Appellant pro se filed a third PCRA petition.

Appointed counsel filed an amended petition, raising issues of trial and

appellate counsel ineffectiveness, and attempting to plead the newly-

discovered facts exception to the time bar, averring that Appellant had

newly-discovered information that a Commonwealth investigator had been

involved in a romantic relationship with a Commonwealth witness.         See

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Amended PCRA Petition, 2/6/16, at ¶ 38-39. The petition did not articulate

details regarding Appellant’s discovery of the information, nor did it plead

Appellant’s due diligence in attempting to discover said information.

Appellant did not request leave to amend the petition.      In April 2016, the

PCRA court dismissed the petition as untimely filed.

       Appellant timely appealed; the PCRA court did not order him to file a

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

       On appeal, Appellant raises a single issue for our review:

       1. Whether the [PCRA court] erred in denying and dismissing
       [Appellant’s] amended PCRA petition without an evidentiary
       hearing in as much as the amended PCRA petition raised
       material issues of fact on its claims which had merit?

Appellant’s Brief at 4 (unnecessary capitalization omitted).2


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2
  Appellant also claims that the court erred in failing to send notice pursuant
to Pa.R.Crim.P. 907 that his petition would be dismissed without a hearing.
See Pa.R.Crim.P. 907. The docket supports this contention. However, the
failure to issue a Rule 907 notice does not automatically warrant reversal,
especially where Appellant’s petition is patently untimely.                See
Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013); see also
Commonwealth v. Pursell, 749 A.2d 911, 917 n.7 (Pa. 2000) (declining to
provide appellant with relief despite PCRA court’s failure to send required
notice, where appellant failed to invoke jurisdiction of the trial court by
pleading and proving the applicability of PCRA timeliness exceptions).
Accordingly Appellant’s claim that he is warranted relief by the PCRA court’s
failure to send notice pursuant to Pa.R.Crim.P. 907 is meritless.

Further, as Appellant did not object to the lack of Pa.R.Crim.P. 907 notice in
the PCRA court, this objection is waived for purposes of appeal. See
Pa.R.A.P. 302.




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     This Court’s standard of review regarding an order denying a petition

under the PCRA 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).

     In this case, the PCRA court dismissed Appellant’s petition without a

hearing. See PCRA Court Order, 4/21/16, at 1. There is no absolute right

to an evidentiary hearing.      See Commonwealth v. Springer, 961 A.2d

1262, 1264 (Pa. Super. 2008). On appeal, we examine the issues raised in

light of the record “to determine whether the PCRA court erred in concluding

that there were no genuine issues of material fact and denying relief without

an evidentiary hearing.” Springer, 961 A.2d at 1264.

     We begin by addressing the timeliness of Appellant’s petition, as the

PCRA time limitations implicate our jurisdiction and may not be altered or

disregarded   in   order   to   address   the   merits   of   his   claims.   See

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the

PCRA, any petition for relief, including second and subsequent petitions,

must be filed within one year of the date on which the judgment of sentence

becomes final. Id. There are three exceptions:

     (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


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       (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).         Any petition attempting to invoke these

exceptions “shall be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v.

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

       Appellant’s petition is patently untimely.3       Accordingly, in order to

reach the merits of his issues, he must plead and prove one of the

exceptions to the time bar.         See Bennett, 930 A.2d at 1267.      Although

Appellant acknowledges his petition is untimely, he claims he is entitled to

PCRA relief based upon the newly-discovered facts exception, namely, the

fact that a lead investigator in his case had an ongoing intimate relationship

and child with a Commonwealth witness.               See Appellant’s Brief at 9.

Appellant claims that he first discovered this information from another

inmate in August 2015, and that the evidence could not have been

discovered earlier. Id. at 9-10. Further, Appellant contends this evidence

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3
  Appellant’s judgment of sentence became final on September 8, 2006, at
the expiration of his thirty days to petition for allowance of appeal to the
Pennsylvania Supreme Court. See 42 Pa.C.S. § 9545(b)(3) (a judgment of
sentence becomes final at the conclusion of direct review or the expiration of
the time for seeking the review). Accordingly, he had until September 2007
to timely file a PCRA petition.



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would have been used to cross-examine the witness, which in turn would

have resulted in his acquittal. Id.

      The newly-discovered facts exception

      has two components, which must be alleged and proved.
      Namely, the petitioner must establish that: 1) the facts upon
      which the claim was predicated were unknown and 2) could not
      have been ascertained by the exercise of due diligence. If the
      petitioner alleges and proves these two components, then the
      PCRA court has jurisdiction over the claim under this subsection.

Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (internal

quotation marks and citations omitted; emphasis removed).

      Appellant has not pleaded or proved a time bar exception by newly-

discovered fact.    Here, Appellant’s petition averred only that he had

discovered the alleged relationship from “a fellow inmate” in August 2015.

The petition stated only that counsel was “still investigating” Appellant’s

allegations regarding the relationship and listed potential witnesses who

could be called with regard to this information, without identifying the

witnesses or what they were expected to testify to.     The petition did not

provide an affidavit from Appellant or any witness. Further, beyond a bald

assertion to that effect, the petition did not establish that the information

could not have been obtained previously through the exercise of due

diligence.   Thus, Appellant failed to plead and prove that the newly-

discovered facts exception applied to his petition. Bennett, 930 A.2d 1264,

1272 (Pa. 2007).




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     Appellant’s petition is untimely, and he has not satisfied a timeliness

exception to the requirements of the PCRA. Consequently, the PCRA court

was without jurisdiction to review the merits of Appellant’s claim, and

properly dismissed his petition. See Ragan, 932 A.2d at 1170.

     Order affirmed.

     Judge Moulton Joins.

     Judge Platt Concurs in the Result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/22/2017




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